Code: Section 9 – Persons Capable of Giving in Adoption
(1) No person except the father, mother, or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of sub-section (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 save 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 competent jurisdiction to be of unsound mind.
(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind, or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person, including the guardian himself.
(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being given to the wishes of the child having regard to the age and understanding of the child. The court will also ensure that the applicant has not received or agreed to receive any payment or reward in consideration of the adoption except those the court may sanction.
Explanation:
(i) The expressions father and mother do not include an adoptive father or an adoptive mother.
(ii) Guardian means a person having the care of the child’s person or both his person and property and includes:
(a) a guardian appointed by the will of the child’s father or mother, and
(b) a guardian appointed or declared by a court.
(iii) Court means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
Explanation of Section 9 – Who Can Give a Child in Adoption
Section 9 of The Hindu Adoptions and Maintenance Act focuses on who is legally capable of giving a child for adoption. It establishes a clear hierarchy of who can provide consent for a child’s adoption, ensuring the child’s best interests are considered.
1. Who Can Give a Child in Adoption?
- Father or Mother: Both parents have the equal right to give their child for adoption. However, this right cannot be exercised without the other parent’s consent unless certain conditions apply (e.g., the other parent has renounced the world, is no longer a Hindu, or has been declared mentally unfit by a court).
- Guardian: If both parents are deceased, mentally unfit, or unable to care for the child, the guardian may give the child in adoption. The guardian must seek prior permission from the court. Additionally, the court will examine whether the adoption is in the child’s best interests.
2. Guardian’s Role in Adoption
- Permission from the Court: If the parents are unavailable or incapable, a guardian may adopt the child, but the court must first grant permission.
- Court’s Considerations: Before granting permission, the court ensures that the adoption benefits the child and that no financial transaction or reward has taken place for the adoption, except for court-approved expenses.
Illustration
To clarify Section 9, here are some examples:
- Example 1: A Hindu child’s mother wants to adopt her child to a couple. Since the father is alive, his consent is required for the adoption.
- Example 2: Both parents of a child are deceased, and the child has a legal guardian. The guardian seeks permission from the court to adopt the child. The court considers whether the adoption is in the child’s best interests.
- Example 3: A Hindu child’s father has been declared mentally unfit by the court, and the mother is alive. The mother can give the child in adoption without her husband’s consent.
Common Questions and Answers
1. Who can give a child for adoption under Section 9?
The father or mother of the child can give the child for adoption. If both parents are unavailable or incapable, the guardian can step in, but the court’s permission is required.
2. Does a guardian have the right to adopt a child without the parents’ consent?
A guardian can only adopt the child if both parents are deceased, mentally unfit, or unavailable, and the court grants permission. The guardian must demonstrate that the adoption is in the child’s best interests.
3. What does the court consider when granting adoption permission to a guardian?
The court ensures the adoption is in the child’s welfare, including considering the child’s wishes (depending on their age and understanding) and ensuring no payment or reward is exchanged except those sanctioned by the court.
Conclusion
Section 9 is a crucial provision that ensures the proper and legal process for giving a child in adoption. It protects the child’s rights and ensures that both parents are consulted (unless legally incapable) and that guardians can act only with judicial oversight.
For more details on adoption law or related queries, visit ApniLaw, a trusted resource for legal guidance.
