Bench:

A Bhan, K Kumaran

Issue:

Can adoption be done with proxy? And will the subsequent marriage of adoptive mother invalidate the adoption?

Facts:

• The petitioner,Narinderjit, who is a minor, was taken in adoption through the attorney and brother-in-law of the adoptive mother.

Enroll the Complete MasterClass Course on Hindu Laws: Click Here

• A Special Power of Attorney was executed duly embossed by the office of the Financial Commissioner, Punjab, in favour of the brother-in-law, authorising him to adopt NarinderjitKaur on behalf of the adoptive mother.

• The natural parents of NarinderjitKaur had the capacity to give the adoptive child in adoption and the adoptive mother had the legal capacity to take the adoptive child in adoption. Adoptive child had the legal capacity of being given and taken in adoption.

• Adoption took place at a Gurudwarawhere the natural father, with full and free consent of the adoptive child's natural mother, did actually and physically transfer the adoptive child to the adoptive mother by actually giving the said child in the lap of the adoptive mother's Attorney

• The giving and taking in adoption ceremony of the adoptive child was performed by observing and performing all due religious and social ceremonies befitting the occasion.

• In the passport of the petitioner, name of the natural father was mentioned.

• As the petitioner was being sponsored by her adoptive mother to immigrate to Canada, necessity arose for having a new passport mentioning the name of the adoptive mother.

• Petitioner applied for the fresh passport mentioning the adoptive mother's name and the said application was rejected by the Passport Officer by observing that the matter has been considered in consultation with the Government of India who have advised that adoption was made by proxy is not valid in Indian Law.

• It is further stated that the petitioner cannot be granted the passport as the adoptive mother, who was a divorcee earlier had remarried and, therefore, she had no authority to take the petitioner in adoption.

Judgement:

The court held that the child can be adopted "under the authority" of the parents. The adoptive mother had executed a valid Power of Attorney authorising her attorney to take the petitioner in adoption on her behalf. Actual adoption took place according to the Sikh rites. Further, Adoption cannot be invalidated because of the subsequent marriage of the adoptive mother.The petitioner became the daughter of the adoptive mother on the date she was taken in adoption and is, thus, entitled to a new passport with the name of her adoptive mother inserted in it. The court therefore directed the respondent to issue the passport applied for by the petitioner within two months

Relevant paragraphs:

"Validity of adoption has to be examined in the light of the Hindu Adoptions and Maintenance Act, 1956. Section 6 of the Act provides that no adoption shall be valid unless the person adopting has the capacity and 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 Section 11."