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.

11

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.  

12

(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.

13

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

16

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. __________________ 

20

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