• Adoption of child of wife's first marriage

Dear Sirs,

My wife has a daughter from her first marriage which was divorced in 2010. The decree had clearly stated that the biological father has given full custody to the mother and can visit the daughter once a month and that the mother will solely maintain the daughter. The maiden name of my wife is Sanyukta Datta and after first marriage, she was Sanyukta Ghosh. Her daughter's birth certificate is named as Aicha Ghosh with father name as Sujoy Ghosh. However, the school has accepted her name as Aicha Bardahan which is after me, and have also mentioned my name Saikat Bardhan as her father and Sanyukta Bardhan as mother.


I now want to issue a passport for my daughter, wherein I have the following queries:

1. If I want my name to be included in the passport as legal guardian, I think I will need a registered Deed of Adoption. After 2010 amendment, can my wife give her daughter for adoption to me? Or we still need the biological fathers NOC?

2. If we need his NOC, then instead of above, can I apply for legal guardianship, since he has given full custody to my wife? Do I need his NOC again for this process/

3. Recently, Kolkata High Court and Mumbai High Court has allowed petitions for exclusion of biological fathers name in passport in similar cases, where there is a custody order in the decree and a valid deed of adoption. Is it possible in my case?

Views are solicited. thanks,
Asked 2 years ago in Family Law from Kolkata, West Bengal
Religion: Hindu
1) you would need biological father NOC  to change name of child in passport 

2) biological father is natural guardian of child . you would need his consent . 

3) As per rules of Ministry of External Affairs Circular No.VI/401/01/05/2008 dated 05.10.2009 serial No.4(2) "In the event of remarriage after divorce, the name of step- father/step mother cannot be written in the passport of children from the previous marriage. The relationship of the child to his biological parents subsists, even after divorce by parents. It is also not possible to leave the column of father or mother blank in the passport in such cases. Therefore, such applicants must write the names of their biological parents in the application form. However, if the stepfather or stepmother is appointed by a Court as legal guardian, the name of such step-parent can be written as legal guardian".

4) it wont be possible to exclude biological father name in passport . delhi High court has held that for valid degree of adoption father consent is necessary . even if he has given custody to mother he continues to be biological father
Ajay Sethi
Advocate, Mumbai
23177 Answers
1217 Consultations
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Delhi High Court
Teesta Chattoraj vs Union Of India on 30 March, 2012
Author: Vipin Sanghi
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                  Judgment reserved on: 22.03.2012

%                 Judgment delivered on: 30.03.2012

+                          W.P.(C) 2888/2011

       TEESTA CHATTORAJ                                 ..... Petitioner
                     Through:         Mr. M. Dutta, Advocate
                     versus

       UNION OF INDIA                                   ..... Respondent
                          Through:    Mr. Ruchir Mishra, Advocate


       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI


                             JUDGMENT


It is not even the petitioner's case that Shri Abhijit Ghosh has, in that wider and natural sense, renounced the world. All that the petitioner contends is that Shri Abhijit Ghosh, her natural father, has not no concern with the petitioner any longer. Had the intention of the legislature been to exclude the consent of that parent, who may have cut off all his relationship with the minor child, on account of the divorce obtained by the parents, the legislature would not have used the expression "renounce the world" but would have used the words like "severed his or her relationship with the minor child" instead. It is not for this Court to read into the plain language used by the legislature, words which are not there.

the petitioner's mother could not have secured the right, at the time of her obtaining divorce from Shri Abhijit Ghosh, to claim that the petitioner was not the naturally born child of her natural father, Shri Abhijit Ghosh. The petitioner's mother also could not have taken away the petitioner's right to claim that Shri Abhijit Ghosh is her natural father. The petitioner's right to claim her status as the daughter and an heir of Shri Abhijit Ghosh also could not have been taken away by her mother by entering into a compromise with her natural father. The rights which inhere in the petitioner on account of her being a natural heir of her natural father continue to survive. The identity of the petitioner is derived by the fact that the petitioner is the naturally born child of her parents i.e. Shri Abhijit Ghosh and Smt. Rajeshwari Ghosh, now known as Smt. Rajeshwari Chattoraj. The settlement arrived at between the petitioner's parents at the time when they obtained the divorce cannot be said to include an implied consent by the petitioner's father to the giving in adoption of the petitioner to any other person.


Sections 5 and 6 of the HAMA. These provisions read as follows:-

"5. Adoptions 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 in the family of his or her birth.
6. Requisites of a valid adoption.- No adoption shall be valid unless-
(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."
37. It is pertinent to note that both Sections 5 and 6 of the HAMA begin with the words "no adoption shall be made........" and "no adoption shall be valid unless........." It is, therefore, clear that both these provisions are mandatory. From a reading of Section 5, it is clear that an adoption not made in accordance with the provisions of Chapter II of the HAMA is void. The adoption is not valid unless the person giving in adoption has the capacity to do so and the adoption is made in compliance with the conditions mentioned in Chapter II of the HAMA, which would include the condition mentioned in the proviso to Section 9(2) of the said Act.

38. For all the aforesaid reasons, I dismiss this petition leaving it open to the petitioner to comply with the objections raised by the RPO and to resubmit her application with the correct details, inter alia, with regard to her parentage. The parties are left to bear their respective costs.

(VIPIN SANGHI) JUDGE MARCH 30, 2012 sr/as
Ajay Sethi
Advocate, Mumbai
23177 Answers
1217 Consultations
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once deed of adoption has been executed by biological parents in your favour birth certificate  will  reflect your name as that of father .

he provisions contained under Chapter-10 of Passport Manual 2010 prescribe the procedure to be followed for issuing passport to adopt children. The said provision read thus:-

"3.

PASSPORTS TO ADOPTED CHILD I.

General 3.1 Passport Officers are mainly concerned with Inter-country adoption with reference to issue of passports to the adopted children, though in-country adoption cases, sometimes complicated cases for issue of passport also need to be dealt with.

3.2 When application for issue of passport to adopted child is submitted, the PIA has to ensure that the adoption process is complete and the adoption is legally valid before the child is granted a passport.

 the following clarifications issued 


CLARIFICATIONS 4.1 Q. Should the adjective "adoptive" be used in the passport?

A.

A question has been raised whether the adjective "adoptive" must be prefixed to the name of father / mother in the passport of a legally adopted child. It has been decided in consultation with the Legal and Treaties Division of the Ministry of External Affairs that the adjective "adoptive" need not be prefixed to the name of the father / mother of a legally adopted child.

4.2 Q. Can the name of the adopted child be amended to remove his/ her name prior to adoption?

A.

Yes, the erstwhile name before adoption can be amended. If the new name is already in the Court order granting adoption, the child does not have to follow name change procedure again. Otherwise the name change procedure laid down in Chapter-8 needs to be followed. The affidavit for the change of name in this case can be signed by the foster parent or the guardian
Ajay Sethi
Advocate, Mumbai
23177 Answers
1217 Consultations
5.0 on 5.0
1. The name of the child should bear his biological father's surname,

2. To replace your surname with that of his biological father, you need to adopt the child through a registered adoption deed for which you need to have NOC from both of his biological parents,

3. As of now the passport office will not issue him passport with your surname.
Krishna Kishore Ganguly
Advocate, Kolkata
12088 Answers
229 Consultations
5.0 on 5.0
1. Post adoption, his birth certificate can be applied to be reissued with your surname mentioning you as his father,

2. His passport also will have your surname after his name showing your name as his father.
Krishna Kishore Ganguly
Advocate, Kolkata
12088 Answers
229 Consultations
5.0 on 5.0
No matter whether the mother gets divorced or not, whoever is child's father remains child's father. The settlement arrived at between the wife and biological father at the time when they obtained the divorce cannot be said to include an implied consent by the Adoptive child’s father to the giving in adoption of the child to any other person. In cases where there is a valid adoption, the passport authority cannot insist that the applicant furnish the name of biological parents. Such insistence obliterates the status of a person as created by a valid adoption and nullifies the deed of adoption, which has all the sanctity and validity in view of the said provisions of Hindu Adoptions and Maintenance Act

Solution in your case 

1.	Make adoption deed is accordance with the Hindu Adoption and Maintenance Act, 1956
2.	To get NOC from both of adoptive child’s biological parents.
3.	After the adoption, the child’s name was changed to insert the name of the adoptive father.
4.	 

An adoption not made in accordance with the provisions of Chapter II of the HAMA is void. The adoption is not valid unless the person giving in adoption has the capacity to do so and the adoption is made in compliance with the conditions mentioned in Chapter II of the HAMA, which would include the condition mentioned in the proviso to Section 9(2) of the said Act.

Requisites of a valid adoption.- No adoption shall be valid unless-
(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

Once deed of adoption has been executed by biological parents in your favour birth certificate will reflect your name as that of father.
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
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