7. Capacity of a male Hindu to take in adoption.
Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption.
Provided that, if he has a wife living, he shall not adopt except with the consent of his 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.
Explanation-
If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.
COMMENTS:
(i) The consent of wife envisaged in the proviso to section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her.
If the adoption by a Hindu Male becomes subject matter of challenge before the court the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or daughter in adoption;
Ghisalal v. Dhapubai, AIR 2011
(ii) During subsistence of a marriage a wife has no right to adopt, only to give consent in adoption if taken by her husband;
Malati Roy Chowdhury v. Sudhindranath Majumdar, AIR 2007
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