Adoption of a child

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Question asked on: 02/08/2016

A Hindu widow is having a daughter aged 15. She remarries. Whether she can give in adoption of her above said daughter born through her first husband to his second husband. What are all the conditions? Please say the relevent provisions, authorities. (The parties are Hindus, in country adoption).

Advised by: Shivendra Pratap Singh,

Widow’s right to adoption (either giving or taking) is governed by the Hindu adoptions and maintenance act 1956 (hereinafter said the Act). According to  section 5 (1) of the Act which lays down :

“No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

According to section 9(3) of the Hindu adoptions and maintenance act 1956, a mother may give the child (you should read as daughter) 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.

A mother can give her child in adoption even if father, before his death expressed himself categorically that his child should not be given in adoption.

According to section 11 (vi) of the said act “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 to the family of its adoption.”

In Sitabai & Anr vs Ram Chandra AIR 1970 Supreme Court; it is held by the Supreme Court that if father has died at the time of adoption his mother has absolute right to give her child in adoption.

In Teesta Chattoraj vs Union Of India AIR 2012 Del, it is held by the Delhi High Court that the law is very clear that right to give child in adoption cannot be exercised by either of the parents of the child “save with the consent of the other, unless one of them has died or has deliberately 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.”

The judgment of Sitabai vs Ramchandar is reiterated by the High Courts in Saluja Mukesh Kumar vs Union Of India And Another AIR 2013 P&H; Mrs.B.S.Deepa vs The Regional Passport Officer AIR 2015 Mad;

These necessary requirements which must be followed by the parties in giving a child in adoption:

  • Child must be a Hindu.
  • Two persons cannot adopt one child.
  • Child must below the age of 15 years unless customs prevailing in the family permits the adoption of a child of more than 15 years. 
  • Difference of age between child and adoptive father must be more than 21 years.

In Kartar Singh vs Surjan Singh (AIR 1974 SC 2161) the Supreme Court has held that the ceremony of giving or taking a child in adoption is indispensable in modern Hindu law.

In your case your wife can give her child in adoption. A person cannot adopt his own child. The word “father” does not include adoptive father and step father. You are the step father for her daughter so you can take her daughter in adoption.

Such adoption will be valid. However no ceremony is necessary but you should execute a deed and get its registration. This deed is relevant evidence and a  admissible proof of genuineness of adoption.

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Shivendra Pratap Singh

Advocate, Lucknow

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