Validity of Certain Adoptions under Hindu Adoptions Act, 1956

Under s. 11 (i) the presence of a son’s son is an impediment to a valid adoption. The adoption is invalid for this reason,

(c) A female having an illegitimate son adopts B.

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Only a legitimate son is an impediment to adoption, so the adoption is valid.

(d) A has a lunatic child and he adopts B.

The existence of a child is a bar to adoptions (s. 11 (i) and (ii)). The lunacy of the child does not remove this bar. So the adoption is invalid.

(e) A left two widows and after his death, each widow adopts a son.

The Act of 1956 does not contemplate a situation like this since it envisages monogamy. Prior to the Hindu Marriage Act of 1955 polygamy was allowed and so the widows would be governed by the pre-Act law if the adoption is a pre-act adoption. Under the pre-Act law the adoption could be made only to the husband.

As soon as the first adoption is made, the deceased husband would be having a son by adoption and so the latter adoption would be void. If the adoption is a post-act adoption, under s. 11 the only requirement is that the adopting widow should not have a son if she wants to adopt a son (s. 11(i)). An adoption can now be made by the widow to herself. So the adoptions would be valid.

(f) A left two widows and after his death both widows adopt an orphan boy.

The marriages would have been prior to Hindu Marriage Act, 1955. If the adoption is prior to the Act of 1956 the adoption of an orphan would be void. After the Act of 1956 as amended in 1962 an orphan may be adopted.

When two widows make an adoption jointly under the pre-act law the senior widow becomes the adoptive mother and the junior widow becomes a stepmother. But under s. 11, cl. (v) one child cannot be adopted simultaneously by two or more persons. So the adoption would be void.

In Sandhya v. Union of India, AIR 1998 Bom. 228, the constitutional validity of s. 11 under Arts. 14 and 21 was sought to be challenged. Section 11 of the Act prevents the adoption of more than one child belonging to the same gender. Holding that the constitutional rights are not attracted the court held, “a person could have any number of biological children, by grace of God. That does not certainly render support to claim to have any number of children by adoption”.

It added “the Act with its mythological and secular mission has stood the test of time for around four decades and has conveniently with­stood the assaults as attempted from time to time. We, therefore refrain from examining validity of the impugned provisions on the touchstone of Art. 14 and Art. 21”.

Following Gurunath v. Kamalabai, AIR 1955 SC 206 in Ningappa v. Shivappa, 1999 AIHC 2068 (Karn.) the court held that in the presence of daughter-in-law the widowed mother-in-law loses her right to adopt. The decision appears to be in contravention of statutory provisions which, does not lay down such prohibition.

However, the Supreme Court in Smt. Vijayalakshmamma v. B.T. Shankar, AIR 2001 SC 1424 : (2001) 4 SCC 558, it has been held that though the senior widow took adoption without the consent of junior widow the adoption is not illegal but junior widow is not divested of rights vested in her in the property left behind by her deceased husband.