Dear Querist

Consent of biological father in custody case is must.

After that execute a adoption deed and registered the same.

1) you need to consent of biological father to adopt the children

2) your wife as mother has only been granted custody of the child .

3) mother cannot give her unilateral consent to give child in adoption to you

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

Yes you can take custody of them as well as theit legal guardian by way of registered deed of adoption.

Do note that without written consent of the biological father of the children you can not adopt the children.

For adoption of the children the consent of biological father is essential. The mother alone cannot give consent to adopt the children, moreover the mother is going to remain same so need for adoption for her. It is required for you alone, so ask her ex husband to give a consent letter or NOC for adopting the children.

Hi, consent of the natural father is very much necessary so you have to request the natural father and execute adoption deed in your favour so the adoption is become legally valid.

1. The custody by your wife of her children born from her previous marriage is insufficient for you to adopt them.

2. You require the consent of the father to adopt them as your children. If he consents to their adoption by you, an adoption deed may be drawn up in accordance with the law, failing which you cannot adopt them.

3. Your wife has no right to execute the deed of adoption without the consent of the father of the child.

1) mere signature of biological father on adoption deed Is not sufficient

2) biological father and mother have to remain present at time of registration of deed of adoption

Hi, natural parent must present before the Sub-Registrar and execute adoption deed.

1. Either you or your wife may be physically present in the office of the local registrar. The presence of the other spouse is not required.

2. He should be personally present before the registrar. His mere signature will not suffice.

It depends on the registering authority, if the registrar insists on the presence of biological father of the child to be given in adoption, the biological father has to be present, or if his consent alone is sufficient in the form of an affidavit, then the matter can be taken up,but generally the biological father's presence will be insisted since the mother is already your wife and to rule out the possibility f any fraud they may insist the father's presence.

Either you and your wife go to his place and execute the adoption deed or invite him at your place for the same.

His signature as party to the deed is better option.

1. You can take those two children of your wife in adoption provided you received consent from both of their biological parents,

2. Without the written consent of their biological parents, you can not take them in adoption.

1. Both of then should be present during registration of the adoption deed,

2. It is required to ensure that the biological father can not claim lateron that his signature was availed under coercion or was forged.

1. why you want adoption if you your wife is the natural guardian.

2. you should adopt swift and short procedure and get same relief.

3. you should file declaratory suit and make your wife's ex husband as opposite party.

4. claim that you will be the father of both child and their surname will be changed accordingly.

5. if her ex husband give his consent then court shall pass a decree under section 34 of SRA and from the date of decree you shall be treated as their father.

6. if you want to adopt them then a legal question will arise that they are in legal custody and their real mother can't be converted into adoptive mother.

7. currently in legal terms you are step a father so it is easy for you to convert yourself into father by filing simple suit.