Adoption is invalid if child actually not given and taken in adoption

Question asked on: 25/02/2017

Child given in adoption as per astrological advice so as to save his life. A widow of lower caste community adopted the child for the purpose of superstition that child will live long. Of course the child actually given and taken with ulterior motive.

Thereafter the child lives with his biological parents because the adoptive was illusory. The child thus claiming his right in propertyof natural family. The main contention therefore is whether it is valid under section 11(vi) of HAM 1956. There was no intention to give the child in adoption because the child has been living with biological parents. Is the adoption valid?

Advised by: Shivendra Pratap Singh,

Actual or physical giving and taking of the child is an essential requirement for a valid adoption. Section 11(vi) of the Hindu Adoption and Maintenance Act 1956 (HAM Act) makes it mandatory.

In Lakshman Singh Kothari v. Rup Kanwar, (1962) 1 SCR 477 : AIR 1961 SC 1378; the Supreme Court observed that when adoptive father puts his hand on the head of foster son so as to receive the child in adoption, therefore, he sufficiently compliances with the Hindu law doctrine of “giving and taking”.

However, under section 16 of the said act, the law presumes that adoption is valid in devoid of relevant evidence. Indeed it is a rebuttable presumption. Thus the court may reject this presumption upon production of some contrary evidence. [Modan Singh v. Sham Kaur (AIR 1973 P&H 122)].

Jai Singh vs Shakuntala, (2002) 3 SCC 634 A valid adoption requires that child must be given and taken 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 statutory provision of HAM Act had not been followed; therefore, it is invalid. The adoptive father is the sole guardian; consequently, he should live with his adoptive father.

But in your case, he has been living with his biological parents; therefore, this adoption is an act of deception in the eye of law because they not performed given and taken ceremony. The intention of the adoptive father is most important to the performance of the given and taken ceremony. If the adoptive father has no such purpose, thus he cannot claim that he is the adoptive father.

In your case, adoptive mother had no such intention instead of it; she had the intentionto follow some superstition to give life to the child. The old custom has lost in antiquity after enactment of HAM Act. The child has the right to claim his share in the property because he is still the natural child. He has the right to live with physical/biological parents because he was never given in adoption.  

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Shivendra Pratap Singh

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