Consent of even estranged wife must for a man to adopt child: Allahabad High Court

Overview

• The petitioner, Bhanu Pratap Singh was adopted by his uncle Rajendra Singh in 2001. His uncle had alienated from his wife before adopting the petitioner.

• After Rajendra Singh’s death, the petitioner sought compassionate employment in the Forest Department as per the provisions of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974.

• The Forest Department did not grant him employment contending that his adoption was not as per the rules.

• The petitioner then filed a writ petition before the Allahabad High Court challenging the department’s order.

Matter in issue (SLIDE 3, Heading followed by the text)

• As per Section 7 (capacity of a Hindu male to adopt) of The Hindu Adoptions and Maintenance Act, 1956, if a Hindu male has a wife ‘living’ at the time of adoption, then he has to take his wife’s consent with regard to the adoption.

• The question raised before the court was whether the word ‘wife living’ includes within its purview wife living separately from the husband but not divorced?

Judgement

• Justice JJ Munir held that, "A wife living apart from the husband, utterly estranged, is still a wife, until the marital bond between the parties is severed by a decree of divorce or nullity of marriage.”

• The court further stated that, “The provisions make it imperative for a Hindu male to secure his wife’s consent to an adoption that he makes, unless she 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.”

• The Allahabad High Court held that a husband needs to obtain his wife’s consent before going for adoption even if they are estranged or living separately without a divorce.

• The petition was therefore dismissed by the court on the ground that the adoption did not take place as per the provisions of The Hindu Adoptions and Maintenance Act, 1956 which requires wife’s consent to an adoption.

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