Essential Requisites of a Valid Adoption

Q. 10. Explain the essential conditions of valid adoption.

What are the essential requisites of a valid adoption? Discuss.

Discuss the provisions of Hindu Adoptions and Maintenance Act, 1956 dealing with the essential conditions of adoption. Is adoption made in contravention of the provisions of the Act valid? Examine.

Ans. Essentials or requisites of valid adoption [Sections 6 & 11] [Legitimate Adoption]

Section 6 of the Hindu Adoptions and Maintenance Act, 1956 provides that 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;

1. Capacity of a male Hindu to take in adoption [Section 7, Hindu Adoptions and Maintenance Act, 1956]

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. But if the male Hindu has a wife living at the time of adoption, he shall not adopt except with the consent of his wife. But the consent of the wife of a male Hindu is not necessary in the following three conditions

(i) the wife has completely and finally renounced the world, or

(ii) the wife has ceased to be Hindu, or

(iii) the wife has been declared by a Court of competent jurisdiction to be of unsound mind.

If a man has more than one wife living at the time of adoption, the consent of all the wives must be obtained. But if any of them is suffering from any of the three disabilities, the consent of such wife who is under such disability may be dispensed with and the consent of all other wives may be taken.

The Act has given two qualifications for a male Hindu to be capable to take a child in adoption i.e., the person must be of sound mind and he must not be a minor. The adoption made by a person who is of unsound mind, at the time of adoption, is void.

The man is required to take consent of the wives or wife, before adoption. Without the consent of the wife, or wives, the adoption will be void.

2. Capacity of a female Hindu to adopt a child [Section 8, Hindu Adoptions and Maintenance Act, 1956]

Now a female has also the capacity to adopt any child. Section 8 of the Act provides that

Any female Hindu :

(a) who is of sound mind,

(b) who is not a minor, and

I) if married, whose marriage has been dissolved, or

ii) whose husband is dead or has completely and finally renounced the world or

iii) has ceased to be a Hindu or

iv) 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.

Now a woman who is of sound mind and is not minor can take child in adoption. The woman has no right to adopt, during the subsistence of the marriage, if the husband is not suffering with any of the disabilities mentioned in Section 8 of the Act. The unmarried or widow woman has also the right to take in adoption any child. A woman whose marriage has been dissolved by a decree of divorce, has also the capacity to take child in adoption.

Sound mind

In Ram Sunder v. Kali Narain, [AIR 1927 Cal. 839], it was observed that mere weakness of mind is not sufficient, what is necessary to be proved is that infirmity of mind has been such as to disable him from understanding what he was doing. In Kanhailal v. Harisingh, [AIR 1944 Nag. 232], it was held that mere loss of vigour and infirmity on account of old age is not sufficient to prove unsoundness of mind.

The person taking in adoption must not be an idiot or insane to the extent of not understanding the nature of the act and effect of it in law.

Even a person who is a lunatic or an idiot may adopt during a lucid interval during the time he is in a sound state of mind.

In Ambrish Kumar v. Hatu Prasad, [1981 HLR 781], it was held that a person who is deaf and dumb but is in a position to express himself by signs and gestures though not clearly, cannot be called a person of unsound mind.

3. Persons capable of giving in adoption [Section 9, Hindu Adoptions and Maintenance Act, 1956]

Section 9 of the Act lays down the capacity of persons, who may give the child in adoption to another. Section 9 runs as follows:

No person except the father or mother or the guardian of the child shall have the capacity to give in adoption.

(a) Capacity of the father to give in adoption.-If the father is alive, he 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 Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

(b) Capacity of the mother to give in adoption.-The mother may give the child in adoption if the father is dead or had 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.

(c) Capacity of the guardian to give in adoption-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 a child may give the child in adoption with the previous permission of the Court to any person including the guardian himself.

Before granting permission to a guardian the court shall be satisfied

(1) that the adoption will be for the welfare of the child, due consideration being given to the wishes of the child for this purpose having regard to the age and understanding of the child,

(2) that the applicant for permission has not received or agreed to receive any payment or reward in consideration of the adoption except such as the court may sanction, and

(3) 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.

The Act has given the power to give the child in adoption to the folowing persons in order of preference:

Father,

Mother,

Guardian, with the permission of the Court.

The father has a preferential right to give the child in adoption subject to the concurrence of the mother. If the father is suffering from any of the disabilities ie, is of unsound mind, or has been converted to another religion or has completely and finally renounced the world then the mother has the right to give the child in adoption.

The guardian may give the child in adoption with the prior permission of the Court. The Court will consider the welfare of the child and the fact that no reward is given or taken for the adoption of the child, before granting permission to give in adoption of the child. If he will not go in the better place than what he had already been living, the Court may refuse to grant permission.

4. Who can be adopted

[Section 10, Hindu Adoptions and Maintenance Act, 1956] The following conditions should be fulfilled, before a person shall be capable of being taken in adoption

1. He should be a Hindu,

2. He or she has not already been adopted;

3. He or she has not been married, unless there is a custom or usage applicable to the parties which permit who are married being taken in adoption;

4. 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.

It is to be noted here that according to the Judgment of Delhi High - Court in Surajmal v. Babulal, AIR 1985 Delhi 95 adoption amongst Jains is a secular institution and it is meant to secure a heir and perpetuate the adopter's name.

So far the age and marriage is concerned it is no bar amongst them. A Jain of any age and even married one can be validly taken in adoption.

A married man having children of his own may be adopted and it was not necessary that he must be younger than the adoptive father's widow adopting him.

In Rakhi v. 1st Addl. District Judge, [AIR 2000 All. 166], it was observed that a person aged about 28 years can never be adopted. Sec. 10(iv) of the Act prescribed the age at 15 years. Such adoption is to follow the prescribed procedure for the adoption namely, actual giving and taking in adoption as prescribed in Sec. 11(vi) of the Act.

In Maya Ram v. Jainarian, [AIR 1989 P & H 203], it was held that the adoption of a married Jat boy who was above 15 years of age, as valid on the force of customs prevailing in that community.

In Moolchand v. Amrit Bai, [1976 HLR 681], where the parties belonged to the Gujarati Mochi Community governed by the Bombay School and a boy over 15 years of age was adopted it was held the adoption was valid.

In Veeran Maheshwari v. Girish Chandra, [AIR 1986 All. 54], the Court held that where a child of above 15 years of age has been taken into adoption, in absence of any true custom to the effect such adoption cannot be upheld even if the other party has not challenged the validity of the adoption. The Court itself can declare such adoption to be invalid.

Where a custom or usage permits adoption of a child more than 15 years or of a married person, such custom or usage must prevail not only in the family giving the child but also in the family taking the child in adoption as the section says that the custom must be applicable to the 'parties'. Otherwise, the adoption would become invalid.

In Khazan Singh v. Union of India, [AIR 1980 Del. 60], where the adopted child originally belonged to the higher caste, but on adoption was to one belonging to the Scheduled Tribe and Scheduled Tribe Certificate was granted to him on the basis of adoption and it was held that the certificate could not be cancelled without giving opportunity to the adoptee to prove that adoption was valid in spite of the bar of age.

Other conditions for valid adoption which are mentioned in Section 11 of the Act are:

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 sons'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 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 of 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.

One of the conditions for a valid adoption is that the child taken/ given in adoption should not have completed the age of 15 years unless there is a custom or usage applicable to the parties which permits such an adoption [Sec. 10(iv)].

In Virendra Singh v Kashiram, [AIR 2004 Raj. 196 (Jaipur Bench)]. the son as per evidence, aged 22 at the time of the adoption. No factum of adoption was proved and above all, no custom allowed adoption of a child above 15. Consequently the adoption was held to be invalid.

In Lakshman Singh Kothari v. Smt. Rup Kanwar, [AIR 1961 SC 1378], it was observed that it may be noted here that transfer of adoptive boy by ceremony of giving and taking is essential though no particular form of giving and taking is prescribed.

In Smt. Chandan Bilasini by LRS. v. Allabuddin Khan, [AIR 1996 SC 59], it was held that where adoption took place by ceremony of giving and taking, it is a valid adoption.

In Devgonda v. Shamgonda, [AIR 1992 Bom. 189], it was observed that there is a presumption that the ceremony of giving and taking must have taken place and it is for the plaintiff to prove that the ceremony of giving and taking has not taken place.

In Kashi Nath v. Mahadev, [AIR 1977 Pat. 156], it was observed that adoption does not become valid merely by writing a deed with an intention to give the child in adoption, it requires the actual giving and taking of the child. In the process of giving and taking the presence of natural parents, adoptive parents and the child is necessary.

In Golak Chandra v. Pratibas, [AIR 1979 Ori. 205], In case age of the adoptive mother was 24 years whereas the age of the boy (adoptee) was 5 years and 8 months at the time of adoption. The Orissa High Court held the adoption void and ineffective. it was held that any adoption in non-compliance with the conditions of Sections 6 and 11 of the Act would be invalid. The fulfilment of these conditions is mandatory for a valid adoption. The ceremony of giving and taking is essential as it is mandatory requirement for a valid adoption.

Q 11. (b) What are the effects of adoption?

(c) Discuss the Relation Back theory on the basis of decided cases. How far this is prevalent at present?

Has the doctrine of Relation Back been abolished by the Hindu Adoption and Maintenance Act? Discuss.

Discuss the effects of adoption under the Hindu Adoptions and Maintenance Act, 1956. Has the doctrine of Relation Back been resurrected by the Supreme Court? Discuss.

Ans. Effects of Adoption. (a) Section 12 of the Hindu Adoption and Maintenance Act, 1956, deals with the effect of adoption, which runs as follows:

"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;

This section lays down that on adoption the adopted child ceases to have any right or, be subject to any liability or disability as a member of the family of his birth, but he cannot marry any person from the natural family within the prohibited degree.

The adopted child, if vested with some property of his or her family of birth, before the adoption took place, will not be divested from him and it will not go back to the family of birth, but the property vested will be liable for such encumbrances as the property may be liable to, in respect of maintenance or other charges due to members of that family of birth.

The relation back theory has been abolished by the Act, by making provision that the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

(c) Doctrine of Relation Back.-Old Hindu Law-Under the old Hindu law, a widow was authorized to adopt a son for her husband and the adopted son was deemed to be adopted on the date of the death of his late adoptive father, there should be no gap between the two events viz. the death of the husband and the actual adoption by the widow. This gap is supplied by law through a legal fiction known as 'Theory of relation back'.

The theory of Relation back applies because an adoption relates back by a legal fiction to the date of the death of his adoptive father, he being put in a position of posthumous son. The scope of the Relation back theory is quite clear. It applies only when the claim made by the adopted owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case it is the interest of the adoptive father, which the adopted son is declared entitled to take as on the date of his death. The theory on which this doctrine is based is that there should be no hiatus in the continuity of the line of the adoptive father.

The doctrine of relation back can be better understood by an illustration, say when widow, whose husband died, on 1-1-1890 adopted a son on 1-1-1944, the doption was deemed to have taken place on 1-1-1890. This fiction was applied to bridge the gap created by the issueless death of the deceased husband. Adoption bridges the gap and could be said that the deceased did not die issueless.

The principle of relation back applies only when the claim made by the adopted son relates to the estate of his adoptive father. It is the interest of the adoptive father which the adopted son is declared entitled to take on the date of his death. This principle of relation back cannot be applied when the claim made by the adopted son relates not to estate of his adoptive father but to that of a collateral. With reference to the claim with respect to a collateral, the governing principle is that inheritance can never be in abeyance and that once it devolves on a person who is the nearest heir under the law, it is therefore not liable to be divested. When succession to the properties of a person other than an adoptive father is involved the principle applicable is not the rule of relation back but the rule that inheritance once vested could be divested.

The rule was further affirmed by the Supreme Court in the case of Srinivas v. Narayan, [AIR 1954 SC 379], as follows:

"The rule that the rights of an adopted son related back to the date of the death of the adoptive father so as to enable him to take the estate in defiance of rights, acquired prior to his adoption, is based on the legal fiction, that he is in the position of posthumous son but the rule was limited in its application to cases where the claims of the adopted son related to the estate of the adoptive father."

Present Law. Under the Act the theory of Relation back has been abolished, as it is provided in the Act that the adoption will for all purposes take effect from the date of adoption is made. The adopted son will not divest any person of any estate which vested in him or her before the adoption.

However, the Supreme Court has resurrected the doctrine of Relation, Back in Sawan Ram v. Kalawati, AIR 1967 SC 1761. A died leaving his widow W, who inherited the property of her deceased husband as a limited owner before the Hindu Succession Act, 1956. In 1954 she made a gift of the inherited property to her niece D. The collaterals of A challenged the validity of gift as it was made by a limited owner without legal necessity, The trial Court decreed the suit of collaterals and held the gift to be invalid. D went in appeal. While the appeal was pending W adopted a son (S) and subsequently died. It was held that the son adopted by the widow was also the adopted son of her deceased husband and in that capacity he inherited the property of his deceased adoptive father.

In Sita Bai v. Ram Chand, AIR 1970 SC 343 the Supreme Court again held that a child adopted by the widow will be deemed to be a child not only of the widow but also of the deceased husband. Where the deceased husband was a member of the joint Hindu family and he died issueless and his widow adopted a son, the Court held that the son adopted by the widow is the adopted son of her husband also.

Bhagirath and Dulichand were brothers. They had a joint family house. Bhagirath died and his widow Sitabai lived with Dulichand. Ramachandra is the illegitimate son of Sitabai, born to her with her illicit contact with Dulichand. Later Sitabai adopted Suresh Chandra after the Hindu Adoptions and Maintenance Act came into force. Later Dulichand died. Dulichand wrote a Will according to which Ramachandra (illegitimate son) got the house, and also occupied the self-acquired land of Dulichand claiming to be his heir. Sureshchandra, the adopted child of Sitabai sued for the share in the property.

The questions of law before the Supreme Court are:

i) What is the effect of the adoption by Sitabai?

ii) Does the adopted son get affiliated to the deceased husband of Sitabai?

iii) Does the adopted son become a coparcener?

iv) Can the adopted son claim through the husband of the adoptive mother?

The Supreme Court (Ramaswamy, J.) gave the following judgment:

The adopted son Suresh Chandra acquires in the adoptive family. He becomes the son of Bhagirath (the deceased husband of Sitabai) and so a coparcener in the joint family. On the death of Dulichand, Suresh Chandra is the surviving coparcener. Dulichand's Will cannot affect the half share of Suresh Chandra in the house. So he gets one-half of the house.

As regards lands, Suresh as brother's (adopted) son is preferable to Ramachandra who is only an illegitimate son. So the lands go in their entirety by inheritance to Suresh Chandra the adopted son.

What is the necessary procedure to Adopt a Child?

Section 57 under the Juvenile Justice (Care and Protection of Children) Act tells about the eligibility of prospective adoptive parents. As per Section 57 of Juvenile Justice (Care and Protection of Children) Act, the adoptive parents should be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing hi/her a good upbringing and both partners must consent for the adoption.

1. As per the Hindu Adoption and Maintenance Act, 1956 if the party is willing to adopt a child they have to make an application to a child welfare agency. The registration of adoptive parents and child can be done by the agency certified by the Central Adoption Resource Authority in New Delhi.

2. The next step is, the registered agent will conduct an interview of the Adoptive parents in order to understand their intention behind the Adoption.

3. When the adoptive couple decides which child they want to adopt they have to file the petition under the act and the court starts the hearings.

4. Last, the court will pass a decree and the adoption is finalized.

Under The Guardianship and Wards Act, 1890 if the party is willing to adopt a child they have to file an application to the court and has to disclose their intention i.e. why they want to adopt a child. The court will give a date and on that date, a hearing will be placed. The adoptive couple tells the court about the child they want to adopt. Last, the court will pass a decree and the adoption is finalized.

The procedure for adoption of a child in India can be understood in the following steps;

Step 1 – Registration

Prospective adoptive parents need to get registered with an authorized agency. Recognised Indian Placement Agencies (RIPA) and Special Adoption Agency (SPA) are the agencies which are allowed to make such registrations in India. The prospective adoptive parents can visit the Adoption Coordination Agency in their area where the social worker will explain the process and take you through the formalities, paperwork and general preparation required for registration.

Step 2 – Home Study and Counseling

A social worker for the registration agency will make a visit to the home of the prospective adoptive parent in order to do a home study. The agency might also need the parents to attend counselling sessions in order to understand the motivation, preparation, strengths and weaknesses of the prospective parents. As per CARA regulation, the home study needs to be completed within 3 months from the date of registration.

The conclusion from the home study and counselling sessions is then reported to the honourable court.

Step 3 – Referral of the Child

The agency shall intimate the interested couple when-ever there is a child ready for adoption. The agency will share medical reports, physical examination reports and other relevant information with the couple and also allow them to spend time with the child once they are comfortable with the details shared.

Step 4 – Acceptance of the Child

Once the parents are comfortable with a child, they will have to sign a few documents pertaining to acceptance of the child.

Step 5 – Filing of Petition

All necessary documents are submitted to a lawyer who prepares a petition to be presented to the court. Once the petition is ready, the adoptive parents will have to visit the court and sign the petition in front of the court officer.

Step 6 – Pre-Adoption Foster Care

Once the petition is signed in the court, the adoptive parents can take the child to a pre-adoption foster care centre and understand the habits of the child from the nursing staff before taking the child home.

Step 7 – Court Hearing

The parents have to attend a court hearing along with the child. The hearing is held in a closed room with a judge. The judge may ask a few questions and will mention the amount which needs to be invested in the name of the child.

Step 8 – Court Order

Once the receipt of investment made is shown, the judge shall pass the adoption orders.

Step 9: Follow Up

Post completion of the adoption, the agency needs to submit follow up reports to the court on the child’s well-being. This may continue for 1-2 years.

What Documents are Required for Adopting a Child?

Following is the list of documents to be prepared for the adoption process:

· Adoption application

· 4 x 6 size photographs – 4 copies of husband and wife together

· Marriage certificate and proof of age

· Reason for adoption

· Latest HIV and Hepatitis B report of the couple

· Income certificate

· Proof of residence

· Investment details

· Reference letter from 3 people

· Any other document which may be required by the agency or the court

anandlawclasses.blogspot.com

anand law classes