Divorcee’s power to adopt a child

Karthik.T | Sastra Deemed University Thanjavur | 19th July 2020

Brijendra Singh Vs State Of Madhya Pradesh

FACTS:

The fact of this case is a Hindu wife who is not divorced but who is leading her life like a divorced woman wants to adopt a boy child to look after her till her life. She wished to adopt the child because she is alone till now from the date of her marriage so for her protection she wishes to adopt a child. So she filed a petition in the supreme court for the validity of the adoption. The wife because of her physical deformity lived separately from her husband and too far a very long period right from the marriage date. Hence she adopted a son. 

ISSUES:

Whether she is capable to take in adoption

LEGAL PROVISION:

Section 8 of the Hindu Adoption and Maintenance Act, 1956.

PETITIONER CONTENTION:

The petitioner contended that she has the right to take in adoption and also she is of sound mind to be capable of taking in adoption. And also she stated that she is alone in her house and no one is there to look after her so for her protection she wishes to take in adoption. 

RESPONDENT CONTENTION;

The respondent contended that she doesn’t have the right to take in adoption as she is not a legally divorced wife till she remains as a legally wedded wife in the eyes of law. Section 8 clearly states that a divorced person has only can take in adoption hence the adoption is not valid

OBSERVATION MADE BY THE COURT:

The court observed all the contention of the petitioner and the respondent and held that there is conceptual and contextual difference between a divorced person and one who is leading a life like a divorced woman both can not be equated and they been as a husband and wife in the eye of law because they did not get their divorce and there is no dissolution of marriage they just living separately.

JUDGMENT:    

The court after observation held that she is not capable to take in adoption and hence her adoption is invalid. As section 8 of the Hindu Adoption and Maintenance Act clearly states that only a divorced person has the right to take in adoption in our case is not so.