• My husband wants to adopt my son from first marriage

Respected Sirs,

1.My husband is convinced to adopt my son but we are not sure about the procedure for it. My lawyer says that adoption of step child is not possible as we can't make an adoption deed in your case. He says HAMA requires give and take procedure and how can i give my own child to my husband? 
In case my lawyer is wrong, what should be the language of this particular adoption deed?

2.Or is it going to be applying for something like joint custody / my husband sharing the custody of my son ? 

3.My divorce was an ex parte granted on the grounds of abandonment ( my ex husband hasn't turned up for last 8 years) but my divorce decree is silent about custody of my child. Do i need to get sole custody from court first?

Kindly advise.
Asked 2 years ago in Family Law from Bhopal, Madhya Pradesh
Religion: Hindu
for adoption consent of biological father is must that is consent from your first husband is must and then adoption deed should be duly registered
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
you can not adopt  child without the consent of its biological father legally
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
Hi, consent of your first husband is must.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
your  ex-husband,  is still the natural guardian of the child under the Hindu law. without his consent your current husband  cannot adopt the child .
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Your lawyer is not wrong. Adoption cannot materialise unless your ex-husband comes forward to make the deed of adoption subject to his rights.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
contact a detective agency . trace your ex husband whereabouts
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
If your ex-husband is not available to give consent then your husband cannot adopt your child as latter has no right over the child born out of your first marriage. You have to locate your husband and then request him to consent to adoption.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
i have no intention of making fun of your situation . i have merely suggested a practical solution . in case your ex husband does not consent to adoption there is no way your present husband can adopt the child . hence i suggested you contact a detective agency . for your information lawyers use services of detective agency in number of cases if it is necessary to find some information .
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Mr Sethi is not making fun of your situation,now a days these practices are adopted to know the real facts and detective agency plays very important role in these type of investigation
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
your ex husband can give an affidavit in writing on stamp paper that he has no objection to his son being formally adopted by your husband . deed of adoption   has to be signed by both the natural parents . get it drafted by a local lawyer .
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
By no stretch of the imagination it can be construed from the reply of Mr.Sethi that he had any intention of making fun of your situation. You had nowhere mentioned in your query that you have availed the services of a detective agency to trace your husband, so Mr.Sethi advised you to do that.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
The consent of your ex-husband to the adoption of your son by your husband has to be articulated in a deed of adoption which shall bear the signature of your ex-husband. Get the adoption deed drafted by a lawyer so that you are able to repel any subsequent legal action which may be brought by your ex-husband.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
no offence taken . Thanks for your appreciation
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
my pleasure
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
Thank you for appreciating. All the best.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
Deed of Adoption is to be made signed by the biological parents  in favour of your current husband  . it has to be registered . once it is done your current husband becomes adopted father of your son
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Adoption is to be  signed by the biological parent  in favor of your parent (your husband) it has to be registered .
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
Adoption deed is required to be signed by your ex-husband in favour of your husband. Once it is done it has to be registered in accordance with law. Thereafter your husband will become the adoptive father of your child.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
when you have married again then you can not be called mother of that boy or girl,in that case father has a right to give the child to  new parents which has to accpeted by the receving parents

Format of adoption deed

THIS DEED OF ADOPTION 
DATED:-………………………………..
BETWEEN
1. ADOPTIVE FATHER/MOTHER
NAME: …………………….. 
FATHER/HUSBAND NAME:………………………………..
Aged...........years, 
RELIGION………………………….
CASTE:………………………………
RESIDING AT…………………………………….

2. NATURAL FATHER/ MOTHER/GUARDIAN
NAME: …………………….. 
FATHER/HUSBAND NAME:………………………………..
Aged...........years, 
RELIGION………………………….
CASTE:………………………………
RESIDING AT…………………………………….


WHEREAS :

The Adoptive Father has no son or son’s son or son’s son’s son living and he is desirous of adopting a suitable boy to be his son and the son of his wife ……………………………. who is living. / The adoptive Father has no daughter or son’s daughter living./ The Adoptive Father is more than twenty-one years older than the said ………………….(ADOPTED CHILD NAME) / The Adoptive Mother is a widow having no son or son.s son or son.s son.s son living./ The Adoptive Mother remained unmarried and has no intention to marry at all in view of her fairly advanced age.



The Natural Father has agreed to give his son …………………. now aged about........... years in adoption to the Adoptive Father./ The said Guardian having consented to the said proposal of the Adoptive Father & the Guardian declares that necessary application was made to the............ District Judge Court under the provisions of the Guardians and Wards Act, 1890 for necessary permission to give the said ……….. in adoption to the Adoptive Father and the required permission has been granted by the District Judge vide his Order................. dated.............. subject to the conditions that the adoptive parents should submit to the Court.s jurisdiction and furnish a periodical report pertaining to the maintenance and well being of the adopted daughter in the hands of the adoptive parents.


The Adoptive Father has the only wife ……………………... living who has given her consent to the said adoption. / Whereas the Adoptive Father is anxious to adopt a daughter expeditiously owing to his serious ill health so as to take care of him as his wife is dead./ The Adoptive Mother is desirous of taking a son in adoption owing to her indifferent health and advanced age, lest she may die and her property be wasted and her lineage be extinct once for all. The Adoptive Mother is desirous of taking a daughter in adoption to take care of her person and property at her old age (as she has no other kith or kin or lineal descendent of her husband).


The Natural mother of ……………. is dead and the Natural Father being married to …………………………. who is the step-mother of ……………… her consent to the adoption is not necessary./ The Natural Mother has agreed to give her ………………………. Now about.............years in adoption to the Adoptive Mother, (as she is unable to maintain her big family comprising ……… daughters and ………….. sons, all …………….minors…………….majors).

The Adoptive Father and his wife declare that they fulfill the requirement of the law of adoption as prevailing in this country as well as in ………………………,
that they have the requisite permission to adopt from the appropriate authorities in their country, that the adopted daughter/son will be able to immigrate to the Country of the adoptive parents, that she/he will be able to obtain the Nationality of the adoptive parents, and that he/she will be able to come to India occasionally whenever he/she desires.

The Guardian declares declares that he has duly scrutinized the proposal of the said Adoptive Father with regard to adoption and made necessary inquiry with the assistance of …………………. And found that the adoption would be beneficial to the child, financially, socially, morally and in every respect.

The Guardian further declares that he has also caused necessary investigations into the economic status and social conditions of the family of the adoptive parents and on the questions of health and psychological preparedness for adoption by the Adoptive parents as well as the child’s acceptance within the community of the adoptive parents, through the assistance of …………………… Guardian is satisfied that the adoption will be beneficial to the adopted daughter and will be in the interest of her/his welfare.



The said …………………………….(ADOPTED CHILD NAME) is still unmarried.

NOW THIS DEED WITNESSES that the said Natural Father has this day, after performing the necessary religious ceremonies before a gathering of friends and relatives of both the parties held at......... (place) at..........(time) given the said ……………. his son, to the Adoptive Father who has taken the said …………. in adoption and that the said ……………… shall have all the legal rights of and in the Hindu Coparcenary of the Adoptive Father from this day as if he (………….) were his (Adoptive Father) natural son.

IN WITNESS whereof the said …………………….(the Adoptive Father), the said ……………………….. (the Natural Father) and the said Smt. ………….. (wife of ………..) have hereunto signed these presents in the presence of all friends and relatives gathered, two of whom at the request of the parties have also hereunto signed as attesting witnesses, on this date first above written.


Witness . (Signature)


NOTE: IMP RULES OF ADOPTION 

Section 8 of the Hindu Adoptions and Maintenance Act recognises the right among other female Hindus, of a widow to adopt a son or daughter to herself. Under the law prevailing prior to the Hindu Succession Act, 1956 no female including a wife or a widow could adopt a son to herself. The effect of adoption by a widow of a son or daughter is that for all purposes the adoptee becomes the son or daughter not only of the widow but her deceased husband as well with the same status as that of a natural-born child with all the consequences and incidents of that status including succession to all their relations.

After an adoption the adopted child shall be deemed to be the child of his or her adoptive parents with all the legal incidents and rights flowing therefrom as that of an after-born natural son or natural daughter of the adoptive parents. sec. 12 lays down that the adopted child shall not divest any person of any estate which vested in him or her before the adoption hence it does not preclude the adopted child from claiming his share in the joint family properties, for if a share is given to the adopted child there is no question of divesting any person of any estate which vested in him before adoption.

According to sec. 10 the person to be adopted should not have completed the age of fifteen years, unless there is a custom or usage whch permits persons who have completed the age of fifteen years being taken in adoption.
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
my plesure
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
Although you have been given a sample deed but in your own legal interest do not copy paste it as such deeds are a far cry from the legal requirements. In the event of a subsequent challenge by your ex-husband it may be blown apart to smithereens in court. So get it drafted from your own lawyer on the basis of tripartite terms and conditions settled so that it can achieve the purpose for which it is made.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1) get the adoption deed drafted by your lawyer . dont go in for ready made formats . 

2) you and your ex husband have to give son in adoption to your current husband
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
All the best.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0

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