RIGHT TO ADOPT OF A HINDU DESERTED WIFE

Introduction

According to the researcher’s interpretation, Adoption means taking a child from his biological parents
into one’s own family and treat him\her like own child. Any person who falls under the criteria of
Hindu under Hindu marriage act is entitled to adopt a child under Hindu adoption and maintenance
act fulfilling essentials are given under section 6 of same. But the question concerned in this article is whether a Hindu deserted wife can adopt a child?

What is Desertion

Desertion is a self-explanatory term that indicates neglecting someone. It occurs when a husband utterly disregards his wife’s existence and refuses to fulfill his fundamental responsibilities as a spouse, separation on the ground of displeasure by the husband in the relationship is the other way to describe the term. Desertion is a ground for divorce, which is mentioned in section 13(1) of the Hindu marriage act. The explanation of the provision states that “The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage” Offence of desertion is continuous in nature. This means that for making desertion grounds for divorce it should be continued for two years.

Essential Condition

A woman can only file a divorce if she has been neglected by her husband for a minimum of two years. Court provides these two years as a possible conciliation period. Thus, it can be said that the Legislature indirectly restricts the rights of complete separation with recognition under the law, leaving with no specific solution to the question of whether a deserted wife has the right to adopt a child during the desertion period.

Hindu Adoption Act gave equal rights to married as well as single Hindu individuals. Females
being single, divorced, and widowed have the absolute right to adopt and give residence and a parent
to a child in need. However, in the case of a married woman, the act provides that if a married woman wants to adopt a child she can only do so if she has the consent of her husband. The act does not
provide any separate provision for adoption by deserted women.

When a woman is deserted, she is still considered to be married in the eyes of law. She is neglected
by her husband; this means she is not provided with basic amenities and rights as a wife. A woman
who has been deserted is provided with basic maintenance by her husband as ordered by the court but
still remains in the matrimonial knot.

Section 8 of HAMA

According to section 8 of HAMA, which talks about the capacity of a Hindu female to adopt a child.
in the case of married women, the main essentials which are to be fulfilled are that she should be
either divorced, widowed, her husband has renounced the world or her husband should have been
declared as the unsound mind by the competent court.

Only in the above cases, a married woman can seek adoption. Whereas in the case of a single woman, she can adopt if she is a major, competent to take responsibility for a child, and of sound mind. However, a deserted woman who is neither fully married (because her husband neglects her) nor
single (because she is considered to be in a marital knot). In certain instances, the husband refuses
to agree to adoption because he would be responsible for the children’s wellbeing. As a result, she
is unable to proceed with the adoption without the consent of her husband, who has utterly neglected
her.

As a result, there are no current legal requirements stating a deserted woman’s right to adopt a child
without her husband’s permission.

There is a scope of change and improvement in every legal provision. As time evolves, there
are many factors that affect the changes in the law. Abolishment of various practices, change in
mentality, and evolution around the world are such factors.

In the landmark case of Brajendra Singh versus State of Madhya Pradesh,

“Mishri Bai, was disabled and was abandoned by her husband shortly after their wedding and began staying with her father, who provided her with a plot of land for her upkeep. She then adopted a child, Brajendra Singh. Mishri Bai made a will for her adopted child before she died, which included the factum of adoption. The son was relieved that their marriage had ended because they were no longer living together. The Supreme Court, however, ruled that there was no dissolution and that she was not the adoptive mother in her own right, but rather the adoptive mother of her deceased child, to whom the adoption was made. As a result, Mishri Bai was unable to adopt under the Act.”

Court held the adoption invalid in this case law, which clears the fact that a deserted woman is not
allowed to adopt a child and if she does so, it is held invalid in the eyes of law irrespective of the facts
evident of separate living.

Conclusion

There should be a provision that legalizes adoption by a deserted woman until and unless she has
emotional, physical, and financial well-being to raise a child. An adopted child should not suffer
due to the incapacity of the mother or father. He should be provided with all facilities which a normal
child would have. A woman should not be dependent on a male’s consent if she has been abandoned
by her husband for no reason at all. She should have the right to live a normal life and experience
motherhood. If a woman is well maintained and is capable enough to raise a child on her own she
should not be obligated to seek consent from anyone.

Adoption not only helps individuals experience parenthood but also helps in controlling population.
Couples who choose to adopt instead of having their own help in population control and give a
needy safe home. Therefore, adoption should be a flexible process and should be allowed without
any biasness. Everyone has the right to have a child in their life, and if they are capable of having one,
legal provisions should support their choice and not pull them back.

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Written By :

Chahat Bhatia (Legal Intern)