General Attorney
_________R.K.LUTHRA

Q: Is there any legal provision by which an adult woman (of any age) can be adopted as a sister? What is the procedure involved?
— M. N. Nair, Chennai
No. Adoption is a legal process pursuant to a State statute in which a child’s legal rights and duties towards his adoptive parents are substituted. The Hindu Adoption and Maintenance Act, 1956, provides that an adult male or female of sound mind has the ‘‘capacity to take a son or daughter in adoption’’. Further conditions of eligibility for adoption have been laid down and violation of any of these would render the child ineligible for adoption. It has been provided that the child should be a Hindu, not already adopted. A married person cannot be adopted. However, where custom or usage protects, such adoption may be made.

The Act specifies that a child of 15 years of age orabove is not fit to be taken in adoption. The Act does not permit theadoption of an adult unless that adoption is justified by custom. Even where there is a custom that persons who have attained majority cannot be adopted, the person concerned may be given in adoption by his/her parents or guardian and the consent of such adult to be adopted would be required for the same.

Other restrictions imposed by the Act are that in case the adoption is by a male and the person to be adopted is a female, the adoptive father must be at least 21 years older than the person to be adopted. The same applies to a female wanting to adopt a male child.

Q: My relative, while undergoing tube patency test, suffered cardiac arrest and immense brain damage. I believe there has been negligence in the choice of test taken and the care at the time of the test and while resuscitating her. I would like to file a case against the negligent doctors. How do I go about it? Further, I would like to know if criminal action can be taken against such doctors?
— Sanjay Mutha, Delhi
Remedy against medical malpractice or negligence is available under the Consumer Protection Act, 1986. Affected persons areconsumers who can claim deficiency in service. The Supreme Court has held that service rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment — both medicinal and surgical — would fall within the definition of services as provided under the Consumer Protection Act, 1986. However, this definition excludes those medical services rendered free of charge to a patient under a contract of personal service.

A complainant can move an application to the Consumer Disputes Redressal Forum claiming damages on grounds of medical negligence in cases where the medical service suffers from negligence and deficiency of reasonable skill and care. In addition, medical professionals can also be sued in contract for failure to take reasonable skill and care.

Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his abilities. But in cases where it can be established that the doctor has acted carelessly, negligently and in a manner which is not expected of a medical practitioner, action intorts would be maintainable.

Again, under the Indian Penal Code, a case of criminal negligence could be filed under Sections 337 and 338. These sections deal with causing hurt/ grievous hurt by doing any act so rashly or negligently as to endanger human life or the personal safety of others. The person responsible for causing hurt may be punished with imprisonment for a term which may extend to six months or with fine, which may extend to Rs 500. In a case where the hurt is of a grievous nature, imprisonment may extend to two years or with fine which may extend to Rs 1,000.
R. K. Luthra is the managing partner of Luthra & Luthra

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