Post on 21-Jan-2023
Adoption Deed and Process In India
A Critical Analysis
Project of Drafting, pleading and Convincing
Submitted to-
Submitted by-
Dinesh Babu
Sandeep Sharma
(Associate Professor)
(IXth Sem)
1
Jaipur National University
SSLG
DECLARATION
I declare that the dissertation entitled “Adoption Deed and
Process in India: A Critical Analysis” is the outcome of my own
work conducted under the supervision of Associate Prof. Dinesh
Babu at Jaipur National University, Jaipur (Rajasthan).
I further declare that to the best of my Knowledge the
dissertation does not contain any part of any work, which has
been submitted for the award of any degree either in this
University or in any other University / Deemed University without
proper citation.
SANDEEP SHARMA
Dated:-
2
CERTIFICATE OF THE SUPERVISOR
This is to certify that the research work entitled “Adoption Deed
and Process in India: A Critical Analysis” is the work done by
Sandeep Sharma under my guidance and supervision for the Partial
fulfillment of the requirement of BA.LLB.(Hons.) degree of
Jaipur National University, Jaipur(Rajasthan). India. To the best
of my Knowledge and belief the dissertation: (i) embodies the
work of the candidate himself; (ii) has been duly completed; and
3
(iii) is up to the standard both in respect of contents and
language for being referred to the examiner.
Associate
Prof. Dinesh Babu
Professor of Law
Supervisor
4
ACKNOWLEDGEMENT
I would like to express profound gratitude to Associate
Prof. Dinesh Babu, for his invaluable support, encouragement,
supervision and useful suggestions throughout this research work.
His moral support and continuous guidance enabled me to complete
my work successfully. His intellectual thrust and blessings
motivated me to work rigorously on this study. In fact this study
could not have seen the light of the day if his contribution had
not been available. It would be no exaggeration to say that it is
his unflinching faith and unquestioning support that has provided
the sustenance necessary to see it through to its present shape.
I am grateful to our Hon’ble Director Prof. V. S. Mani,
Seedling School of Law & Governance , Jaipur for his evincing
keen interest in the BA.LLB. (Hons.) Course and continuous
encouragement given during our period of study. I express my
regards to my learned teacher Assistant Prof. Manish Yadav who
rendered all help as and when required. His most valuable
suggestions while vetting the study always proved handy.
I express my sincere thanks to my respected teachers
Assistant Professor Dharmpal Singh , Assistant Professor Komal
Audchiya, Assistant Professor Nishant Ojha, Assistant Professor
Karn Bhardwaj , Assistant Professor Anindhya Tiwari and Assistant
Professor Aashu Maharshi for taking out their precious time and
advising me on various aspects of the study.
5
Among those who have sustained me over the years with their
loyalty and friendship, I would particularly mention my friends,
Anchit Verma, Ravish Sharma, Pankaj Arora and Shreyak Paliwal
have always taken a special interest in my work and unconditional
support at each turn of the life.
My sincere appreciation also extends to all my colleagues Hemant
Arora, Nishant Arora, Ankit Mathur, Chetendeep Singh and
Purshottam Kaushik for a fruitful and enjoyable time in preparing
for this dissertation.
I must also thank and express my heartfelt gratitude to the
library staff of Seedling School of Law & Governance , Jaipur, .
I express my deep sincere gratitude towards my parents for their
blessing, patience, and moral support in the successful
completion of BA.LLB. (Hons.) course.
I express my gratitude to my all teachers and friends who has
supported and encouraged me during my study at national law
institute university Bhopal.
SANDEEP SHARMA
6
Cases Referred
1. Ghisalal v. Dhapubai AIR 2011 SC 644
2. Hindu; Kumar Sursen v. State of Bihar AIR 2008 Pat 24.
3. M. Gurudas v. Rasaranjan AIR 2006 SC 3275.
4. Suma Bewa v. Kunja Bihari Nayak AIR 1998 Ori 29.
7
5. Brajendra Singh v. State of Madhya Pradesh AIR 2008 SC 1056.
6. Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse
AIR 2006 Bom 123.
7. Nemichand Shantilal Patni v. Basantabai AIR 1994 Bom 235.
8. Urmila Devi v. Hemanta Kumar Mohanta AIR 1993 Ori 213.
9. Raghunath Behera v. Balaram Behera AIR 1996 Ori 38.
10. Narinderjit Kaur v. Union of India AIR 1997 P&H 280.
11. Basavarajappa v. Gurubasamma (2005) 12 SCC 290.
12. Devgonda Raygonda Patil v. Shamgonda Raygonda Patil AIR 1992
Bom 189.
13. Pathivada Rama Swami v. Karoda Surya Prakasa Rao AIR 1993 AP
336.
14. N.R. Trivedi v. District Education Officer, Anand AIR 2004
Guj 53.
15. Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao AIR 1994
AP 134.
8
ContentsDECLARATION..........................................................2CERTIFICATE OF THE SUPERVISOR........................................3
ACKNOWLEDGEMENT......................................................4Cases Referred.......................................................6
Intorduction.........................................................9ADOPTION IN INDIA....................................................9
1. What is Adoption?...............................................92. How is adoption regulated in India?.............................9
3. Who can adopt?..................................................94. What conditions have been stipulated?..........................10
Adoption Deed Process...............................................11DRAFT: ADOPTION DEED TO ADOPT A CHILD...............................11
ADOPTION BY AN UNMARRIED HINDU WOMAN................................15Adoption Deed- Consent of Wife......................................16
Consent of wife required for valid adoption by Hindu Male: Supreme Court............................................................16
5. Adoption to be regulated by this Chapter. –.....................216. Requisites of a valid adoption.-................................21
Requirements for a valid adoption................................217. Capacity of male Hindu to take in adoption.-....................22
8. Capacity of a female Hindu to take in adoption.-................22Capacity of female Hindu to adopt................................23
9. Persons capable of giving in adoption.-.........................23Explanation......................................................24
10. Persons who may adopted.-......................................24Capacity to adopt................................................25
9
11. Other conditions for a valid adoption.-........................25Conditions for adoption..........................................26
Deed of adoption...................................................2712. Effects of adoption.-..........................................27
Effect of adoption...............................................28Right in property after adoption.................................28
Vested property..................................................2814. Determination of adoptive mother in certain cases.-............29
15. Valid adoption not to be cancelled. –..........................2916. Presumption as to registered documents relating to adoption.-..29
Burden of proof..................................................30Registered Documents.............................................30
17. Prohibition of certain payments.-..............................31Prohibition of payment or reward in consideration of adoption....31
Summary of Adoption Procedure.......................................33Notice.............................................................33
Petition...........................................................33Consent............................................................33
Probation..........................................................34Decree.............................................................34
Conclusion..........................................................35Bibliogrphy.........................................................36
10
Intorduction
ADOPTION IN INDIA
1. What is Adoption?
Adoption is the process whereby a child not born to a parent(s),
is taken as one’s own, through a legal process which declares
the child as the child of her adoptive parent(s) and confers on
her, all the rights and privileges of a natural child.
2. How is adoption regulated in India?
Adoption is regulated by the Ministry of Women and Child
Development, Government of India. The Central Adoption Resource
Authority (CARA) (www.cara.nic.in ) an autonomous body under the
Ministry formulates policy and regulates practice. Childcare
Agencies recognized by the State Government are further licensed
by CARA to place children in adoption. CARA monitors their
performance through the state government machinery.
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3. Who can adopt?
The following person(s) can adopt:
An individual irrespective of his or her marital status;
parents who are already biological parents;
a childless couple.
4. What conditions have been stipulated?
The following conditions have been stipulated:
(1) An individual above 25 years of age, irrespective of his/her
marital status.
(2) Parents, irrespective of the number or sex, of the living
biological children.
(3) A childless couple.
(4 )A married couple must be married for more than 2 years and
the marriage must be stable.
(5) A married couple whose composite age does not exceed 90 years
and where the individual ages of either of the prospective
parents is not less than 25 years and more than 50 years may
adopt a child of less than 3 years of age.
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(6) A married couple whose composite age does not exceed 105
years and where the individual ages of either of the prospective
parents is not less than 25 years and more than 55 years may
adopt a child above the age of 3 years;
(7) A single PAP should not be less than 30 or more than 45 years
to be eligible to adopt a child below 3 years.
(8) A single PAP should not be less than 30 or more than 50 years
to adopt a child above 3 years
Couples in live-in relationship are not eligible.
(9) The PAPs should have adequate financial resources to provide
a good
upbringing to the child.
(10) The PAPs should have good health and should not suffer from
any contagious or terminal disease or any such mental or
physical condition, which may prevent them from taking care of
the child.
(11) Except in the case of siblings, a second child may be
adopted only when the legal adoption of the first child has been
finalized.
(12) A single male cannot adopt a girl child.
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Adoption Deed Process
DRAFT: ADOPTION DEED TO ADOPT A CHILD
THIS DEED OF ADOPTION
DATED:-………………………………..
BETWEEN
1. ADOPTIVE FATHER/MOTHER
NAME: ……………………..
FATHER/HUSBAND NAME:………………………………..
Aged...........years,
RELIGION………………………….
CASTE:………………………………
RESIDING AT…………………………………….
2. NATURAL FATHER/ MOTHER/GUARDIAN
NAME: ……………………..
FATHER/HUSBAND NAME:………………………………..
Aged...........years,
RELIGION………………………….
CASTE:………………………………
RESIDING AT…………………………………….
WHEREAS :
14
The Adoptive Father has no son or son’s son or son’s son’s son
living and he is desirous of adopting a suitable boy to be his
son and the son of his wife ……………………………. who is living. / The
adoptive Father has no daughter or son’s daughter living./ The
Adoptive Father is more than twenty-one years older than the said
………………….(ADOPTED CHILD NAME) / The Adoptive Mother is a widow
having no son or son.s son or son.s son.s son living./ The
Adoptive Mother remained unmarried and has no intention to marry
at all in view of her fairly advanced age.
The Natural Father has agreed to give his son …………………. now aged
about........... years in adoption to the Adoptive Father./ The
said Guardian having consented to the said proposal of the
Adoptive Father & the Guardian declares that necessary
application was made to the............ District Judge Court
under the provisions of the Guardians and Wards Act, 1890 for
necessary permission to give the said ……….. in adoption to the
Adoptive Father and the required permission has been granted by
the District Judge vide his Order.................
dated.............. subject to the conditions that the adoptive
parents should submit to the Court.s jurisdiction and furnish a
periodical report pertaining to the maintenance and well being of
the adopted daughter in the hands of the adoptive parents.
15
The Adoptive Father has the only wife ……………………... living who has
given her consent to the said adoption. / Whereas the Adoptive
Father is anxious to adopt a daughter expeditiously owing to his
serious ill health so as to take care of him as his wife is
dead./ The Adoptive Mother is desirous of taking a son in
adoption owing to her indifferent health and advanced age, lest
she may die and her property be wasted and her lineage be extinct
once for all. The Adoptive Mother is desirous of taking a
daughter in adoption to take care of her person and property at
her old age (as she has no other kith or kin or lineal descendent
of her husband).
The Natural mother of ……………. is dead and the Natural Father being
married to …………………………. who is the step-mother of ……………… her
consent to the adoption is not necessary./ The Natural Mother has
agreed to give her ………………………. Now about.............years in
adoption to the Adoptive Mother, (as she is unable to maintain
her big family comprising ……… daughters and ………….. sons, all
…………….minors…………….majors).
The Adoptive Father and his wife declare that they fulfill the
requirement of the law of adoption as prevailing in this country
as well as in ………………………,
that they have the requisite permission to adopt from the
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appropriate authorities in their country, that the adopted
daughter/son will be able to immigrate to the Country of the
adoptive parents, that she/he will be able to obtain the
Nationality of the adoptive parents, and that he/she will be able
to come to India occasionally whenever he/she desires.
The Guardian declares declares that he has duly scrutinized the
proposal of the said Adoptive Father with regard to adoption and
made necessary inquiry with the assistance of …………………. And found
that the adoption would be beneficial to the child, financially,
socially, morally and in every respect.
The Guardian further declares that he has also caused necessary
investigations into the economic status and social conditions of
the family of the adoptive parents and on the questions of health
and psychological preparedness for adoption by the Adoptive
parents as well as the child’s acceptance within the community of
the adoptive parents, through the assistance of …………………… Guardian
is satisfied that the adoption will be beneficial to the adopted
daughter and will be in the interest of her/his welfare.
The said …………………………….(ADOPTED CHILD NAME) is still unmarried.
NOW THIS DEED WITNESSES that the said Natural Father has this
17
day, after performing the necessary religious ceremonies before a
gathering of friends and relatives of both the parties held
at......... (place) at..........(time) given the said ……………. his
son, to the Adoptive Father who has taken the said …………. in
adoption and that the said ……………… shall have all the legal rights
of and in the Hindu Coparcenary of the Adoptive Father from this
day as if he (………….) were his (Adoptive Father) natural son.
IN WITNESS whereof the said …………………….(the Adoptive Father), the
said ……………………….. (the Natural Father) and the said Smt. …………..
(wife of ………..) have hereunto signed these presents in the
presence of all friends and relatives gathered, two of whom at
the request of the parties have also hereunto signed as attesting
witnesses, on this date first above written.
Witness . (Signature)
NOTE: IMP RULES OF ADOPTION
Section 8 of the Hindu Adoptions and Maintenance Act recognises
the right among other female Hindus, of a widow to adopt a son or
daughter to herself. Under the law prevailing prior to the Hindu
Succession Act, 1956 no female including a wife or a widow could
adopt a son to herself. The effect of adoption by a widow of a
son or daughter is that for all purposes the adoptee becomes the
18
son or daughter not only of the widow but her deceased husband as
well with the same status as that of a natural-born child with
all the consequences and incidents of that status including
succession to all their relations.
After an adoption the adopted child shall be deemed to be the
child of his or her adoptive parents with all the legal incidents
and rights flowing therefrom as that of an after-born natural son
or natural daughter of the adoptive parents. sec. 12 lays down
that the adopted child shall not divest any person of any estate
which vested in him or her before the adoption hence it does not
preclude the adopted child from claiming his share in the joint
family properties, for if a share is given to the adopted child
there is no question of divesting any person of any estate which
vested in him before adoption.
According to sec. 10 the person to be adopted should not have
completed the age of fifteen years, unless there is a custom or
usage whch permits persons who have completed the age of fifteen
years being taken in adoption.
ADOPTION BY AN UNMARRIED HINDU WOMAN
THIS DEED of adoption made on this___________ day of
_____________by Kum. ____________________,d/o
19
Sh._________________ r/o___________________. WHEREAS
1. That I, ______________, am the only living daughter of Sh.
________________,s/o Sh._____________, not married and does not
intend to marry hereafter.
2. I have this day adopted __________ (name of the child), son of
Sh. _____________r/o __________________, aged ___ as my son and
the said child having been given to me in adoption by his father
with the consent of the child’s mother.
3. The ceremony of giving and taking in adoption has been duly
performed on ________ along with other religious ceremonies. NOW
I, ____________, hereby declare that I have adopted the said
child as my son and the said child shall have, from the date of
adoption, all the legal rights and liabilities of an adopted son.
I further confirm that I have executed this deed out of my free
will without any compulsion from any person. IN WITNESS WHERE OF,
I am signing this deed this ___________ day of ______________.
WITNESS:
1.
2. __________________
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Smt.______________
Adoption Deed- Consent of Wife
Consent of wife required for valid adoption by Hindu Male:
Supreme Court
Making a reference to the provisions of the Hindu Adoptions and
Maintenance Act, 1956 and contrasting it with the Hindu law as
prevailing before its enactment, the Supreme Court in its recent
decision [Ghisalal v. Dhapubai1 , later reported as] has declared
that it is mandatory for a Hindu male to take consent of his
wife, unless she is incapacitated from giving consent, before
adopting a child.
The Supreme Court expressed the position of law in the following
terms;
Section 6 reproduced above enumerates the requisites of a
valid adoption. It lays down that no adoption shall be
valid unless the person adopting has the capacity as also
the right to take in adoption; the person giving in
adoption has the capacity to do so; the person adopted is
capable of being taken in adoption, and the adoption is
made in compliance with the other conditions mentioned in 1 AIR 2011 SC 644
21
Chapter II. Section 7 lays down that any male Hindu who is of sound
mind and is not minor has the capacity to take a son or a daughter in
adoption. This is subject to the rider enshrined in the proviso which lays
down that if the male Hindu has a wife living then he shall not adopt
except with the consent of his wife unless she is incapacitated to give the
consent by reason of her having completely and finally renounced the
world or her having ceased to be a Hindu or she has been declared by a
court of competent jurisdiction to be of unsound mind. The explanation
appended to Section 7 lays down that if a person has more
than one wife living at the time of adoption, then the
consent of all the wives is sine qua non for a valid
adoption unless either of them suffers from any of the
disabilities specified in the proviso to Section 7. Section
8 enumerates the conditions, which must be satisfied for
adoption by a female Hindu. Section 12 deals with effects
of adoption. It declares that from the date of the
adoption, an adopted child is deemed to be a child of
his/her adoptive father or mother for all purposes and his
ties in the family of his or her birth shall stand severed
and replaced by those created in the adoptive family.
Proviso (a) to this section contains a restriction on the
marriage of adopted child with a person to whom he or she
could not have married if he or she had continued in the
family of his or her birth. Clause (b) of the proviso saves
the vested right of the adopted child in the property
subject to the obligations, if any, attached to the
22
ownership of such property, including the obligation to
maintain relatives in the family of his or her birth.
Likewise, clause (c) to the proviso lays down that the
adopted child shall not divest any person of any estate
vested in him or her before the date of adoption. Section
16 which embodies a rule of presumption lays down that
whenever any document registered under any law for the time
being in force evidencing adoption and signed by the person
giving and person taking the child in adoption is produced
before any court, then it shall presume that the adoption
has been made after complying with the provisions of the
Act unless proved otherwise.
In Indian society, a male spouse enjoyed the position of dominance for
centuries together. This was particularly so in Hindu families. Under the old
Hindu Law, a Hindu male had an absolute right to adopt a male child and
his wife did not have the locus to question his right or to object to the
adoption. A wife could adopt a son to her husband but she could not do so
during her husband’s lifetime without his express consent. After his death,
she could adopt a son to him, in certain parts of India, only if he had
expressly authorized her to do so. In other parts of India, she could adopt
without such authority. However, in no case a wife or a widow could adopt
a son to herself. An adoption by a woman married or unmarried of a son to
herself was invalid and conferred no legal rights upon the adopted person.
A daughter could not be adopted by a male or a female Hindu. The physical
act of giving was a prime necessity of the ceremonial requirements
23
relating to adoption. As to datta homam, that is, oblations of clarified
butter to fire, the law was not finally settled and there was divergence of
judicial opinion.
After India became a sovereign, democratic republic, this position has
undergone a sea change. The old Hindu Law has been codified to a large
extent on the basis of constitutional principles of equality. The Hindu
Marriage Act, 1955 codifies the law on the subject of marriage and divorce.
The Hindu Succession Act, 1956 codifies the law relating to
intestate succession. The Hindu Minority and Guardianship
Act, 1956 codifies the law relating to minority and
guardianship among Hindus. The 1956 Act is also a part of
the scheme of codification of laws. Once the Hindu
Succession Act was passed giving equal treatment to the
sons and daughters in the matter of succession, it was only
logical that the fundamental guarantee of equality of a
status and equality before law is recognized in the matter
of adoption. The 1956 Act now provides for adoption of boys
as well as girls. By virtue of the proviso to Section 7,
the consent of wife has been made a condition precedent for
adoption by a male Hindu. The mandatory requirement of the
wife’s consent enables her to participate in the decision
making process which vitally affects the family. If the
wife finds that the choice of the person to be adopted by
the husband is not appropriate or is not in the interest of
24
the family then she can veto his discretion. A female Hindu
who is of a sound mind and has completed the age of
eighteen years can also take a son or daughter in adoption
to herself and in her own right. A female Hindu who is
unmarried or a widow or a divorcee can also adopt a son to
herself, in her own right, provided she has no Hindu
daughter or son’s daughter living at the time of adoption
[Sections 8, 11(1) and 11(2)]. However, if she is married,
a female Hindu cannot adopt a son or a daughter during the
lifetime of her husband unless the husband is of unsound
mind or has renounced the world. By incorporating the requirement
of wife’s consent in the proviso to Section 7 and by conferring independent
right upon a female Hindu to adopt a child, Parliament has tried to achieve
one of the facets of the goal of equality enshrined in the Preamble and
reflected in Article 14 read with Article 15 of the Constitution.
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 and if that is done, it would be reasonable
to say that 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
25
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 a daughter in adoption. The presence of wife as a
spectator in the assembly of people who gather at the place where the
ceremonies of adoption are performed cannot be treated as her consent. In
other words, the Court cannot presume the consent of wife simply because
she was present at the time of adoption. The wife’s silence or lack of
protest on her part also cannot give rise to an inference that she had
consented to the adoption.
In Brajendra Singh v. State of M.P. 2,the Court considered
the scope of Sections 7 and 8(c) of the 1956 Act in the
backdrop of the claim made by the appellant that he was
validly adopted son of Mishri Bai, who was married to Padam
Singh but was forced to live with her parents. In 1970,
Mishri Bai claims to have adopted the appellant. After some
time, she was served with a notice under Section 10 of the
M.P. Ceiling on Agricultural Holdings Act, 1960 indicating
that her holding of agricultural land was more than the
prescribed limit. In her reply, Mishri Bai claimed that she
2 (supra)26
and her adopted son were entitled to retain 54 acres land.
The competent authority did not accept her claim.
Thereupon, Mishri Bai filed suit for declaration that the
appellant is her adopted son. During the pendency of the
suit, she executed a registered Will bequeathing all her
properties in favour of the appellant. The trial Court
decreed the suit. The first appellate Court dismissed the
appeal preferred by the State of Madhya Pradesh. The High
Court allowed the second appeal and held that in the
absence of the consent of Mishri Bai’s husband, adoption of
the appellant cannot be treated as valid. This Court
noticed that language of Sections 7 and 8 was different and
observed:
“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
27
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.”
In view of the above discussion, we hold that the concurrent
finding recorded by the trial Court and the lower appellate
Court, which was approved by the learned Single Judge of the
High Court that Gopalji had adopted Ghisalal with the
consent of Dhapubai is perverse inasmuch as the same is
based on unfounded assumptions and pure conjectures. We
further hold that Dhapubai had succeeded in proving that the
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. As a corollary, it is
held that the suit filed by Ghisalal for grant of a decree
that he is entitled to one half share in the properties of
28
Gopalji was not maintainable and the findings recorded by
the trial Court, the lower appellate Court and/or the High
Court on the validity of Gift Deeds dated 29.11.1944 and
22.10.1966, Will dated 27.10.1975 executed by Gopalji in
favour of Dhapubai and Sale Deed dated 19.1.1973 executed by
her in favour of Sunderbai are liable to be set aside.
5. Adoption to be regulated by this Chapter. –
(1) No adoption shall be made after the commencement of this Act
by or to a Hindu except in accordance with the provisions
contained in this Chapter, and any adoption made in contravention
of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in
the adoptive family in favour of any person which he or she could
not have acquired except by reason of the adoption, nor destroy
the rights of any person her birth.
——–
6. Requisites of a valid adoption.-
No adoption shall be valid unless-
29
(i) the person adopting has the capacity, and also the right, to
take in adoption;
(ii) the person giving in adoption has the capacity to do so
(iii) the person adopted is capable of being taken in adoption,
and
(iv) the adoption is made in compliance with the other conditions
mentioned in this Chapter.
COMMENTS
Requirements for a valid adoption
(i) Under section 6 the law does not recognise an adoption by a
Hindu of any person other than a Hindu; Kumar Sursen v. State of
Bihar3
(ii) To prove valid adoption, it would be necessary to bring on
records that there had been an actual giving and taking ceremony;
M. Gurudas v. Rasaranjan4
(iii) Law is well settled that adoption displaces the natural
line of succession and therefore, a person who seeks to displace
the natural succession to the property alleging an adoption must
prove the factum of adoption and its validity by placing
sufficient materials on record; Suma Bewa v. Kunja Bihari Nayak 5
3 AIR 2008 Pat 24.4 AIR 2006 SC 3275.5 AIR 1998 Ori 29.
30
(iv) Section 6 does not bar a lunatic person from being adopted;
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom
189.
7. Capacity of 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 in necessary
unless the consent of any one of them is unnecessary for any of
the reasons specified in the preceding priviso.
8. Capacity of a female Hindu to take in adoption.-
Any female Hindu-
(a) who is sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose marriage has been
dissolved or whose husband is dead or has completely and finally
renounced the world or has ceased to be a Hindu or has been
31
declared by a court of competent jurisdiction to be of unsound
mind.
Has the capacity to take a son or daughter in adoption.
COMMENTS
Capacity of female Hindu to adopt
There is conceptual and contextual difference between a divorce
woman and one who is leading life like a divorced woman. Both
cannot be equated. The appellant because of her physical
deformity lived separately from her husband and too for a very
long period right from the date of marriage. But in eye of law
they continued to be husband and wife, because there was no
dissolution of marriage or divorce in the eye of law. Son adopted
by appellant invalid; Brajendra Singh v. State of Madhya Pradesh6
Where there is no evidence to show that the female Hindu was
seriously ill — mentally or physically, it has been held that she
is in a position to adopt; Devgonda Raygonda Patil v. Shamgonda
Raygonda Patil, AIR 1992 Bom 189.
9. Persons capable of giving in adoption.-
(1) No person except the father or mother or the guardian of a
child shall have the capacity to give the child in adoption.
6 AIR 2008 SC 1056.
32
(2) Subject to the provisions of 7sub-section (3) and sub-section
(4), the father, if alive, shall alone have the right to give in
adoption, but such right shall not be exercised save with the
consent of the mother unless the mother 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.
(3) The mother may give the child in adoption if the father is
dead or 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.
8(4) Where both the father and mother are dead or have completely
and finally renounced the world or have abandoned the child or
have been declared by a court of competent jurisdiction to be of
unsound mind or where the parentage of the child is not known,
the guardian of the child may give the child in adoption with the
previous permission of the court to any person including the
guardian himself.
(5) Before granting permission t a guardian under sub-section
(4), the court shall be satisfied that the adoption will be for
the welfare of the child, due consideration being for this
purpose given to the wishes of the child having regard to the age
7 Subs. by Act 45 of 1962, sec. 3(a), for “sub-section (3)” (w.e.f. 29-11-1962).8 Subs. by Act 45 of 1962, sec. 3(b), for sub-section (4) (w.e.f.29-11-1962).
33
and understanding of the child and that the applicant for
permission has not received or agreed to receive and that no
person has made or given or agreed to make or give to the
applicant any payment or reward in consideration of the adoption
except such as the court may sanction.
Explanation.- For the purposes of this section –
(i) the expression “father” and “mother” do not include an
adoptive father and an adoptive mother.9
10(ia) “guardian” means a person having the care of the person or
a child or of both his person and property and includes –
(a) a guardian appointed by the will of the child’s father or
mother, and
(b) a guardian appointed or declared by a court, and
(ii) “court” means the city civil court or a district court
within the local limits of whose jurisdiction the child to be
adopted ordinarily resides.
10. Persons who may adopted.-
No person shall be capable of being taken in adoption unless the
following conditions are fulfilled, namely :-
9 The word “and” omitted by Act 45 of 1962, sec. 3(c)(i) (w.e.f. 29-11-1962).
10 Ins. by Act 45 of 1962, sec. 3(c)(ii) (w.e.f. 29-11-1962).
34
(i) he or she is Hindu,
(ii) he or she not already been adopted.
(iii) he or she has not been married, unless there is a custom or
usage applicable to the parties which permits persons who are
married being taken in adoption.
(iv) he or she has not completed the age of fifteen years, unless
there is a custom or usage applicable to the parties which
permits persons who have completed the age of fifteen years being
take in adoption.
COMMENTS
Capacity to adopt
(i) Adoption of boy more than 15 years of age and married is not
illegal on account of non-compliance of section 10(iii) and
10(iv) of the Act provided such custom or usages is prevalent in
a community; Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang
Narayan Kanse,11
(ii) The plaintiff being married and above 30 years of age could
not prove any custom or usage being observed openly, continuously
and uniformly thereby gaining the force of law in his Digamber
Jain community which could validate his adoption; Nemichand
Shantilal Patni v. Basantabai,12
11 AIR 2006 Bom 123.12 AIR 1994 Bom 235.
35
11. Other conditions for a valid adoption.-
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) tot he family of its adoption.
36
Provided that the performance of datta hormam shall not be
essential to the validity of adoption.
COMMENTS
Conditions for adoption
(i) Provision of section 11 requiring age difference between
adoptive mother and adoptive son to be at least 21 years is
mandatory in nature. Word ‘must’ cannot be read as ‘may’. This
breach is fatal to adoption; Hanmant Laxman Salunke (D) by L.Rs.
v. Shrirang Narayan Kanse,13
(ii) The defendant’s father only wanted that he should be reared
up by Sankar and Sasi after the mother’s death and there had been
no formal ceremony of adoption nor were Sankar and Sasi unfit to
have children of their own, thereby negativing the adoption;
Urmila Devi v. Hemanta Kumar Mohanta,14
(iii) The age of the plaintiff was 30 years and that of the
adoptive mother 48 years six months, thereby contravening the
provisions of section 11(iv) as the difference between the
plaintiff and mother was only 19 years and not 21 years;
Nemichand Shantilal Patni v. Basantabai,15
(iv) There was no evidence in hand that the plaintiff was
actually given and taken in adoption by the parents or guardians
of the plaintiff as required under section 1113 (supra) 14 AIR 1993 Ori 213.15 (supra)
37
(vi). Adoption was held not to have taken place; Nemichand
Shantilal Patni v. Basantabai, AIR 1994 Bom 235.
Deed of adoption
Neither any deed of gift and acceptance executed and registered
nor deed of acknowledgment acknowledging adoption is sufficient
by itself to constitute legal adoption in the absence of actual
giving or taking. It is not a substitute for actual giving or
taking. Omission of day or date of adoption in a deed of
acknowlegement is very vital, Such a deed loses all its
significance; Raghunath Behera v. Balaram Behera,16
Subsequent events
Subsequent marriage of the adoptive mother cannot invalidate the
adoption; Narinderjit Kaur v. Union of India,17
12. Effects of adoption.-
An adopted child shall be deemed to tbe the child of has or her
adoptive father or mother for all purposes with effect from the
date of the adoption and from such date all the ties of the child
in the family of his or her birth shall be deemed to be served
replaced by those created by the adoption in the adoptive family:
Provided that-
16 AIR 1996 Ori 38.17 AIR 1997 P&H 280.
38
(a) the child cannot marry any person whom he or she could not
have married if he or she had continued in the family of his or
her birth.
(b) any property which vested in the adopted child be before the
adoption shall continue to vest in such person subject to the
obligations, if any, attaching to the ownership of such property,
including the obligation to maintain relatives in the family of
his or her birth.
(c) the adopted child shall not divest any person of any estate
which vested in him or her before the adoption.
COMMENTS
Effect of adoption
On adoption, adoptee gets transplanted in adopting family with
the same rights as that of natural-born son. Adopted child
becomes coparcener in Joint Hindu Family property after severing
all his ties with natural family; Basavarajappa v. Gurubasamma 18
Right in property after adoption
An adoptee can take only that property to his adoptive family
from his birth family which is already vested in the adoptee
prior to adoption by inheritance or by partition in the natural 18 (2005) 12 SCC 290.
39
family or as sole surviving coparcener as he becomes its absolute
owner. Clause (b) of the proviso to section 12 cannot be
attracted when the property has not been vested in him and is
still a fluctuating coparcener property; Devgonda Raygonda Patil
v. Shamgonda Raygonda Patil,19
Vested property
“Vested property” in the context of clause (b) of the proviso to
section 12 means property in which indefeasible right is created,
i.e., on no contingency it can be defeated in respect of
particular property; Devgonda Raygonda Patil v. Shamgonda
Raygonda Patil20
13. Right of adoptive parents to dispose of their properties.-
Subject to any agreement to the contrary an adoption does not
deprive the adoptive father or mother of the power to dispose of
his or her property by transfer inter vivos or by will.
14. Determination of adoptive mother in certain cases.-
(1) Where Hindu who has a wife living adopts a child, she shall
be deemed to be the adoptive mother.
(2) Where an adoption has been made with the consent of more than
one wife, the senior most in marriage among them shall be deemed
to be the adoptive mother and the others to be step-mothers.19 AIR 1992 Bom 189.
20 (supra)
40
(3) Where a widower or a bachelor adopts a child, any wife whom
he subsequently marries shall be deemed to be the step-mother of
the adopted child.
(4) Where a widow or an unmarried woman adopts a child, any
husband whom she marries subsequently shall be deemed to be the
step-father of the adopted child.
15. Valid adoption not to be cancelled. –
No adoption which has been validly made can be cancelled by the
adoptive father or mother or any other person, nor can be adopted
child renounce his or her status as such and return to the family
of his or her birth.
16. Presumption as to registered documents relating to adoption.-
Whenever any document registered under any law for the time being
in force is produced before any court purporting to record an
adoption made and is signed by the person giving and the person
taking the child in adoption, the court shall presume that the
adoption has been made in compliance with the provisions of this
Act unless and until it is disproved.
State Amendment
Uttar Pradesh
Section 16 renumbered as sub-section (1) thereof and after sub-
section (1) as so renumbered, the following sub-section (2) shall
be inserted, namely:—
41
“(2) In case of an adoption made on or after the 1st day of
January, 1977 no court in Uttar Pradesh shall accept any evidence
in proof of the giving and taking of the child in adoption,
except a document recording an adoption, made and signed by the
person giving and the person taking the child in adoption, and
registered under any law for the time being in force:
Provided that secondary evidence of such document shall be
admissible in the circumstances and the manner laid down in the
Indian Evidence Act, 1872.”21
COMMENTS
Burden of proof
(i) Whenever any document registered under any law for the time
being in force is produced before any court purporting to record
an adoption made and is signed by the person giving and the
person taking the child in adoption, the court shall presume that
the adoption has been made in compliance with the provisions of
this Act. The proof of giving and taking of child is not
necessary; Pathivada Rama Swami v. Karoda Surya Prakasa Rao,22
21 [Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976
(U.P. Act 57 of 1976), sec. 35 (w.e.f. 1-1-1977).]
22 AIR 1993 AP 336.42
(ii) If the adoption is disputed, it is for the plaintiff to
prove that ceremony of giving and taking has not taken place;
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil23
Registered Documents
The petitioner is lawfully adopted by a Hindu lady and the Deed
of adoption is registered and therefore the presumption as per
the provisions of section 16 of the Act, can be drawn in favour
of the petitioner. The said presumption would operate so long as
there is not rebuttal by the procedure known to law; N.R. Trivedi
v. District Education Officer, Anand24
17. Prohibition of certain payments.-
(1) No person shall receive or agree to receive any payment or
other reward in consideration of the adoption of any person, and
no person shall make or give or agree to make or give to any
other person any payment or reward of which is prohibited by this
section.
(2) If any person contravenes the provisions of sub-section (1),
he shall be punishable with imprisonment which may extend to six
months, or with fine, or with both.
23 (supra)24 AIR 2004 Guj 53.
43
(3) No prosecution under this section shall be instituted without
the previous sanction of the State Government or an officer
authrorised by the State Government in this behalf.
COMMENTS
Prohibition of payment or reward in consideration of adoption
Section 17 of the Act has been enacted by the legislature with a
view to prevent trafficking of children. Where a major had
agreed, after receiving considerable properties from the family
into which he was to be taken in adoption, not to set up any
claims with regard to certain items of the property belonging to
the adopting family, the defendant could not be said to be a
recipient of any payment or reward in consideration of adoption,
of the plaintiff thereby not attracting section 17 of the Act;
Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao,25
18. Are there restrictions about the number of children who can
be sent into inter-country adoption?
Yes; A RIPA is required to follow a 80:20 ratio in the case of
in-country vs inter-country adoptions. Special needs children do
no form a part of the 20% limitation.
19. Can a single Foreigner adopt from India?
The CARA Guidelines do not impose restrictions about single
25 AIR 1994 AP 134.44
parents adopting from India. However, a single male cannot adopt
a child of the opposite sex.
20. Is a Foreigner resident in India allowed to adopt in India?
If the foreign national is a citizen of a country that has
ratified the Hague Convention and, has been living in India for
one year or more, the PAP(s) may approach CARA along with a
certificate of ‘No-objection to the proposed adoption’ from the
Embassy/Mission of the country of their nationality. The
Embassy/Mission shall in addition, give an undertaking for post-
adoption follow-up (as stipulated in Chapter IV of the CARA
Guidelines).
CARA in turn, shall refer the case to a RIPA for carrying out
the Home Study and preparation of PAP(s)’ dossier.
The procedures stipulated under these Guidelines for inter-
country adoption shall be followed by the RIPA.
In case, the PAPs continue to reside in India during the
stipulated post-adoption follow-up period, the concerned RIPA
would undertake to ensure post-adoption follow-up.
The concerned embassy or mission shall also ensure that the
adopted child acquires citizenship of the country of his or her
parents immediately after adoption decree and a copy of the
45
citizenship order shall be forwarded to CARA and the concerned
RIPA.
21. If there is no listed agency in the country of residence, how
can one adopt?
In the case of Indian nationals residing in a country where there
is no AFAA or CA to sponsor applications, CARA may allow an
organisation or individual recommended by the concerned Indian
Mission to do the Home Study Report (HSR) and prepare adoption
dossier which would then be forwarded to CARA through the Indian
Embassy or High Commission.
An official of the concerned Indian Mission may also prepare the
HSR and the adoption dossier.
The organisation or individual recommended by the concerned
Indian Mission shall also be required to give an undertaking to
CARA to send progress reports for a period of two years following
legal adoption and also take action, as stipulated in these
Guidelines, in case of disruption of adoption or repatriation of
adopted child.
22. Can a repatriated Indian holding an Indian passport, adopt
in India?
46
Adoptions by repatriated Indian nationals holding Indian passport
who have returned to India and have been residing in India for
more than one year, will be processed as an in-country adoption.
Summary of Adoption Procedure
The formal steps in adoption of a child are generally uniform in
all states.
Notice Notice of adoption proceedings is given to all parties who
have a legal interest in the case except the child. In the case
of Illegitimacy, both natural parents should be given notice if
they can be located.
Some statutes provide that a parent who has failed to support a
child is not entitled to notice. Ordinarily, a parent who has
lost custody of a child in a Divorce or separation case is,
however, entitled to notice. Similarly, an adoption agency that
has custody of the child is entitled to notice.
Petition The parents seeking to adopt must file a petition in
court that supplies information about their situation as well as
the situation of the child. The filing of a proper petition is
ordinarily a prerequisite to the court's jurisdiction.
The petition indicates the names of the adoptive parents, the
child, and the natural parents, if known. In addition, the
child's gender and age are stated, and some states mandate that a
47
medical report on the child must also accompany the petition. An
example of such a petition is found on page 98.
Consent Written consent of the adoption agency or the child's
natural parents accompanies the petition for adoption. Consent of
the natural parents is not required if their parental rights have
been involuntarily terminated as a result, for example, of
abandonment or abuse of the child.Hearing A hearing is held so
that the court may examine the qualifications of the prospective
parents and either grant or deny the petition. There must be an
opportunity for the parties to present testimony and to examine
witnesses at such a hearing.
Adoption proceedings are confidential, so the hearing is
conducted in a closed courtroom.
Ordinarily, the records of an adoption hearing are available for
inspection only by court order. Confidentiality is thought to
promote a sense of security for the child with his or her new
family.
Probation Most states require a period of Probation in adoption
proceedings. During this period, the child lives with the
adoptive parents, and the appropriate state agency monitors the
development of the relationship. The agency's prime concern is
the ability of the adoptive parents to properly care for the
child. If the relationship is working well for all concerned
48
parties, the state agency will request that the court issue a
permanent decree of adoption.
If the relationship is unsatisfactory, the child is either
returned to his or her previous home or is taken care of by the
state.
Decree An adoption decree is a judgment of the court and is given
the same force and effect as any other judgment.Birth
CertificateFollowing the adoption proceedings, a certificate of
adoption is issued for the adopted child, to replace the birth
certificate. It lists the new family name, the date and place of
the child's birth, and the ages of the adoptive parents at the
time the child was born.
Generally, the certificate of adoption does not indicate the
names of the child's natural parents or the date and place of
adoption. A child may never know that he or she was adopted
unless the adoptive parents reveal the information, since the old
birth certificate is sealed away and may be opened only by court
order.
49
Conclusion
adoption n. the taking of a child into one's family, creating a
parent to child relationship, and giving him or her all the
rights and privileges of one's own child, including the right to
inherit as if the child were the adopter's natural child. The
adoption procedure varies depending on whether the child comes
through an agency which handles adoptions or comes from a
stranger or a relative, and on the age of the child and the
adoptive parent or parents. The hopeful adoptive parent must file
a petition, which may be handled by the adoption agency. Natural
parents must either give binding written permission for the
adoption or have abandoned the child for a lengthy period of
time. An investigation will be made by a county office (probation
or family services) as to the future parents' suitability to
adoption, their relationship status, their home situation, and
their health, as well as the best interests of the child. If the
child is old enough to understand the procedure he or she may
have a say in the adoption. Finally there is a hearing before a
local court judge (called "surrogate" in some states) and an
adoption order made. In many states a new birth certificate can
be issued, with the adoptive parents listed as the parents. If
there is an adoption of an adult, the adopting adult usually must
be several years older, based on the state law. In recent years,
there has been much controversy over adoption by single parents,
50
including gays and lesbians, with the tendency toward allowing
such adoptions, provided all other criteria beneficial to the
child met.
BibliogrphyBare Acts:
1. Hindu Succession Act, 1956
2. Hindu Minority and Guardianship Act, 1956
3. Hindu Adoption and Maintenance Act, 1956
Books:
1. DuPrau, Jeanne. 1990. Adoption. Englewood Cliffs, N.J.: Messner.
2. Mogha P.C. The Law of Pleadings in India with Precedent, 16th Ed.by K.N. Goyal and G.C. Mogha, Calcutta Eastern Law House, 20021091
3. Srivastava R.D. : The Law of Pleading Drafting and Conveyancing / R.D. , Srivastava 8th Ed. Allahbad: Central Law Agency , 1991
51