What are essentials of valid adoption of child as per provisions of Hindu adoption and maintenance Act?

 S 6 of Hindu Adoption and maintenance Act:- Requisites of a valid adoption.—No adoption shall be valid unless—

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

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Whether juvenile justice Act shall prevail over Hindu adoption and maintenance Act?

"The Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act, 2000 must be harmoniously construed. The Hindu Adoptions and Maintenance Act, 1956 deals with conditions requisite for adoption by Hindus. The Juvenile Justice Act of 2000 is a special enactment dealing with children in conflict with law and children in need of care and protection. While enacting the Juvenile Justice Act 2000 the legislature has taken care to ensure that its provisions are secular in character and that the benefit of adoption is not restricted to any religious or social group. The focus of the legislation is on the condition of the child taken in adoption. If the child is orphaned, abandoned or surrendered, that condition is what triggers the beneficial provisions for adoption. The legislation seeks to ensure social integration of such children and adoption is one method to achieve that object. The religious identity of the child or of the parents who adopt is not a precondition to the applicability of the law. The law is secular and deals with conditions of social destitution which cut across religious identities. The legislature in its wisdom clarified in sub-section (6) of Section 41 that the Court may allow a child to be given in adoption to parents to adopt a child of the same sex irrespective of the number of living biological sons or daughters. This provision is intended to facilitate the rehabilitation of orphaned, abandoned or surrendered children. The condition must apply to all persons irrespective of religious affiliation who seek to adopt children of that description. The object of rehabilitation and providing for social reintegration to orphaned, abandoned or surrendered children is a matter of high legislative policy. It is in effectuation of that policy that the legislature has stipulated that adoption of such a child must proceed irrespective of the marital status of a person taking in adoption and irrespective of the number of living biological children of the parents seeking adoption. Consequently, where the child which is sought to be adopted falls within the description of an orphaned, abandoned or surrendered child within the meaning of sub-section (2) of Section 41 or a child in need of care and protection under Clause (d) of Section 2, the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000 must prevail. In such a case the embargo that is imposed on adopting a child of the same sex by a Hindu under Clauses (i) and (ii) of Section 11 of the Hindu Adoptions and Maintenance Act, 1956 must give way to the salutary provisions made by the Juvenile Justice Act. Where, however, the child is not of a description falling under the purview of Chapter IV of the Juvenile Justice Act, 2000, a Hindu desirous of adopting a child continues to be under the embargo imposed by Clauses (i) and (ii) of Section 11 of the Act of 1956. If the two pieces of legislation, both of which are enacted by Parliament are harmoniously construed, there is no conflict of interpretation. Resolution of Conflicting provisions the alternate hypothesis.

Alternatively, even if there were to be a conflict between the provisions of the Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act of 2000, it is the latter Act which would prevail. This is on the well settled principle that when there are two special Acts dealing with the same subject matter, the legislation which has been enacted subsequently should prevail. The Supreme Court applied this principle in the context of a conflict between the Companies Act 1956 and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 in its decision in Allahabad Bank v. Canara Bank,MANU/SC/0262/2000 : (2000) 4 SCC 406. Where a later enactment does not expressly amend (whether textually or indirectly) an earlier enactment which it has power to override, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication amends the earlier so far as is necessary to remove the inconsistency between them. Bennion on Statutory Interpretation (5th ed., 2008) § 80: Implied amendment.

Here, the 1956 Act prohibits a Hindu from adopting a child when he or she already has a child of the same gender, and the 2000 Act creates a general right to adopt abandoned, surrendered, or orphaned children. While there is a presumption against implied amendment or repeal under Indian law, the Supreme Court has recognized that "this presumption may be rebutted where the inconsistency cannot be reconciled." Municipal Council, Palai v. T.J. Joseph MANU/SC/0032/1963: AIR 1963 SC 156, 1, 1564. If the 2000 Act is held to be inconsistent with the 1956 Act, when passing the later Act Parliament impliedly amended the Hindu Adoptions and Maintenance Act, 1956, to permit adoption of children in the specified subclass, irrespective of whether a person has children of the same sex."

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR

Darshana Gupta Vs. None & Anr.

S.B. CIVIL MISC. APPEAL NO. 144/15
DATE OF JUDGMENT:
February 9, 2015.
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Reportable
Citation;AIR 2015 Raj105

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When abandoned child can be given in adoption under Hindu adoption and maintenance Act?

Hence, on the basis of the aforesaid conversation, Sri Kaushlendra, has opined that the mother of the child namely, Maina is following the Hindu religion and is also nurturing her son following the Hindu religion. Copy of the report of Sri Kaushlendra Kumar, Sign Language Interpreter, Dr. Shakuntala Mishra Rehabilitation University, Lucknow submitted before the Superintendent, Rajkiya Mahila Sharajlaya, Lucknow is being filed herewith as Annexure No.A-1 to this affidavit." Thus, there is enough evidence on record to conclude that one of parents of the child, namely, his mother is a Hindu. Therefore, in accordance with the provisions contained in Explanation (b) appended to Section 2 (1) of the Hindu Adoptions Act, since one of the parents of the child is a Hindu and the child has been brought up in the Hindu traditions, the finding recorded by the learned court below that it is not decipherable as to whether the child is a Hindu or not, cannot be permitted to be sustained. The child Master Ansh can, therefore, be "regarded as Hindu" both in terms of Explanation (b) and Explanation (bb) to Section 2 (1) of the Act. 
In the light of above, since the child has been brought up as a Hindu and has been abandoned by his parents (reasons for arriving at the conclusion that the child is an abandoned child have already been given above), I do not have the slightest hesitation to hold that Master Ansh can, thus, be given in adoption as he is capable of being taken in adoption. 
ALLAHABAD HIGH COURT
MISC. SINGLE No. - 7224 of 2014

 Sohan Lal Vs  Addl. District & Sessions Judge Court No.9 Lucknow and Others

Hon'ble Devendra Kumar Upadhyaya,J. 
Citation;AIR2015 ALLAHABAD 33

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When State Women Protection Home can give abandoned child in adoption?

So far as the present case is concerned, admittedly, as to whether the father of the child is alive or dead is not known. In fact, no information about the father of the child is available. The information about the mother, of course, is available. She has not completely and finally renounced the world, neither has she been declared to be of unsound mind by any court of competent jurisdiction. Since the information about the mother of the child is available on record, it can also not be said that the parentage of the child is not known. 
What, however, needs to be considered in this case is as to whether the child can be said to have been abandoned. So far as the father of the child is concerned, since nothing about him is known, neither has anyone in any capacity claimed to be the father of the child, it can safely be concluded that the father of Master Ansh has abandoned him. However, in a case where child can be given in adoption where he/she has been abandoned, the abandonment of the child by both the father and the mother needs to be established. 
The word ""abandoned" is an adjective which means a deserted or forsaken person or animal or a thing. The verb "abandon" means to give up completely or to forsake or desert a person or a thing or to give up to another's control or mercy. 
In the instant case, it is found in the testimony of the Sign Language Interpreter that the mother of the child has not only shown her willingness to give the child in adoption but has also expressed that she will have no longing for the child even if he is given to custody of a family. 
Considering the fact that the mother of the child is incapable of taking care of her own self being a destitute lady who is presently living in State Women Protection Home and also taking into consideration the evidence on record including the affidavit filed by the Sign Language Interpreter and the Superintendent of the State Women Protection Home, I have no hesitation to hold that the mother has deserted the child as she has expressed that she will have no longing for the child. 
Desertion of the child in the peculiar facts and circumstances of the present case, would, in my opinion, amount to abandonment of the child and hence, in this view of the matter, the guardian, namely, the State Women Protection Home becomes capable of giving the child in adoption, though, with the previous permission of the court which should be satisfied that the adoption is for the welfare of the child. 
Case :- MISC. SINGLE No. - 7224 of 2014 

Petitioner :- Sohan Lal & Another 
Respondent :- Addl. District & Sessions Judge Court No.9 Lucknow and Others 

Citation;AIR 2015ALLAHABAD 33

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