Category: Adoption and Surrogacy

ISSUE:

Is permission of the co-widow of a late Hindu male necessarily required for adoption?

Does a Sapinda need to give permission to the widow to adopt when the wish of the husband is not known?

What is the scope for a legal adoption when there’s more than one widow?

RULE:

Hindu Adoption and Maintenance Act, 1956-

Section 7- Capacity of a male Hindu to take in adoption

Explanation- “If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.”

Section 8- Capacity of a female Hindu to take in adoption

Section 12- Effects of adoption: “…from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family”
Section 14(2)- “Where an adoption has been made with the consent of more than one wife, the senior-most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers.”

ISSUE:

Whether a Hindu couple, governed by the Hindu Adoption and Maintenance Act, 1956 can adopt a child when the already have child of their own, of the same gender, under the provisions of the Juvenile Justice Act of 2000?

RULE:

When the child to be adopted is orphaned, abandoned or surrendered child or a child in need of care and protection as defined in Juvenile Justice Act, the bar imposed by Section 11 (i) and (ii) of Hindu Adoption and Maintenance Act does not bar the Hindu having biological child from adopting the child of same gender.

ISSUE:

Since there were no civil laws for the non-Hindu adoption, in case of adoption, will the specific Muslim personal law be applied or the common umbrella act of Juvenile Justice Act 2000?

Whether the right to adoption irrespective of caste, creed religion be considered a fundamental right applicable to the society homogeneously?

RULE:

Article 44 of Indian Constitution

Article 41 of Juvenile Justice Act 2000-

Family and Personal Laws- Muslim Shariat Law for Adoption