• Court order in case of adoption

Dear Sirs/Madam

My husband, who is now of the age 29, got adopted by his step father in 2002 when he was of the age 14. The adoption was done on account of re-marriage of her mother after divorce (and subsequent death) of his biological father. The adoption was done by doing a "Give and take" ceremony under the HAMA and then followed by execution of Adoption deed. To the best of my knowledge the adoption deed has not been registered till date. The issue is that Ministry of external affairs is asking for a Court order to do Apostille of his Adoption deed. 1) We don't know how can we get this court order now 2) Is it possible to register the adoption deed now 3) Even if its possible to get the court order now, we are not having any proof i.e death certificate of the biological father 4) My husband is using name and surname of his step father every where (in PAN, Passport, LC ) except birth certificate. He is living outside India since year almost 10 years and We have never faced any issue before. Was it legal to use name of his stepfather without registration of the adoption deed or a court order.
Asked 7 years ago in Family Law
Religion: Hindu

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8 Answers

1) registration of adoption deed is optional

2) it is not required to be mandatorily regsitered

3) registration has to be done withion maximum period of 8 months

4)it cannot be done now after 15 years

5) since Minstry of external affairs is insisting on court order contact a local lawyer and file suit for declaration that husband has been adopted by the step father by deed of adoption

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

1) you need death certifcate of biological father

2) if biological father was alive without his consent deed of adoption copuld not have been executed by the biological mother in favoour of the step father

3) court would not pass any order without death ceritfcate of biologial father being on record

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

1. He is the son of his biological father and for changing the name of his father, he should have been adopted by his adoptive father with the written consent of his biological father and an adoption deed should have been executed and registered. There has already been an adoption deed executed which has not been registered. His adoptive father shall have to get one affidavit affirmed before the 1st Class Judicial Magistrate stating that he had already adopted your husband after the demise of his father which was executed after conducting a religious ceremony which is required to be registered now and all concerned are required to accept your husband as his legally adopted son.

2. Yes, as detailed above.

3. The aforesaid Affidavit before the 1st Class Judicial Magistrate will suffice.

4. One shall have to write his father's name and biological father is the father whose name should be written unless he has been legally adopted by some other person with the consent of both his biological father and mother.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. The suit for declaration can be avoided by making the above affidavit in opposition.

2. In the said proposed suit for declaration, whom will you make the opposite parties?

3. you shall have to collect the death certificate of his biological father which is not impossible to collect.

4. Without submitting the death certificate and/or the N.O.C. it is difficult to get the adoption deed registered legally.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. An adoption deed does not require mandatory registration. Section 16 of Hindu Adoptions and Maintenance Act envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law.

2. If your husband can prove that giving and taking is done, and he i.e adopted child lived with his adoptive parents as their child, he shall have no problem. The child would have the status of natural son and acquires all the rights & liabilities of a natural son. Ex. Educational certificates etc, should be relied upon for this purpose.

3. In these circumstances your husband is required to file a suit in the competent civil court for declaration of adoption deed being valid. Unless he obtains a decree in his favour the MEA will not process the application.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. Death certificate of biological father is not required. What is required to be proved, and beyond a shade of reasonable doubt, is that there was give and take i.e your husband was given in adoption by his biological parents to the adoptive parents.

2. Consult a lawyer personally with all the documents you may have.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1) We don't know how can we get this court order now

A suit for declaring the adoption is to be filed before the concerned court. Take the help of a lawyer who guide you to file a suit for this purpose.

2) Is it possible to register the adoption deed now

Instead of registering the adoption deed at this stage (this may be barred by limitation),

better file a declaration suit to declare the adoption as legally valid owing to the present circumstance and describe the circumstance under which you approached the court with this suit.

3) Even if its possible to get the court order now, we are not having any proof i.e death certificate of the biological father

You have to somehow get the proof or else an affidavit by the spouse of the deceased duly authenticated by the revenue officials within the territory shall be a supporting document for this purpose.

4) My husband is using name and surname of his step father every where (in PAN, Passport, LC ) except birth certificate. He is living outside India since year almost 10 years and We have never faced any issue before. Was it legal to use name of his stepfather without registration of the adoption deed or a court order.

It cannot be said to be illegal to use the name of his stepfather, but it may not tally while compared with other documents and may lose its authenticity especially in the absence of a valid adoption deed.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

As mentioned above, we don't have the NOC or death certificate of the biological father. I am not so sure about the how the adoption deed was executed when it was made but as of now we don't have any documents relating to the biological father and it was based on information from acquaintances only that we knew that biological father was dead. Do you think we would need any information/NOC/Death certificate of the biological father when we file the suit of declaration as mentioned above.

In the suit for declaration the alternate steps may be adopted as suggested earlier but the steps taken should be convincing and acceptable to court.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

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