Adoption deed after 25 years of adoption of child
Deepak sharma
(Querist) 14 December 2013
This query is : Resolved
Respected Senior advocates,
We are three brothers and one sister (all are married), and one brother we gave it to our maternal uncle, no adoption deed was executed (we gave him to our maternal uncle in the year 1986, my biological brother is now married)
My father expired in the year 2009. My query is for all of you is after my father death we had got the inheritance certificate from the SDM in which it was mentioned that my biological brother is also a inherited one.
Now our requirement is we want to remove his name from the varisan (inherited) certificate.
My biological brother having all his certificates father name is my maternal uncle and aunt and also in municipal corporation also that his father is my maternal uncle, everywhere in every documents my maternal uncle is his father in graduation degree also my maternal uncle is real father name specified.
1. Could you please let us know how to removes his name from the varisan cerificate (because if it name is there then he will get the share in our property?
2. Can we go for the registered adoption
deed with our maternal uncle?
3. What is the process of adoption deed?
4. How long it will take to get the adoption cerificate?
Please help us as we are resident of Bareilly (Uttar pradesh) and my bilogical brother is living in agra?
BAALASUBRAMANNYAMM
(Expert) 14 December 2013
If you once go through the Hindu Adoptions and Maintenance ACt,1956, you can understand about your query:
10 Persons who may be adopted
No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-
(i) he or she is 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.
COMMENTS
There is a bar imposed by this s. 10 and that being a married person cannot be adopted. But the case is different where there is some custom among Jats of Punjab and Haryana in having a legal sanction and judicially recognised where under the custom permits the adoption of married person-Amar Singh V.Tej Ram 1982 (84 )Punj LR 2387
The person above the age of 15 years cannot be given in adoption and if there is some custom permitting that the same must be strictly pleaded and proved-Mahalingam v. Kannayyar AIR 1990 Mad. 333. 1989 (2) MLJ 3441
Existence of custom be it family or tribal custom having its applicability to the parties concerned whereby the adoption of a person married or of the age of more than 15 years is permitted, is all that is required to be established by the provision of section 10 so as to make adoption valid.-Maya Ram v. Jai Narian 1989 (1) HLR 352
11 Other conditions for a valid adoption
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 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 person;
(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 1[or in case of an abandoned child or 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 adoption.
COMMENTS
Requirement of an age gap of 21 years between the adoptee and the adopted, if violated is sufficient to render the adoption invalid.- Golak Chandra v . Kritibas AIR 1979 Ori. 205
Where the case is, one child is given to the family of other so that the child is brought up, this giving of the child does not constitute adoption. There must be an intention to give and to take the child in adoption.-Kewal Singh v. Bakshish Singh 1975 (77) Punj LR 321
Absence of parents at the time of adoption ceremony and not proving the giving and taking the child in adoption, adoption was held invalid. v.Bakshish Singh -Kewal Singh 1979 HLR 431
Devajyoti Barman
(Expert) 14 December 2013
1. Apply for removal of his name.
2. Yes
3. deed of adoption would be no help now rather make a deed of declaration stating prior adoption.
4. There is nothing called adoption certificate.
Rajendra K Goyal
(Expert) 14 December 2013
Well advised by the expert Devajyoti Barman ji.
ajay sethi
(Expert) 14 December 2013
no adoption deed can be made now . your brother is an adult 25 years old now . he can be adopted by your uncle only if he is not over 15 years
Deepak sharma
(Querist) 14 December 2013
Thank you sir's for your's expert advice
Regards,
Deepak
