Section - 9. Persons capable of giving in adoption
(1) No person except the father or mother the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provision of 1[sub-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 has been declared by a court of competent jurisdiction to be of unsound mind.
(3) 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; 2[***]
3[(ia) "guardian" means a person having the care of the person of 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.COMMENTS
Where the adoption takes place and step-son is given in adoption by step-mother having no capacity to give in adoption such an adoption is not valid one by virtue of s.5(1) read with s.6(ii)-Dhanraj v. Suraj Bai
1975 (Supp) SCR 73
It is the District Court where in the application for giving and taking in adoption has to be moved and not in the Family Court. How and in what manner the permission is to be made there is no such mention under the Act and the provisions that have to be followed are there as laid down under Guardians and Wards Act.- Central Bank Relief & Welfare Society, In re AIR 1991 Kar 6
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