How to adopt a baby girl in india
JOTHIKUMARAN
(Querist) 08 August 2014
This query is : Resolved
Dear Sir,
We would like to adopt a baby girl from india after one year and please kindly advise us about the documents required and procedures. We have one own son 8 months old. This is my long time wishes and soul satisfaction for the society.
Thank you.
Nadeem Qureshi
(Expert) 08 August 2014
read section 6-12 of Hindu adoption & Maintenance act
6 Requisites of a valid adoption
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.
COMMENTS
Where any of the requirements as laid down under s.6 are not strictly observed, that non-observance of the requisite or requisites is enough to convert the adoption as invalid one.-Dhanraj v. Suraj Bai 1972 Raj LW 612
Doctrine of factum valet does not have its application in case the adoption is against what is said by the provisions of the Hindu Adoption and Maintenance Act, 1956-Lalla Ram v. Gohri Ram 1972 All WR (HC) 612
7 Capacity of a male Hindu to take in adoption
Any male Hindu who is 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 the them is unnecessary for any of the reasons specified in the preceding proviso.
COMMENTS
The person taking in adoption must not suffer from idiocy or insanity; he must have the capacity enough to understand the nature of the Act and what would be the legal effects of adoption . Simultaneously it is not the requirement the person concerned must be possessed with a very high degree of intelligence. There is a very strong presumption favouring soundness of mind.-Babubarelal v. Gulzari Devi 1979 All LJ 1333
Deaf and dumb but possessed with the capacity to express through signs and gestures, though not clearly, is to be taken as a person of sound mind.-Ambrish Kumar v. Hatu Prasad 1981 HLR 781
Proviso places a restriction as concerned to right to take in adoption that makes the consent of the wife a necessity so as to make the adoption valid. The consent must be obtained prior to the civil adoption takes place and not later on where the proviso is disregarded adoption is not valid.-Badrilal v. Bheru 1986 (1) HLR 81.
In the case of divorce the consent is not necessary but in the case of judicial separation, consent would be necessary. In case of two wives, consent must be of both the wives despite the fact that one of them was not living under the same roof for a big job of twenty or thirty years.-Bhooloo Ram v. Ram Lal 1989 (2) HLR 162
8 Capacity of a female Hindu to take in adoption
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 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 competent jurisdiction to be of unsound mind,
has the capacity to take a son or daughter in adoption.
COMMENTS
After the completion of the age of eighteen, a woman gets the capacity to adopt even though. she herself is unmarried. Where after the adoption, she is married, her husband would be step-father and she herself would remain adoptive mother as earlier. Adoption by an unmarried can also take place despite the fact that she is having an illegitimate child. - Ashoka Naidu v. Raymond AIR 1976 Cal 272.
A married woman has got no right to take in adoption during the subsistence of the marriage. But where the husband has completely and finally renounced the world or he had ceased to be Hindu or some competent court has declared him to be of unsound mind, the wife can adopt.- Dashrath V. Pandu 1977 Mah LJ 358
9 Persons capable of giving in adoption
(1) No person except the father or mother the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provision of 1[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 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 competent jurisdiction to be of unsound mind.
1[(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 has 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; 2[***]
3[(ia) "guardian" means a person having the care of the person of a child or of both his person and property and includes-
(a) a guardian appointed by the will of the child's father or mother; and
(b) a guardian appointed or declared by a court: and]
(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.
COMMENTS
Where the adoption takes place and step-son is given in adoption by step-mother having no capacity to give in adoption such an adoption is not valid one by virtue of s.5(1) read with s.6(ii)-Dhanraj v. Suraj Bai 1975 (Supp) SCR 73
It is the District Court where in the application for giving and taking in adoption has to be moved and not in the Family Court. How and in what manner the permission is to be made there is no such mention under the Act and the provisions that have to be followed are there as laid down under Guardians and Wards Act.-Central Bank Relief & Welfare Society, In re AIR 1991 Kar 6
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
12 Effects of adoption
An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family :
PROVIDED that -
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
COMMENTS
The assumption that all the ties of child with the family of his or her birth shall be severed operates only from the day the adoption takes place and from the day the ties are replaced by those created by the adoption in the adoptive family.-Kanwaljit Singh v. State of Haryana 1981 Pun LJ 64.
Adopted girl is conferred an entitlement to succeed the property within the meaning of s.8 of Hindu Succession Act despite the fact that the property was owned by the deceased by reason of his adoption.- Neelawwa v. Shivawwa 1988 (2) HLR 799.
Under the provisions of s.14 of the Hindu Succession Act, widow becomes an absolute owner, and it is not possible that the child adopted by her is divesting her of the right which has already been vested in her.- Dinaji v.Dadde AIR 1990 SC 1153.
Where the property is in absolute terms vested in a person as the last surviving coparcener a child subsequently adopted cannot divest him of it .-Krishnabai v. Ananda Sevaram AIR 1981 Bom 240
ajay sethi
(Expert) 08 August 2014
agree with nadeem
R.K Nanda
(Expert) 08 August 2014
no more to add.
Rajendra K Goyal
(Expert) 08 August 2014
Also go through the procedure given at following link:
http://www.adoptionindia.nic.in/parents/Guidelines-for-Adoption.html
V R SHROFF
(Expert) 08 August 2014
Well explained in details, no need to add further
