(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 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.
After the completion of the age of eighteen, a woman gets the capacity to adopt even though. she herself is unmarried. Where after the adoption, she is married, her husband would be step-father and she herself would remain adoptive mother as earlier. Adoption by an unmarried can also take place despite the fact that she is having an illegitimate child. - Ashoka Naidu v. Raymond AIR 1976 Cal 272.
A married woman has got no right to take in adoption during the subsistence of the marriage. But where the husband has completely and finally renounced the world or he had ceased to be Hindu or some competent court has declared him to be of unsound mind, the wife can adopt.- Dashrath V. Pandu 1977 Mah LJ 358
(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.
1[(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.
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
No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-
(i) he or she is Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
There is a bar imposed by this s. 10 and that being a married person cannot be adopted. But the case is different where there is some custom among Jats of Punjab and Haryana in having a legal sanction and judicially recognised where under the custom permits the adoption of married person-Amar Singh V.Tej Ram 1982 (84 )PunjLR 2387
The person above the age of 15 years cannot be given in adoption and if there is some custom permitting that the same must be strictly pleaded and proved-Mahalingam v. Kannayyar AIR 1990 Mad. 333. 1989 (2) MLJ 3441
Existence of custom be it family or tribal custom having its applicability to the parties concerned whereby the adoption of a person married or of the age of more than 15 years is permitted, is all that is required to be established by the provision of section 10 so as to make adoption valid.-Maya Ram v. Jai Narian 1989 (1) HLR 352
In every adoption, the following conditions must be complied with:
(i) if the adoption is of a son, the adoptive father or mother by whom adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption)living at the time of adoption;
(iii) if the adoption is by a 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;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty -one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more person;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth 1[or in case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption:
PROVIDED that the performance of datta homam shall not be essential to the validity of adoption.
Requirement of an age gap of 21 years between the adoptee and the adopted, if violated is sufficient to render the adoption invalid.- Golak Chandra v . Kritibas AIR 1979 Ori. 205
Where the case is, one child is given to the family of other so that the child is brought up, this giving of the child does not constitute adoption. There must be an intention to give and to take the child in adoption.-Kewal Singh v. Bakshish Singh 1975 (77) PunjLR 321
Absence of parents at the time of adoption ceremony and not proving the giving and taking the child in adoption, adoption was held invalid. v.Bakshish Singh-Kewal Singh 1979 HLR 431
For valid adoption she should be 21 years older than the baby that she likes to adopt.
And law needs both the parents (mother & father) should give the baby. ( If it is going to be in written form BOTH the parents mother and father have to sign the DEED OF ADOPTION ant also signed by the adoptive mother and deed should be registered according to law.