• Adopt a child without consent of father / mother in India

My sister-in-law is a Canadian citizen. She left her 10 month baby with us in April 2011. She got divorced from husband in Feb 2012. We had an implicit understanding of adoption in 2012.

However, in March 2016, she wanted to take the child back to Canada. The child is still in our custody. But she wants it back again.

Is there any possibility that we can adopt the child without the consent of the father / mother?

1) Biological father / mother are Canadian citizens.
2) Both of them are negligent. They never cared for the child so far.
3) The child is a Canadian citizen.
Asked 4 years ago in Family Law
Religion: Hindu

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17 Answers

1) no for adoption consent is required.

2)For that a complaint under juvenile.act can be filed if they treat kid with cruelty or abondne the kid.

Though if there is grave failure on there part you can move.to State women and child commission Along with that file a petition in high court for welfare of child.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Firstly, a big no to your question meaning here by is that you can’t adopt without their consent, and if only one parent is there then also not possible without her consent.

Secondly, but yes if you move before the court and happen to prove that you are thinking for the welfare of the child as they are negligent then you can pray for child to be sent to some other relative.

Lastly, you can very well put yourself at first priority as you have been taking care of the child, and can become legal guardian of the child.

Good Luck...!

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

If the biological parents are alive they adoption can be possible only after their acceptance for adoption as in your case your sister in law left child with you and now she is claiming the child you cannot adopt him without her permission as she is a divorcee the father is the natural Guardian of the child in case you're adopted child you need to follow the procedures set in this regard and approach Cara which is the nodal agency for adoption will advise you not to go for this adoption

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Without consent of father and mother you cannot adopt the child.

However you can fight for child, due to careless parents the child's care you're taking from 2011 to till date. Means approax 7 years you're taking care.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Their consent is needed if they don't give you need to prove before adoption committee and court that they are negligent and careless.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

1) you cannot adopt the child without consent of his biological parents

2) for valid adoption it is necessary that there should be giving and taking ceremony

3) deed of adoption should be executed duly stamped and registered

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

1. You have been given the permissive custody of your child, which cannot translate into a legal right to retain the custody of the child, much less the right to adopt the child without the consent of the biological parents.

2. Under no circumstances the child can be adopted without the consent of the mother.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

An adoption without valid paper work i.e an adoption which is not admissible under the Hindu Adoptions and Maintenance Act, 1956. But in the absence of any documentary evidence to prove that child have been adopted by your the burden of proof lies on you and through oral and other circumstantial evidences you can prove your case.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You cannot adopt the child without biological parents consent

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

You can file suit first, before biological parents file suit against you. In India oral adoption is accepted, you can fight on below Act based and biological parents had surrendered child to you in the year 2012 onwards till day the child is with you and for witnesses you can produce child in the court.

According to section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, “adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility that are attached to the relationship”.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

As the adoption has not been registered either online or through registered instrument, file a guardian and wards petition before the district court, implead the parents as respondent and if the child is averse towards the parents, then you may get the custody.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

When you will go for completion of adoption formalities the deed of adoption will be needed by you. In that circumstances it will be difficult for you to proceed further

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

Dear Sir,

It is a special case as such you have to approach Hon’ble High Court and as per its directions you may get adoption deed from the Concerned Court since welfare of the child is primary concern. The relevant provisions of CARA are reproduced below:

Adoption – Procedure

Juvenile Justice (Care and Protection of Children) Act, 2015

Central Adoption Resource AuthorityMinistry of Women & Child DevelopmentGovernment of India

Frequently Asked Questions (FAQ’s)

http://www.cara.nic.in/PDF/faqs.pdf

Child Adoption Procedure In India

Can I adopt if I already have a child?

Yes. The gender of the child becomes a factor here. The Hindu Adoption and Maintenance Act, 1956 (HAMA, under which Hindus, Jains, Sikhs, Buddhists and Arya Samaj adopt) allows you to only adopt a child of the opposite gender to the one you already have. There are no such diktats under the other 2 adoption laws, namely the Guardians and Wards Act, 1890 (GAWA) and the Juvenile Justice Act (JJA 2000, amended in 2006), which has enabled many Indians to adopt a child of the same gender. Your child, if old enough, will be asked to express her views on the adoption, in writing.

http://www.womensweb.in/articles/adoption-your-questions-answered/

Parents adopting a child under the Hindu Adoption and Maintenance Act (HAMA) could soon be required to mandatorily register the adoption with country’s apex adoption body as part of efforts to check trafficking, a senior government official said.

Prospective parents can adopt a child under the stringent Juvenile Justice (JJ) Act, 2015. Additionally, Hindus, Buddhists, Jains and Sikhs have the option of formalising an adoption through the 60 year-old HAMA.

Officials say that while the JJ Act has provisions for verifying the source of the child as well as a thorough background check of the prospective parents, these pre-requisites are missing from HAMA, thereby, allowing many to take advantage of its loopholes.

Draft Cabinet note

“The Ministry of Women and Child development has prepared a draft Cabinet note proposing an amendment to HAMA in order to make it compulsory for parents to register with the apex adoption body, Child Adoption Resource Authority (CARA),” a ministry spokesperson said.

The note is being circulated among the ministries of finance, home affairs and law and the Prime Minister’s Office, before it is taken up by the Union Cabinet, the official said.

“Adoption under HAMA is very simple and two Hindus can exchange a child after filing a deed. We did a sample check and discovered that the number of adoptions under HAMA is too high and we suspect that a lot of these involve trafficked children,” the spokesperson said.

The ministry has proposed changes to HAMA so that parents who adopt a child mandatorily register their deed of adoption on CARA’s web portal, following which they will be issued a certificate of adoption.

Need for a registery

CARA CEO Lt. Col. Deepak Kumar said that the move will allow it to maintain a ‘national adoption register’ which will compile data on adoptions under HAMA, in addition to those that take place through its web portal.

“HAMA is a big hole in our net. We need to widen our net so that we can monitor all adoptions. But first we need to record these by having a national adoption register,” Kumar told PTI.

The official explained that the adoption agency carried out a study where data from one of the total 22 sub-registrars in Delhi was collected, which showed that 145 adoption deeds were registered in the past three years.

He added that if this data is extrapolated, it can be assumed that over 3,000 children were adopted under HAMA in the past three years in Delhi alone.

“But these are only those adoptions that are actually legally formalised. We found out from the Collector of Stamps in Delhi that in 14 months there were 3,200 stamps sold for the purpose of adoption. If all these stamps are being used lawfully, we should have seen nearly 9,000 adoptions during these three years,” Kumar explained.

Changes and reforms

In a bid to reform the adoption procedure in the country and bring more transparency, the Union Ministry of Women and Child Development brought a new set of guidelines in August, 2015.

For the first time, the entire adoption procedure was transferred online, to be monitored by the Central Adoption Resource Authority, the nodal body regulating adoptions in India.

However, despite the new mechanism, CARA hasn’t seen an increase in adoption and recorded a mere 3,788 adoptions across the country in 2016, while there were four to five times the number of parents waiting to bring home a child.

Officials hope that once they have data on adoptions under HAMA, they will have a more realistic picture.

The Hindu Adoption and Maintenance Act, 1956, is applicable to Hindus, Jains, Buddhists, Sikhs and gives an adopted child all the rights enjoyed by a biological child.

Until the universal JJ Law came into existence, Muslims, Parsis, Christians and Jews had no adoption law and would have to approach the court under the Guardians and Wards Act, 1890, and get the guardianship of a child until he or she turned 18.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. no the child can not be adopted without the consent of the biological mother

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

As per the Hindu Adoptions and Maintenance Act, 1956 the valid consent of the biological mother is mandatory.

if she wants to claim the custody then she will have to file a suit for custody under the provisions of the Guardianship and Wards Act

regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

For adopting the child the law says that the child is to be given in adoption by the biological parents to the adoptive parents by executing a registered adoption deed and if need be to declare the adoption as valid by a decree of a court of law.

The child may be under your care and custody but you cannot claim adoption of the child by any means and it is illegal to have the child under your custody even after the biological parent is demanding the child back.

If you apprehend any danger for the child's future then you may approach the State child welfare commission for relief and remedy.

The child being a foreign citizen, you may be questioned about keeping the child with you and the authority vested in you, if you dont have any proper answer for this you may be in trouble for this especially if the biological mother lodges a complaint against you with the police or any other authority.

You may consult a local advocate and discuss the subject at length for further issues on the subject matter

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

There was a giving and taking of the child in 2012. Both the biological mother and adoptive parents (us) had this implicit understanding from 2012 to 2015. Unfortunately, we did not execute the adoption deed during that time. Now, the biological mother wants to cancel that adoption. Also, neither the biological mother or father had custody of the child from 2012 to till date. Under these circumstances, can we get the child adopted without the parent's consent?

Just because the child was taken care by you for a few years, it cannot be claimed as ground for taking adoption of the child without the consent of the biological parents.

If there was no proper adoption earlier then you may have to get the child adopted legally following the procedures and rules meant for this purpose.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

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