To make the adoption valid the person must have the capacity to adopt as well as the right to adopt. To constitute a valid adoption, both things must be present.
Section 7 of Hindu Adoption Act 1956 deals with a capacity of male to take in adoption-
“Any male Hindu who is of sound mind and is not minor has the capacity to take son or daughter in adoption:
provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife 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.
Explanation- If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary.
Two more qualifications are necessary to be fulfilled to take a child in adoption;
1.He must not be a Minor
2.He must be of sound mind
Capacity of female to take in adoption
In old Hindu law, the power of adopting a son was very much restricted. She could only adopt the assent of her husband. Under the old Hindu law, no right of adoption was given to unmarried women.
Under Hindu Adoption act 1956, a divorced women or a widow women is authorized to take a child in adoption.
“Any female Hindu-
(a) who is of sound mind,
(b) who is not minor, and
(c) who is not married , or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has has been ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.
Under the Hindu Adoption Act, both males and females are authorized to take invalid adoption of child if they fulfill all the reasonable conditions mentioned in this act. Both males and females must have the capacity and right to take in Adoption.
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