Legal Advice

Stepmother adopted a son when she already has a biological son

Question: Father died. Mother got second marriage they adopted her child. In this situation who is father of the child? Who is the grandfather of child?

Advise

Stepmother cannot adopt a son when she already has a biological son from her deceased husband. In the past, females were restricted from adopting without the consent of their husbands. Unmarried or widowed women faced even more limitations in adoption. However, with the passage of time and a shift in societal perspectives, personal laws have undergone changes. This transformation is codified in ‘The Hindu Adoptions and Maintenance Act, 1956,’ explicitly stating that females are now allowed to adopt children, provided they are of sound mind and not minors. This right has also been extended to widows.

According to section 8 of the Hindu Adoptions and Maintenance Act, 1956: 

Any mentally sound adult female Hindu, not being a minor, possesses the capability to adopt a son or daughter. However, if she has a living husband, she may only adopt with his consent, unless the husband has completely and definitively renounced the world, ceased to be a Hindu, or been declared by a court of competent jurisdiction to be of unsound mind. 

According to section 12 of the Hindu Adoptions and Maintenance Act, 1956:

From the date of adoption, an adopted child shall be recognized as the child of the adoptive father or mother for all legal intents and purposes. Consequently, all familial ties of the child in their birth family shall be considered severed and replaced by the new ties established within the adoptive family.

According to Section 11 of the Hindu Adoptions and Maintenance Act, 1956:

In the case of adopting a son, the adoptive father or mother must not have a living Hindu son, son’s son, or son’s son’s son (whether through legitimate blood relationship or adoption) at the time of the adoption.

In your case, if the widow has adopted a son, that adoption is illegal because it violates the provisions of Section 11. The widow has a biological son of her deceased husband. Hence, she is being a widow cannot adopt a son. However, she can adopt a daughter only. In the prevailing situation such an adoption is in violation of Section 11, therefore, it is void. 

Shivendra Pratap Singh

Advocate

High Court Lucknow