• Adoption

Sir, I married a divorced lady and she had one child at the age of 4 now. I married to her last year as after her divorce. Sir I want to adopt the child who was born to her ex husband. I am working in army.
Asked 2 years ago in Family Law from Bangalore, Karnataka
Religion: Hindu
1) you would need consent of biological father to adopt the child . 

2) in case the biological father consents deed of adoption should be executed wherein the father with consent of biological mother gives child in adoption to you , 

3) the adoption deed should be duly registered .
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
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The Adoption procedure is quite simple. Hire a good advocate and get an adoption deed drafted. in presence of two witnesses, get the adoption deed registered in the Registrar's office and an certificate will be issued to that effect. The consent of the biological father since the age of the child is only 4 years would need to be sought. An affidavit to that effect may be submitted along with the adoption deed.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
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Hi, witout consent of the biological father you could not adopt chaild.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
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Hi,
 you should register an adoption deed in the presence of two witnesses , by getting it prepared by an advocate or someone who is an expert.. 
the consent of biological father if he is alive or else if he is dead grand parents is necessary to register the deed.
The NOC in affidavit has to be filed along with the adoption deed before the registrar.
Your wife  should convince the biological  father . This is something best for the welfare of the child as you have married her. 
In this situation if he is not willing you have no legal option while he is alive. a court decree is also not possible as the biological father can defend it by not agreeing to give his child in adoption.
Thresiamma G. Mathew
Advocate, Mumbai
1315 Answers
85 Consultations
5.0 on 5.0
1. To adopt the child begotten by your wife from her first marriage, you require the consent of the biological father of the child.

2. If the biological father of your wife's child agree to give the child in adoption to you then a deed of adoption can be executed between you and him. The said deed would have to be signed by him and thereafter registered. 

3. Without the consent of the biological father of the child you cannot adopt the child.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
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1. You can not adopt the said child unless his/her biological father also gives consent for it,

2. If he agrees, the execute and register a deed of adoption with the consent of the biological parent of the child.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
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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.

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 Bihar , AIR 2008 Pat 24.

(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. Rasaranjan , AIR 2006 SC 3275.

(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 , AIR 1998 Ori 29.

(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 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 Pradesh , AIR 2008 SC 1056.

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.

(2) Subject to the provisions of 1sub-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.

2(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 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.3

4(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.

——–

1. Subs. by Act 45 of 1962, sec. 3(a), for “sub-section (3)” (w.e.f. 29-11-1962).

2. Subs. by Act 45 of 1962, sec. 3(b), for sub-section (4) (w.e.f. 29-11-1962).

3. The word “and” omitted by Act 45 of 1962, sec. 3(c)(i) (w.e.f. 29-11-1962).

4. Ins. by Act 45 of 1962, sec. 3(c)(ii) (w.e.f. 29-11-1962).

10. Persons who may adopted.-

No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely :-

(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, AIR 2006 Bom 123.

(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, AIR 1994 Bom 235.

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.

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, AIR 2006 Bom 123.

(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, AIR 1993 Ori 213.

(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, AIR 1994 Bom 235.

(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 11(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, AIR 1996 Ori 38.

Subsequent events

Subsequent marriage of the adoptive mother cannot invalidate the adoption; Narinderjit Kaur v. Union of India, AIR 1997 P&H 280.
Nadeem Qureshi
Advocate, New Delhi
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129 Consultations
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