Brajendra Singh Vs State of MP (2008) 13 SCC 161

Hon'ble Supreme Court of India observed as under -"A married woman cannot adopt at all during the subsistence of the marriage except when the husband 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. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife. This is clear from Section 7 of the Act. Proviso thereof makes it clear that a male Hindu cannot adopt except with the consent of the wife, unless the wife 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. It is relevant to note that in the case of a male Hindu the consent of the wife is necessary unless the other contingency exists. Though Section 8 is almost identical, the consent of the husband is not provided for. The proviso to Section 7 imposes a restriction in the right of male Hindu to take in adoption. In this respect the Act radically departs from the old law where no such bar was laid down to the exercise of the right of a male Hindu to adopt oneself, unless he dispossesses the requisite capacity. As per the proviso to Section 7 the wife's consent must be obtained prior to adoption and cannot be subsequent to the act of adoption. The proviso lays down consent as a condition precedent to an adoption which is mandatory and adoption without wife's consent would be void. Both proviso to Sections 7 and 8(c) refer to certain circumstances which have effect on the capacity to make an adoption"

Kashibai v. Parwatibai (1995) 6 SCC 213

Hon'ble Supreme Court of India observed that in the absence of the consent of one of the two wives, the adoption by the husband could not be treated as valid one.

Dhapubai (Dead) Widow of Gopalji through LRs Vs Ghisalal and others

decided by Hon'ble Supreme Court of India on 12.01.11
Whether mere presence of wife in the ceremonies performed by her husband for adoption of child amounted to her consent as contemplated by the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956 or not-
The term 'consent' used in the proviso to Section 7 and the explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the Court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation...
Unfortunately, all the Courts completely ignored that presence of Dhapubai in the ceremonies of adoption was only as a mute spectator and not as an active participant...
By no stretch of imagination, this could be equated with her active participation in the adoption ceremonies so as to enable the Courts to draw an inference that she had given consent for the adoption of Ghisalal.
adoption of Ghisalal by Gopalji was not valid because her consent had not been obtained as per the mandate of the proviso to Section 7 of the 1956 Act.

In the matter of adoption of Payal @ Sharinee Vinay Pathak, Bom HC on 16.09.09

The issue which arises before the Court is as to whether a Hindu couple governed by the Hindu Adoptions and Maintenance Act 1956, with a child of their own can adopt a child of the same gender under the provisions of the Juvenile Justice Act of 2000. Adoption is a facet of the right to life under Article 21 of the Constitution. The right to live that is asserted is, on the one hand, the right of parents and of individuals ­ women and men ­ who seek to adopt a child to give meaning and content to their lives. Equally significant, in the context of the Juvenile Justice Act, 2000, the right to life that is specially protected is the right of children who are in need of special care and protection. 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. 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. If the two pieces of legislation, both of which are enacted by Parliament are harmoniously construed, there is no conflict of interpretation. Alternatively 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. There is abundant material before the Court for the Court to conclude that it is manifestly in the interest and welfare of the child that the petition for adoption should be allowed.

HAMA- Sec8 Brijendra Singh v. State of M.P. 2008(2) RCR (Civil) 277 (SC) Section 8 speaks of what is described as `capacity'. Section 11 which lays down the condition for a valid adoption requires that in case of adoption of a son, the mother by whom the adoption is made must not have a Hindu son or son's son or grand son by legitimate blood relationship or by adoption living at the time of adoption. It follows from the language of Section 8 read with Clauses (i) & (ii) of Section 11 that the female Hindu has the capacity and right to have both adopted son and adopted daughter provided there is compliance of the requirements and conditions of such adoption laid down in the Act. Any adoption made by a female Hindu who does not have requisite capacity to take in adoption or the right to take in adoption is null and void. It is clear that only a female Hindu who is married and whose marriage has been dissolved i.e. who is a divorcee has the capacity to adopt. Admittedly in the instant case there is no dissolution of the marriage. Prior to the enactment of the Act also adoption of a son during the lifetime of a male issue was prohibited and the position continues to be so after the enactment of the Act. A married woman cannot adopt at all during the subsistence of the marriage except when the husband 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. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife.

Adoption Bhimashya v. Janabi @ Janawwa, 2007 (3) RCR (Civil) 534 (SC) Custom must be ancient, certain and reasonable as is generally said. It will be noticed that in the definition in Cl. (a) of Section 3 of the Act, the expression 'ancient' is not used, but what is intended is observance of custom or usage for a long time. The English rule that a 'custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary' has not been strictly applied to Indian conditions. All that is necessary to prove is that the custom or usage has been acted upon in practice for such a long period and with such invariability and continuity as to show that it has by common consent been submitted to as the established governing rule in any local area, tribe, community, group of family. Certainty and reasonableness are indispensable elements of the rule. For determination of the question whether there is a valid custom or not, it has been emphasized that it must not be opposed to public policy. A "custom", in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian Conditions.

HAMA-Sec19 Balwant Kaur v. Chanan Singh, 2000(2) RCR(Civil) 719 : (2000)6 SCC 310 This provision clearly indicates that if the widowed daughter- in-law is a destitute and has no earnings of her own or other property and if she has nothing to fall back upon for maintenance on the estate of her husband or father or mother or from the estate of her son or daughter, if any, then she can fall back upon the estate of her father-in-law. This provision also indicates that in case of a widowed daughter-in-law of the family if she has no income of her own or no estate of her husband to fall back upon for maintenance, then she can legitimately claim maintenance from her father or mother. On the facts of the present case, therefore, it has to be held that Appellant 1, who was a destitute widowed daughter of the testator and who was staying with him and was being maintained by him in his lifetime, had nothing to fall back upon so far as her deceased husband's estate was concerned and she had no estate of her own. Consequently, as per Section 19(1)(a) she could claim maintenance from the estate of her father even during her father's lifetime. This was a pre-existing right of the widowed daughter qua testator's estate in his own lifetime and this right which was tried to be crystallised in the Will in her favour after his demise fell squarely within the provisions of Section 22(2) of the Maintenance Act."

Adoption V.T.S. Chandrashekhara Mudalier v. Kulandeivelu Mudalier (AIR 1963 SC 185), substitution of a son for spiritual reason is the essence of adoption, and consequent devolution of property is mere accessory to it; the validity of an adoption has to be judged by spiritual rather than temporal considerations; and, devolution of property is only of secondary importance.