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

t

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.  

Ask Your Question

Shivendra Pratap Singh

Advocate, Lucknow

Advice: 17493

Consultation: 3402

Residence order under domestic violence act

My husband and my in-laws are very much adamant to throw me out from the matrimonial home. I have some confrontations with my husband and in-laws because they committed extreme cruelty against me. They are very greedy and intolerable towards any resistance. My...

Mutual consent of divorce

My  husband compelled me to support his petition of mutual consent of divorce. Because of such compulsion I accepted his offer for one time settlement. he gave 4 lac for it and refused to give any amount for my treatment. He said that 4 lac is given for my treatment...

Alimony of minor child

I am 34 years old divorced Gujarati woman with 9 yrs old son. And unemployed. I am living with my parents. I got less alimony don’t have money to raise my child searching for a job right now. I can’t study further due to the age limit. My question is can my son get...

Irretrievable breakdown of marriage

Irretrievable breakdown of marriage in India especially in respect of Hindu Marriage Act.Basic Principle The No-fault divorce is a divorce in which the dissolution of a marriage does not require a showing of wrongdoing by either party. It allows a family court to...

Husband refuses to maintenance due to unemployment

If the husband is unemployed still he is bound to maintain his wife. It is the paramount duty of a husband to maintain his wife unless he is unable to earn due to his physical or mental infirmity. The wife can claim maintenance from the husband if he deliberately refuses or neglects to maintain her.

quick Advice

Get A Quick Advice

Book an appointment for 15 minutes and consult with an expert over the phone within minutes

Talk to Advocate Shivendra

Book a phone consultation for 30 minutes and get solid advice on the phone

Book it Now