Edited by: Vaani Garg
For a valid adoption, both capacity and right to take adoption must be present. So the capacity and right to take adoption both are different things. A person may have capacity but at the same time he may not have right to adopt.
To constitute a valid Adoption both things must be present :-
1. Capacity to take adoption
2.Right to take Adoption
The Rights of a person to take a child in adoption are discussed in clause 1 to 5 of section 11 of Hindu Adoption Act,1956
1.If the Adoption is of son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, at the time of adoption;(whether by legitimate blood relationship or by adoption).
2. If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have Hindu daughter or son’s daughter living at the time adoption;(whether by legitimate blood relationship or by adoption)
3.If the adoption is by male and the person to be adopted is a female ,the adoptive father is at least twenty -one years older than the person to be adopted;
4.If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least 21 years older than the person to be adopted;
5.The same child may not be adopted simultaneously by two or more persons;
6.The child to be adopted must be actually given and taken in adoption by the parents or guardian or undef their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.
Difference in the age– This condition is important and required for adoption of children. It is unalterable and it is a condition of precaution, and is not subject to any variations by any custom and usage.
Both male and female must fulfill all the conditions to have right to take in adoption and as well as capacity to take in adoption . Under old Hindu law female right to take adoption was restricted.But under this act, both male and female may have right to take in adoption.