• Adoption and legal guardian

Hi
I need some advice on adoption and legal guardian ship.I have two kids one age 5 boy and other a girl 13, due to financial crunch we both husband and wife cannot take care of their education and daily needs. Can we give our kids to a known friend of ours. As he also have 3 daughters but he is fighting for his divorce and custody but still it is pending.  So in this situation can he be a legal guardian or adopt my kids and send them to hostel out of India.  For that what all formalities are required and will it affect his divorce case.
Please advise the right way.
Asked 8 months ago in Family Law from Singapore
Religion: Hindu
1) you and your wife can give in your son  and daughter  in adoption to friend however consent of his wife would be necessary to take the child in adoption 

2) deed of adoption should be duly regsitered

3) Supreme Court in case of Ghisalal v. Dhapubai , reported as AIR 2011 SC 644] has declared that it is mandatory for a Hindu male to take consent of his wife, unless she is incapacitated from giving consent, before adopting a child.
Ajay Sethi
Advocate, Mumbai
23302 Answers
1220 Consultations
5.0 on 5.0
1) Section 6 of Hindu adoption and maintenance act  enumerates the requisites of a valid adoption. It lays down that no adoption shall be valid unless the person adopting has the capacity as also the right to take in adoption; the person giving in adoption has the capacity to do so; the person adopted is capable of being taken in adoption, and the adoption is made in compliance with the other conditions mentioned in Chapter II.

2)  Section 7 lays down that any male Hindu who is of sound mind and is not minor has the capacity to take a son or a daughter in adoption. This is subject to the rider enshrined in the proviso which lays down that if the male Hindu has a wife living then he shall not adopt except with the consent of his wife unless she is incapacitated to give the consent by reason of her having completely and finally renounced the world or her having ceased to be a Hindu or she has been declared by a court of competent jurisdiction to be of unsound mind.
Ajay Sethi
Advocate, Mumbai
23302 Answers
1220 Consultations
5.0 on 5.0
1) without wife consent  your friend cannot adopt your children 

2) further A couple cannot adopt a child if they already have adopted or have a child of the same gender
Ajay Sethi
Advocate, Mumbai
23302 Answers
1220 Consultations
5.0 on 5.0
Since your friend does not have a son you can give your son to him in adoption but daughter cannot be given in adoption as he has 3 daughters. The pendency of his divorce and child custody petitions in the court does not operate as a disqualification to him getting your children in adoption. The adoption deed will have to be executed and registered. He can adopt children notwithstanding the refusal of his wife.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1.Yes, a child below the age of 15 years can be given in adoption to another.
2. Once adoption is lawfully executed you relinquish all your eights over the custody of the child and hence you can not have any say let alone putting any objection of the child is sent abroad for study.
3. Do note that to give in adoption the consent of both parents is mandatory.
4. This has not relation to the pending litigation.
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
4.9 on 5.0
For taking adoption, wife consent is must. I think she may not give consent. First let the divorce issue be solved.  Then you think about giving adoption.  

Please go through the following link to know the procedure of adoption. 

http://www.cara.nic.in/InnerContent.aspx?Id=151#Procedure%20for%20Adoption
Ravinder Pasula
Advocate, Hyderabad
316 Answers
68 Consultations
4.9 on 5.0
he can adopt your child but these is some ristriction as :

1. a person cannot adopt a boy when he already has a boy.
2.  a person cannot adopt a girl when he already has a girl.
3. consent of husband and wife is necessary. 
4. a divorced man or woman can adopt a child on his/her free will. 

in your case if wife is not agree he cannot adopt a child. after declaration of divorce he can adopt your both child. 
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
Hi, He can't adopt the baby girl as per law as he has already 3 daughters.

2. He can adopt baby boy and both of you entered into registered deed of adoption then only it is valid adoption.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Your friend can take your son in adoption witrh the consent of his wife,

2. He can not take your daughter in adoption since has 3 daughters,

3. He must have the capacity to adopt.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
1. He shall have to wait till he is divorced,

2. A divorcee can take in adoption,

3. He can take your son in adoption since he already has daughters.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
For giving in adoption certain rules are to be observed. Being Hindu the rules for adoption to be followed are envisaged in the Hindu Adoptions and Maintenance act.
Under this act only Hindus may adopt subject to their fulfilment of certain criteria. The first of these asserts that the adopter has the legal right to (under this Act that would mean they are a Hindu). Next, they have to have the capacity to be able to provide for the adopted child. Thirdly the child must be capable of being adopted. Lastly, compliance with all other specifications must be met to make the adoption valid.

Men can adopt if they have the consent of their wife or of all of their wives. The only way of getting around obtaining the permission of the wife or of the wives is if she or if they are unsound, if they have died, if they have completely and finally renounced the world, and if they have ceased to be a Hindu. Men who are unmarried can adopt as well as long as they are not a minor. However, if a man were to adopt a daughter, the man must be twenty one years of age or older.
Only unmarried Hindu women can legally adopt a child. A married woman can only give her consent to adoption by her husband. A married woman whose husband adopts a child is to be considered the mother. If the child is adopted and there are more than one wife living in the household, then the senior wife is classified as the legal mother of the adopted child
 An adoption can only occur if there is not a child of the same sex of the adopted child still residing in the home. In particular, if a son were to be adopted then the adoptive father or mother must not have a legitimate or adopted son still living in the house.
Therefore the last clause mentioned above forbids him from taking your children (girl) in adoption.
T Kalaiselvan
Advocate, Vellore
14076 Answers
127 Consultations
5.0 on 5.0
Sir his wife will not agree as she is not giving  her own daughters in his custody, divorce matter is going on between them.

Then he cannot take your children in adoption.  You have to look for some other source to take care your children.
T Kalaiselvan
Advocate, Vellore
14076 Answers
127 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
14076 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23302 Answers
1220 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
438 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0