Giving a Child for adoption means physical transfer of child from biological parents to the Adopted parents. In old Hindu Law for giving a Child for adoption only father and mother were capable and at that time it was complete and appropriate law. According to time the law modified and Under Present Law Father, Mother and Guardian are Capable to Give a Child for Adoption.
Old Hindu Law
Who can Give a Child for Adoption? Under Old Hindu law Father and Mother were only person if alive who could give a child for Adoption.
Capacity of Father to give a Child for Adoption.
Only Father had definite right to give child for Adoption. Father was capable to Give child for Adoption without the consent of Child’s Mother.
Capacity of Mother for Giving Child for Adoption.
If mother wanted to give her child for adoption specially son the consent of her husband was must.
Present Hindu Law
In present Hindu Law Father, Mother and Guardian can give a child for Adoption. Sec.9 of Hindu Adoption and Maintenance Act, 1956 provides the person who are capable and can give a Child for Adoption.
Father has primary right to give child for Adoption, but consent of his wife is required. But If father is incapable or disable then the right directly transferred to the mother of the child.
Mother has also right to give her child for Adoption after the personal Law Amendment of 2010.
Mother can give a child for Adoption by consent of child’s father only otherwise mother has no right to give a child for Adoption till child’s father is alive or capable. But in some cases, mother get full right to give a child for adoption.
i). When father is incapable to give his consent.
ii). Civil death of father or renounced the world.
iii). After the death of the Father.
iv). If father has been judicially declared to be of unsound mind.
In case if father has totally prohibited to give a child for adoption before or after in expressed or implied manner than mother has no right to give her child for Adoption. The mother of illegitimate child has power to give the child in adoption without the consent of putative father.
AIR 1973 in case Dhanrai Vs. Suraj
It was held that the word mother does not include stepmother or adoptive mother has no capacity to give the child for adoption. Under Sec. 9(4) The father or the mother, if alive, shall have equal right to give a son or daughter in adoption. Provided that such right shall not be exercised by either of them saves with the consent of the other unless one of them has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of jurisdiction to be of unsound mind.” Mother does not lose her right to give her child for adoption after divorce.
Guardian has right to give a child for adoption only in absence of father and mother of the child.
To give a child for adoption the de-facto and de-jure both guardians have right. The circumstances where guardian can give a child for adoption are
i). Physical Death of parents.
ii). Civil Death of parents.
iii). Parents are of unsound mind but have been declared judicially.
iv). When child is abandoned by parents.
v). If parentage of child is unknown which means foundling or Refugee child.
In all these cases (mentioned above) the Guardian can give a child for adoption, but prior permission of court is necessary.
AIR 2015 case Sohan Lal v. Addl
The district and session Judge in this case held that for child whose father was not known, and mother was deaf and dumb for that child protection home where the child was living will be guardian.
Prior permission of court is necessary for Guardian to give a child for adoption.
Adoption is done for welfare of child, which is paramount within eyes of law so, permission of court is must.
The Character, Qualification and Financial conditions of proposed Adopter may also be taken into consideration by Court. That means all the ups and downs will be taken into consideration base on two places first is the place where child is and second the place where the child will be taken to.
Court can refuse the adoption order if it finds that paying it is less advantage for child welfare.
*Dr. Paras Diwan Book on family Law.
*Personal Law Amendment Act 2010 pdf as visited on 22 April.