• Adoption of child of wife's first marriage

Dear Sirs,

My wife has a daughter from her first marriage which was divorced in 2011. The decree had clearly stated that the court has given full custody to the mother and she will solely maintain the daughter. The father is disappeared and as per my latest sources it is understood he is in Malaysia enjoying. As per the decree he is suppose to pay certain amount for daughter till the time she is married on which he hasnt been doing so since the time of divorce. 

My question is as follows : 

1. I want to legally adopt the daughter and for that do I need a registered Deed of Adoption?. After 2010 amendment, can my wife give her daughter for adoption to me? Or we still need the biological fathers NOC where he is already disappeared since 2011...

Awaiting yours in anticipation.

Thank You.
Asked 2 years ago in Family Law from Mumbai, Maharashtra
Religion: Hindu
1) you need biological father consent to adopt the child . 

2) deed of adoption has to be executed wherein biological father and mother give child in adoption to you 

3) merely because mother has been given custody of the child dos not imply that she can give child in adoption to you 
Ajay Sethi
Advocate, Mumbai
45617 Answers
2680 Consultations

5.0 on 5.0

Delhi High Court
Teesta Chattoraj vs Union Of India on 30 March, 2012
Author: Vipin Sanghi

                  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

       UNION OF INDIA                                   ..... Respondent
                          Through:    Mr. Ruchir Mishra, Advocate



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.

Ajay Sethi
Advocate, Mumbai
45617 Answers
2680 Consultations

5.0 on 5.0

1) merely because mother has permanent custody does not mean she can give child in adoption to step father 

2) biological father consent is mandatory 
Ajay Sethi
Advocate, Mumbai
45617 Answers
2680 Consultations

5.0 on 5.0

1. An adoption is possible only through an adoption deed, which is to be executed by the biological parents of the child. The consent of the biological father of the child you desire to adopt, which is symbolized by his signature on the deed of adoption, is indispensable for adoption. If he does not consent then adoption cannot be made.

2. The judgment of court awarding custody in entirety to your wife does not permit her to circumvent the process of adoption. 
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

It is legal for you to adopt but in many cases the the biological father has to consent. If the biological father has abandoned the Child that is a ground for termination of his rights. The proceeding would be a Termination of Parental Rights and for Adoption. It would require an advocate's help, but again this would probably not be accepted by the Court. If the biological father consents then it could go forward. If he consents to termination of parental rights, he would no longer have the obligation to any support. If a biological father is not notified, he may later contest the adoption, if he acts within a certain period of time after the child's adoption.
If you have remarried and your spouse functions as a parent to your child, you may wonder if your spouse can adopt your child. Adoption by a stepparent isn't always possible, and it isn't for everyone, but it is an option some families find to be wonderful for them.Your spouse may for all intents and purposes be a parent to your child, but in the eyes of the law, he or she actually has very few rights. A stepparent is not a legal parent and doesn't have any of the rights a parent does.

T Kalaiselvan
Advocate, Vellore
35807 Answers
390 Consultations

5.0 on 5.0

Please advise in the case of Biological father nowhere to be found as he is not in contact at all and also in the Divorce Decree it is mentioned that Mother has Permanent Custody of the daughter. Mother can still give adoption NOC to me right without the biological father? He is actually not in contact since the daughter was born.

If your child's other parent is alive, you will need to obtain his or her consent to the adoption. A child can't have three legal parents, so the other legal parent must give up his or her rights.
 The termination of parental rights completely severs the legal bond between parent and child: however, it doesn't change the fact that your child has another person he or she is either biologically or emotionally connected to.
If the other parent will not consent to the adoption, you may be able to prove to the court that he or she has had little or no contact with the child or that the contact was dangerous or harmful. In that kind of situation, the court can terminate the other parent's rights.
Another situation that often comes up is if you don't know how to find the other parent to ask for consent. If you truly do not know how to locate him or her, the court will allow you to publish a legal notice in a newspaper. If the other parent does not respond, consent is waived and you can proceed with the adoption.
T Kalaiselvan
Advocate, Vellore
35807 Answers
390 Consultations

5.0 on 5.0

You should file execution application of divorce decree. Decree is still unfulfilled and he is enjoying in Malaysia. Bound him to pay the amount decreed. 

You have to take permission of her biological father. Permission is not necessary if father died, renounce the world, cannot be found etc. 

if you want to avoid his permission does not disclose his place of living, show before the court that he cannot be found. Then you can adopt her without her father's permission.   
Shivendra Pratap Singh
Advocate, Lucknow
5066 Answers
78 Consultations

4.9 on 5.0

Hi, for valid adoption deed the consent of the Biological father is very must.
Pradeep Bharathipura
Advocate, Bangalore
4551 Answers
203 Consultations

4.5 on 5.0

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