Reg child adaption
Aravind
(Querist) 03 August 2009
This query is : Resolved
My elder brother was brought up by my paternal aunt(My fathers sister and her husband)as they do not have children for almost 15 yrs in their married life.
They took my brother when he was in the age of 3 yrs and brought him up till his marriage. Almost after 10 yrs of growing my brother my aunt was blessed with 2 male children. After getting their children they kept my brother aside and even they didn't give him proper education also. As he was accustomed to that environment he was unable to come back to my parents also.
My uncle provided good education to his both sons and now they both are well off. 6 yrs back my aunt also left the world. But my brother is leading a horrible life with out getting any support from them and neither he can not come back to my parents also. And my brother got married and gifted with 2 daughters and he faced problems in his married life and got divorced.
Now the problem is my uncle at the age of 69 is going to marry again.
Even they took my brother there is no adaption documents with my brother. But in his education certificates my uncle name is mentioned as my brothers father.
My doubt is:
Eventhough my uncle got good properties will he get any rights on his property or not?
Can he claim any thing legally b'coz his position is worst when compared to the other 2 sons of my uncle?
As I said earlier my uncle is going to marry at 69 yrs his both sons are planning to approach the court of law for the properties. in the same way whether my brother can do any thing?
I need a proper suggestion in this issue, experts please help me out to relieve my brother from his financial hurdles as well as his family hurdles.
Thanking you.
Best Regards
Aravind.
9840012521
Y V Vishweshwar Rao
(Expert) 03 August 2009
1- In Adoption giving the Boy in adoption and taking the Boy in adoption is to be proved
2- Educational Certificates of Your brother are showing that he is son of Your Uncle , it supports his claim as adopted son of Your Unlce
3- The marriage is also performed by Your Uncle and Aunt( as their son ) afrter they got two natural Sons- this also support your brother's Claim
3- He can file a suit or he can implead himslef as party to the suit that may be filed by his Younger brothers
4- After Adoption of your brothr , birth of Sons to your Uncle can not defeat your brothers rights - as adopted son .
However you are required to contact your local Area Senior Advoccate in this matter and discuss persoanlly !
A V Vishal
(Expert) 03 August 2009
Dear Aravind
Going by your query, what has happened is really unfortunate.
The dattak ceremony primarily involvea a dattak grahan, i.e. the actual giving and taking of the child and a dattak homam. However, there were several controversies because there was no one standard rule. So, in 1956, the Hindu Adoption and Maintenance Act was enforced which standardized as well as modernized the rules and process for adoption.
Some important features of this act are:
1. Adoption has been made a secular thing. There is no necessity of any religions ceremonies or other religious aspects.
2. Both a man and a woman can adopt on their own right.
3. Both a boy or a girl can be adopted.
4. Orphans, out of caste children, or children in close relation, can also be adopted.
5. Widow, widower, and bachelors can also adopt.
6. In the case of Naidu vs Naidu AIR 1970, SC has held that the court need not look into the motives of adoption.
Requisites for Adoption
Section 6 of the HAM Act 1956 lays down the following 4 reqiurements
1. The person who is adopting must have the capacity and the right to adopt.
2. The person who is giving the child in adoption must have the capacity to give.
3. The person who is being adopt must be eligible to be adopted.
4. The adoption must satisfy all the rules given in this act.
Section 7 describes which Hindu Male is capable of adoption:
1. Any Hindu male who has attained the age of majority and who is of sound mind can adopt.
2. If he is married, he must take consent from his wife. If he has multiple wives, consent from all the wives is required. In
the case of Bhooloram vs Ramlal AIR 1989, MP HC has held that if the consent of the wife living with the husband is obtained but the consent of the wife living away has not been obtained then the adoption is void.
3. A wife's consent is not required is the wife has completely renounced the world and has become a sanyasin, has changed her religion and has ceased to be a Hindu, or has been proven by a competent judge to be mentally unsound.
Section 8 describes which Hindu Female is capable of adoption:
1. She must be a major and must not be mentally unsound.
2. She is unmarried, is a widow or a divorcee. In the case of Vijayalakshamma vs B T Shankar, AIR 2001, SC has
held that consent from a co-widow is not required because a widow can abopt on her own right.
3. A married woman is allowed to adopt only if the husband has renounced the world completely, or is of unsound mind,
or has ceased to be a Hindu.
This is a big change from pre-act situation. Earlier, a woman had no right to adopt.
Section 9 describes who has the capacity to give a child in adoption
1. Only the natural father has the right to give a legitimate child in adoption. However, the father must get consent from
the natural mother unless the mother has been declared by a competent court to be of unsound mind, has renounced the world, or has ceased to be a Hindu.
2. If the father is mentally unsound, or has renounced the world, or has ceased to be a Hindu, or is dead, the mother can give the child in adoption.
3. Only the mother of an illegitimate child has the right to give the child in adoption. However, she cannot adopt the child herself because a giver cannot be taker at the same time.
4. If both the natural mother and father are dead, or have renounced the world, or have abandoned the child, or are of
unsound mind, a guardian, testamentary or court appointed can give a child in adoption, including to the guardian
himself, upon prior permission of the court.
5. While granting permission, the court must see the welfare of the child and the wishes of the child depending on the
child's age.
In the case of Dhanraj vs Suraj, 1981 SC held that guardian includes - de jure and de facto. Thus, a manager or secretary
of an orphanage, or the person in whose case the child is, of the person who has brought up the child can give the child in
adoption.
Section 10 describes who
