Adoption under Hindu laws requires consent of the wife – Allahabad High Court

 While adjudicating upon a case passed an order stating that if a Hindu Man wants to adopt a child the consent of his wife is necessary. Even if the husband and wife are living separately and are not divorced in such cases the consent of the wife is necessary. If the consent is not obtained, then the adoption will not be considered valid. This order was passed by Justice J.J. Munir in the case of Bhanu Pratap Singh vs. State of Uttar Pradesh & Ors. [WRIT – A No. – 10300 of 2017].

The Single bench Judge of the High Court passed the above order dismissing the petition filed by the Petitioner. The Petitioner submitted that his uncle Rajendra Singh was serving in the forest department and while serving in this department he died. Therefore, the Petitioner was seeking an appointment in a compassionate quota on the grounds that his uncle i.e. Rajendra Singh had adopted him. The Petitioner gave evidence for the Hindu rites that were carried out on adoption in the year 2001. A deed of adoption dated 14.12.2009 was also placed on record by the Petitioner. The uncle of the Petitioner was living separately from his wife for many years but had not divorced her. The present writ was filed as the Department of Forest did not consider the Petitioner as a valid heir of the Rajendra Singh.

The counsel for the Petitioner cited various cases where the validity of adoption is in question factors like the ceremony of adoption and long duration of time has to be given due weight. After analysing a series of cases and hearing both sides the court was of the opinion that The court has said that the adoption of the petitioner has not been done in a legal manner as the Hindu adoption law requires wife’s consent to adopt a child until and unless the wife is not alive or ceased to be a Hindu, or a competent court declares her mentally unwell. Hence, in this, as the uncle of the Petitioner and his wife were living separately and were not divorced the consent for adoption was necessary. As in this case, no such consent was taken the adoption was not considered valid.

In this petition, there were no doubt that Smt. Phulmati was a wife living until the death of the late Rajendra Singh. The two were never divorced, howsoever estranged they might have been. A mere estrangement between the man and wife without disruption of the marital status, in accordance with the law, that may either be by a decree for divorce or annulment or by the death of the wife, would not take the case out of mischief of the proviso to Section 7, requiring the wife’s consent to the adoption.

As a result, this petition failed and stands dismissed.

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Judgement reviewed by-Sarita Kumari

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