Adoption
ANAMICA GOEL
(Querist) 27 September 2014
This query is : Resolved
i m from general category,one of our known person from schedule caste,want to adopt my son[12yrs.old]is it valid.will my son b considered a SC after adoption process.Will he b able 2 get quota in his further studies
ajay sethi
(Expert) 27 September 2014
deed of adoption has to be executed and registered wherein you give your son in adoption to your friend . adopted son would be entitled to benefits of adopted parents
Dr J C Vashista
(Expert) 28 September 2014
Well advised by expert Sh. Ajay Sethi, I agree.
Nishant
(Expert) 29 September 2014
I must get all papers , So formation will be in two months after meeting me +919892931504
malipeddi jaggarao
(Expert) 29 September 2014
It is not that simple to claim reservation by simply giving the boy in adoption. There are many guidelines issued by Government of India. The following is the extract of some of such guidelines:
Govt. of India’s instructions on various matters concerning Scheduled Caste and Scheduled Tribes including those on issue of caste certificates
No. 35/1/72-R.U. (SCT.V) Dt. New Delhi, the 2nd May 975
Subject: Issue of Scheduled Castes and Scheduled Tribes Certificate
5. Cases of adoption:
Great care has to be exercised in dealing with cases where a person claims to
be a Scheduled Caste on the ground that he has been adopted by a Scheduled
Caste person. The validity of the adoption has to be clearly established before
any caste certificate can be given. It is for the party to prove his claim by cogent
and reliable evidence.
(i) The requirements of valid adoption are given in section 6 to 11 of the
Hindu Adoption and Maintenance Act, 1956 (relevant extracts of
which are attached). The actual giving and taking of the child in
adoption is a mandatory requirement and thereafter the adopted child is
deemed to be the child of his adoptive father or mother for all purposes
and the child severs all ties with the family of his or her birth.
Ordinarily, no child who has attained the age of 15 years or who is
married can be given in adoption unless there is a custom or usage
applicable to the parties.
(ii) In deciding whether an adoption is valid, the certificate issuing
authority should satisfy himself that all the requirements of Law have 161
been complied with. He should also take into account the behaviour of
the child after adoption whether he physically lives with and is
supported by his adoptive parents and receives no financial help from
his original parents. In case these conditions are not satisfied, the
certificate should be refused.
(iii) Where the case relates to an adoption of a married person or of a
person of the age of 15 years and above, the certificate shall be
required to be given by the District Magistrate who shall, after making
due enquiries as to the validity of the adoption and as to whether such
adoption is permitted by a custom or usage applicable to the parties,
make an endorsement to that effect on the certificate. Such custom or
usage should have been continuously and uniformally observed for a
long time and obtained the force of law among the Hindus of that
particular area, or that community, group or family provided that the
custom or usage is certain and not unreasonable or apposed to public
policy and in the case of custom or usage in respect of a particular
family, that the custom or usage has not been discontinued. In addition
it should be verified that all other conditions for a valid adoption,
including the physical transfer of the adopted, person to the family of
the adoptive parents and that he has severed all ties with the original
parents are fulfilled.
Extracts from ‘The Hindu Adoptions and Maintenance Act, 1956’
(78 of 1956)
CHAPTER II—Adoption
Requisites of a valid adoption
6. 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.
Capacity of a male Hindu to take in adoption
7. Any male Hindu who is of sound mind and is not a minor has the capacity to take a
son or a daughter in adoption.
Provided that, if he has a wife living, he shall not adopt except with the consent
of his wife unless the wife 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.
EXPLANATION: If a person has more than one wife living at the time of
adoption, the consent of all the wives is necessary unless the consent of any one of them is
unnecessary for any of the reasons specified in the preceding proviso. 162
Capacity of a female Hindu to take in adoption
8. Any female Hindu—
(a) who is of sound mind,
(b) who is not a minor, and
(c) who is not married or if married, whose marriage has been dissolved
or whose husband id dead or 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, has the
capacity to take a son or daughter in adoption.
Persons capable of giving in adoption
9 (1) No person except the father or mother or the guardian of a child shall have the
capacity to give the child in adoption.
(2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if
alive, shall alone have the right to give in adoption, but such right shall not be exercised save
with the consent of the mother unless the mother 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.
(3) The mother may give the child in adoption if the father is dead or has
completely and finally renounced the world or has ceased to be a Hindu or has been declared
by a court of a competent jurisdiction to be of unsound mind.
(4) Where both the father and mother are dead or have completely and finally
renounced the world or have abandoned the child or have been declared by a court of
competent jurisdiction to be of unsound mind or where the parentage of the child is not
known, the guardian of the child may give the child in adoption with the previous permission
of the court to any person including the guardian himself.
(5) Before granting permission to a guardian under sub-section (4), the court shall
be satisfied that the adoption will be for the welfare of the child, due consideration being for
this purpose given to the wishes of the child having regard to the age and understanding of
the child and that the applicant for permission has not received or agreed to receive and that
no person had made or given or agreed to make or give to the applicant any payment or
reward in consideration of the adoption except such as the court may sanction.
Explanation—For the purposes of this section—
(i) the expression “father” and “mother” do not include an adoptive father
and an adoptive mother.
(ia) “guardian” means a person having the care of the person of a
child or both his person and property and includes—
(a) a guardian appointed by the will of the child’s father or mother,
and 163
(b) a guardian appointed or declared by a court;
(ii) “court” means the city civil court or a district court within the local
limits of whose jurisdiction the child to be adopted ordinarily resides.
Persons who may be adopted.
10. No person shall be capable of being taken in adoption unless the following
conditions are fulfilled, namely: --
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage
applicable to the parties which permits persons who are married being
taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a
custom or usage applicable to the parties which permits persons who
have completed the age of fifteen years being taken in adoption.
Other complied Conditions for a valid adoption
11. In every adoption, the following conditions must be complied with: --
(i) if the adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son, son’s son or son’s son’s
son (whether by legitimate blood relationship or by adoption) living at
the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom
the adoption is made must not have a Hindu daughter or son’s daughter
(whether by legitimate blood relationship or by adoption) living at the
time of adoption:
(iii) if the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty-one years older than the person to be
adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty-one years older than the person to be
adopted.
(v) The same child may not be adopted simultaneously by two or more
persons;
(vi) The child to be adopted must be actually given and taken in adoption by
the parents or guardian concerned or under their authority with intent to
transfer the child from the family of its birth or in the case of an
abandoned child or a child whose parentage is not known, from the place
or family where it has been brought up to the family of its adoption:
Provided that the performance of datta homam shall not be essential to the
validity of an adoption.
Hence only to claim reservation if you entertain to give the child in adoption, your wish may not be fulfilled that easily.
T. Kalaiselvan, Advocate
(Expert) 03 October 2014
Though the procedure to be followed in the given case will be very tough and lengthy, there are provisions that the adoptive child may reap the benefits of the adoptive parents.
