Adoption is an act of giving and taking a child, male or female into the family having no son or daughter. Under the Shastric Law, only the father or mother could give a Child in Adoption. according to the Smritis, this power was derived from their having begotten the child. The new law allows the adoption of an orphan the power to give the orphan in adoption. The safeguard provided is that the guardian should obtain the permission of the court for giving the child in adoption. The Hindu Adoption and Maintenance Act, made Adoption a secular institution. It lays down various provisions relating to adoption and maintenance. The Act removed the restrictions under old law.
See.... Requisite of a valid Adoption
Who can give a Child in Adoption
Section 9 of the Hindu Adoptions and Maintenance Act 1956 speak about a person (father/mother/Guardian etc) who can give in adoption Section 9 of the said Act, run as follows -
(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of 1sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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.
(3) Subsection 3 omitted by Act 30 of 2010 prior ot its omisson it read as - The mother may give the child in adoption if the father is dead or 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 for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation- For the purposes of this section –
(i) the expression “father” and “mother” do not include an adoptive father and an adoptive mother;
“guardian” means a person having the care of the person or a child or of 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, and (ii) “court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
The Father -
The father cannot give the child in adoption without the consent of the mother of the child
The Mother -
The mother of an illegitimate child has the power to give the child in adoption and no question arise of putative father's consent. but the mother of a legitimate child has during the lifetime of the father, no power to give a child in adoption even with the consent of the father.
The Guardian -
The term Guardian includes both the De Jury and De Facto guardians. Thus, manager, secretary or any person in charge of an orphanage or a person who has brought up the child, or under whose care the child is, and give the child in adoption. A guardian can exercise the power only in the following cases -
(1) If the parents are dead
(2) If parents have finally and completely announced the world
(3) Parents have been judicially declared to be of unsound mind.
(4) If parents have abandoned the child, or
(5) If the parentage of the child is not known, just in the case of foundling or Refugee child.
Guardian Appointed or declared by Court | Family Law