Setting aside an adoption that took place 51 years ago, the Supreme Court in a recent judgement said the consent of the wife was a must to make the process legal.
Allowing the petition of a woman who had challenged her husband’s decision to adopt a boy in 1959, the bench comprising Justice GS Singhvi and Justice AK Ganguly said the wife was an active participant in the ceremonies of adoption.
“The wife's silence or lack of protest also cannot give rise to an inference that she had consented to the adoption,” the Bench said, adding that in case an adoption is questioned in a legal proceeding, it must be proved that the wife participated with “an affirmative mindset to support the action of her husband to take a son or a daughter in adoption.”
The court passed the verdict on an appeal by on Dhapubai challenging the concurrent findings of the subordinate courts that upheld the adoption by her husband of a five-year-old boy, Ghisalal, in 1959.
Dhapubai sought the invalidation of the adoption claiming her husband had not sought her consent. She argued before the court that her mere presence “as a spectator in the assembly” at the time of the adoption ceremony “could not be treated as her consent.”
The impact of this verdict is that Ghisalal is no more an adopted child of Dhapubai and her late husband Gopalji. He can’t enjoy the estate and gifts bestowed on him by virtue of a “valid” adoption.
Before the law on adoption was amended, a Hindu male had an absolute right to adopt a male child and his wife did not have the locus standi to question his right or to object to the adoption.