You and the Biological father have to execute a deed of adoption to give the child in adoption to the adoptive parents

The deed of adoption should be Registered

Consent of your ex-husband is mandatory. If your ex-husband refuses to give consent for adoption, then the child cannot be given in adoption.

To legally give your son from a previous marriage up for adoption by your current husband, you will need to initiate a court proceeding by filing an adoption petition with the relevant family court, which will require your consent as the biological mother, your current husband's consent as the adoptive father, and ideally, the consent of the biological father as well.

Ideally, the biological father should provide written consent for the adoption, but if he cannot be located or is unwilling to consent, legal procedures may be necessary to establish his non-involvement. 

If you wish to change the child's surname to your current husband's, this can be requested during the adoption process.

The consent is mandatory and SC is dealing with the same in a case whether exemption can be granted. The position is still not in favour of one parent

The mandatory consent requirement under the Hindu Adoption and Maintenance Act, 1956. Section 9 of this law talks about the people capable of giving a child up for adoption — only the father or the mother can do so.

Clause 2 of Section 9 says that the father or the mother, if alive, shall have equal right to give a son or daughter up for adoption. However, it adds a condition to this.

It says that such a right can be exercised by either of them only with the consent of the other, unless “one of them 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”.

Here are the answers to your queries:

1. Procedure for your husband to legally adopt your son

   • Under the Hindu Adoption and Maintenance Act, 1956 (HAMA), for your husband to adopt your son, a valid adoption deed must be executed. This involves:

     • Obtaining the biological father's consent, as required under Section 9 of HAMA.
     • Executing a written adoption deed signed by both parties and preferably registered with the Sub-Registrar's office to avoid disputes.
     • If the father refuses consent (discussed below), you may need to approach the court for permission.

2. Is the consent of the ex-husband mandatory for adoption?

   • Yes, under Section 9 of HAMA, the biological father's consent is required for adoption if he is alive, even if he has relinquished his rights in the divorce settlement. The clause in the divorce agreement does not waive the legal requirement for consent explicitly under adoption laws. However, if your ex-husband agrees, you can execute an adoption deed in favour of your husband based on mutual consent.

3. What if the ex-husband refuses to give consent?

   • If your ex-husband refuses to consent, you can approach the family court for permission to proceed with the adoption. You will need to demonstrate:

     • His lack of involvement in the child’s upbringing.
     • The child’s best interests would be served by the adoption.

   • The court may grant permission if it finds that withholding consent is unreasonable or against the child's welfare.

Adoption laws prioritize the welfare of the child, so presenting evidence of your ex-husband’s indifference and your current husband’s intent to assume all responsibilities will strengthen your case. It’s advisable to consult a lawyer experienced in family law for drafting the adoption deed and managing legal proceedings.

Thanks and Regards,
Advocate Aman Verma
Legal Corridor

- As per law, the consent of biological father is mandatory for the adoption of the child.

- Since, your husband already given his statement before the Court at the time of mutual divorce that he will have no right over the child in future , then he cannot claim his custody. 

- You can registered an Adoption deed after attaching the statement of ex-husband. 

- Further, if refused by the registrar then file a petition before the family court for getting adoption on the ground of statement of ex-husband. 

1. Your present husband will have to apply before the court of law for this.

2. Since your ex husband was the biological father of the child, his consent is mandatory.

3. This does not trample his legal right of fatherhood over his son. 

Dear Client,
Your husband must execute a registered adoption deed under the Hindu Adoption and Maintenance Act, 1956, to adopt your son legally. Even though the divorce settlement has a clause where your ex-husband waived his claims over the child, his consent is still required by law for adoption as a biological father. You may get his consent in writing so that the process of adoption can be completed. Otherwise, you can also move the court to seek permission for adoption by showing that the adoption is in the best interest of the child, considering he never took part in the child's upbringing and also with the terms of the divorce. Make sure that all the documentation is complete to avoid any further problems arising out of incomplete paperwork of the adoption deed, and also consult a lawyer for proper guidance in the procedure. Let me know if further assistance is required.

Visit CARA website to get more details.

G.Rajaganapathy

Advocate

High Court of Madras