ADOPTION DEED UN-REGISTERED ?
S.K.SARRAF (ADVOCATE)
(Querist) 04 November 2008
This query is : Resolved
WHAT ARE THE DEFENCES AVAILABLE FOR AN UN-REGISTERED ADOPTION DEED ?
FACTS > AN ADOPTION WAS EFFECTED BY SON-LESS FATHER ON STAMP PAPER DECLARING AND ADOPTING ABC AS HIS LAWFUL SON, FOR ALL PURPOSES. THIS WAS ACKNOWLEDGED BY PANCHAYAT, VERIFIED BY LOCAL POLICE STATION, AND EXECUTED IN PRESENCE OF 2 WITNESSES TO IT IN 1980.
CAN THE ADOPTED SON GET THE TRANSFER OF THE PROPERTY OF HIS ADOPTIVE FATHER, IN HIS PERSONAL NAME,EVEN WHEN THE ADOPTION DEED IS UN-REGISTERED ?
IS THERE ANY BAR ?
S.K.Sarraf,Advocate.
SIKKIM.
sunnysarraf@gmail.com
98324-62260
Srinivas.B.S.S.T
(Expert) 05 November 2008
There is no bar. but when the transfer is disputed it is the burden of the adopted to prove that the adoption is valid. As per Hindu Law if the person adopted he has to prove that there is giving and taking cermony that is suffice.
KamalNayanSaxena
(Expert) 05 November 2008
Section 16 of Hindu Adoptions and Maintenance Act envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law
S.11(vi) of the Act, which records that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned with intent to transfer the child from the family of its birth to the family of its adoption. The give and take in adoption is a requirement, which stands as a sine qua non for a valid adoption.
Both significant aspects are absent in your case, so in my opinion the alleged adopted son has least possibility in his favour.
Manish Singh
(Expert) 05 November 2008
Registration has been made mandatory for adopion deeds but the fact that the registration is not done does not oust the adopted son from being a son or so. even the judiciary has ruled that a person who had been residing with the family as their son but without any adoption or deed made, he was entitled to be called adopted son and hence he was a successor to the properties.
S.K.SARRAF (ADVOCATE)
(Querist) 05 November 2008
THE ADOPTED SON INTENDS TO SAVE HIS JOB, HE WAS INDUCTED AS A PEON IN GOVT. OFFICE, NOW FOR WANT TO UN-REGISTERED ADOPTION DEED, HIS FATE IS CLOUDED.
THE ADOPTION DEED WAS EXECUTED WHEN HE WAS JUST 7 YRS OLD..SOMETIME IN 1980, BY HIS MATERNAL UNCLE...WHO HAD NO SONS OF HIS OWN.
WHAT ARE THE DEFENCES AVAILABLE.
S.K.SARRAF.
Murali Krishna
(Expert) 05 November 2008
You did not indicate whether the parties are hindus or not. If the parties are hindus, Hindu Adoptions and Maintenance Act, 1956 applies. If so,
Registration of the adoption deed is not mandatory under the Hindu Adoption and Maintenance Act.
Yes, as stated by KamalNayan Saxena, Sec 16 of the Act envisages a presumption by court that adoption is done in terms of the Act, but it is a rebuttable one - Hence not mandatory - Even registration Act also did not mention it.
If you could prove that giving and taking is done, and the adopted child lived with the adoptive parents as their child, you have no problem. The child would have the status of natural son and acquires all the rights & liabilities of a natural son. Ex. Educational certificates etc, should be relied upon for this purpose.
Manish Singh
(Expert) 05 November 2008
The Rules/regulations have been changed for adoption after the instructions made on this behalf by the Apex Court. Now the rules /regulatons are as follows :
Procedure For Incountry Adoption:
Stage I
Prospective adoptive parent(s) should register themselves with the local RIPA/LAPA or Adoption Coordinating Agency or with the State Adoption Cell.
Stage II
A home study report of the prospective adoptive parents will be prepared by the social worker of the Agency. To allay the fears and apprehensions of the prospective adoptive parent(s), pre-adoptive counseling sessions will be undertaken by the social worker during the preparation of the home study report. Assessing the ability of a couple to parent a child not born to them is of crucial importance in a successful adoption. Therefore, their suitability to care for an unrelated child is assessed through this home study and counselling. Documents relating to the financial and health status of the prospective parent(s) will be part of the Home Study Report.
In case of Inter-State adoption applications by parent(s), they will be accompanied by Home Study prepared by a qualified social worker working in a RIPA/LAPA. Where State Govt.’s have officially delegated such work for its Officials, the Home Study Report could be prepared by the concerned Official.
Criteria for eligibility of parent(s) will be adhered to, as stated in Para 1.1.7.
The Agency will make a suitable reference from amongst the admitted children legally free for adoption. If no suitable child is available, the family will be referred to the ACA.
Stage III
After a Home Study has been accepted and approved, a child will be shown to the parent(s). The agency will take care to match a child meeting the description, if any, desired by the parent(s).
In case of placement of older children (above the age of 6), both written and verbal consent of the child will be obtained.
Stage IV
Once a successful matching has been done, the agency will file a petition in the Court/JJB for obtaining the necessary orders under the relevant Act. The above process will normally be completed in 6-8 weeks.
Adoption Act
The child can be legally placed with the parent(s) under HAMA/GAWA/JJ-Act 2000. The prospective parents should be informed about the different Acts available and the ramifications of each one. It would be left to them to decide as to which Act they would like to file their petition under, provided that they are eligible to do so under the chosen Act. As stated above, the prospective parents must be made to fully understand the status of their adoption under each Act.
Follow up visits
Once an order has been issued, it should be followed by regular follow-up visits and post adoption counseling by the social worker till the child is adjusted in the new environment. The follow up should preferably be for a period of one year at-least or as directed by the Court/JJB. Copies of the follow-up reports will be sent to the District Social Welfare Officer/concerned State Government Department, concerned Scrutiny Agency and the Court/JJB from where the order was obtained.
ritu bhadana
(Expert) 03 April 2009
manish singh has explained it elaborately
