Adoption” means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship. Three legislations allow Indian citizens to adopt children:
• The Hindu Adoption and Maintenance Act of 1956
• The Guardians and Wards Act of 1890
• The Juvenile Justice (Care and Protection) Act of 2000, amended in 2006
In your case your wife’s ex-husband, is still the natural guardian of the child under the Hindu law for adoption consent of biological father is must that is consent from your wife’s first husband is must and then adoption deed should be duly registered.
If your wife’s ex-husband is not available to give consent then you cannot adopt your child as latter has no right over the child born out of your wifes first marriage. Your wife’s ex husband does not consent to adoption there is no way you can adopt the child
In every adoption, the following conditions must be complied with :-
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption.
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted.
(iV) the same child may not be adopted simultaneously by two or more persons.
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family or its both (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption.
Deed of adoption has to be registered in your favor by biological father