Where the mother has renounced the world or renounced Hinduism by embracing some other religion or where the court has declared her to be a lunatic, her consent would not be necessary. An adoptive father cannot give away the adoptive child in adoption to someone else.
An unmarried woman who has given birth to a child can give her child in adoption. So also the widow. A married woman is not competent to give the child in adoption so long as her husband is alive. But if the husband has renounced the world or ceased to be a Hindu or been declared by court to be a lunatic, she can give her child in adoption.
An adoptive mother cannot give the adopted child in adoption to someone else. ‘Mother’, means natural mother and so a step-mother, cannot give a child in adoption. Dhanra J. v. Smt. Suraj Bai, AIR 1975 SC 1103.
(iii) Guardian (Giving Orphan in Adoption):
Under the old law an orphan could not be given in adoption in the absence of a special custom. In Mareyya v. Ramalakshtni, 44 Mad. 260, it was argued that such an adoption is validated by the application of the doctrine of Factum Valet but the argument was repelled. It was held that only the father or mother had capacity to give in adoption and that this rule is mandatory.
Now the guardian can give an orphan in adoption provided he obtains the permission of the court for the purpose. In re Rasiklal v. Chhaganlal Mehta, AIR 1982 Guj. 193, the question arose as to the terms on which the court will grant permission to the guardian to give an orphan girl in adoption. The adoption in that case was proposed to be made by a German Couple (who had embraced Hinduism) and intended to take the orphan girl to Germany.
The court pointed out that in such a cross-country adoption the terms on which permission is to be granted will include consideration of the following factors: (1) whether the adoption is valid according to the law of the foreign country involved (Germany in this case). (2) Whether the adopted (orphan) can acquire the nationality of the adopter and will be permitted to immigrate to that country. (3) Periodical reports to the court regarding the maintenance and welfare of the adoptee.
These safeguards are designed to secure the welfare of the child so that he (or she) may not be exploited in the foreign country.
The Madras High Court in St. Thomas Mount Babies Home Holy Apostles Convent 2006 (3) CCC 220 (Mad), held that under Section 9 (4) and (5) of the Hindu Adoptions and Maintenance Act, 1956 a Foster Care Home can maintain an application under Section 9 (4) of the Act as it is the guardian under Section 9 of the Act. It can give a minor child in adoption with the permission of the Court.