hindu adoption & maintainence act
sridhar karanam
(Querist) 19 February 2009
This query is : Resolved
A client approached me for making an adoption deed. He already has three natural daughters and now he wants to adopt a son from his brother-in-law. His brother-in-law has three sons out of which two are from valid marriage and the proposed adoptive son was born before his marriage, to the same couple. Can a valid adoption deed be executed in this circumstances? Please answer as early as possible.
sanjeev murthy desai
(Expert) 19 February 2009
i think there is no issue, you can execute a adoption deed.
sanjeev desai
AEJAZ AHMED
(Expert) 19 February 2009
DEAR SRIDHAR,
Section 2 (b) of ' The Hindu Adoptions and Maintenance Act, 1956' is very Clear abot the child "Legitimate or Illegitimatee"
Section - 2 : Application of Act
(1) This Act applies-
(a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana of Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of the law in respect any of the matters dealt with herein if this Act had not been passed.
Explanation : The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina, and Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
[(bb) any child, legitimate or illegitimate who has been abandoned both by his father and mother or whose parentage is known and who in either case is brought up as a Hindu, Buddhist, Jaina or Sikh; and]
So, in you case, all the Three requirement are fulfilled:
(a)' Adoptive Child ' { Sec.2}
"Either Legitimate or Illegitimate";
(b) 'Person Capable to take adoption'{Sec.7}
" Normally any Hindu male who is of a sound mind and who himself is not a minor, has the capacity to take a son or daughter in adoption.
However, before exercising his right to adopt a son or a daughter, if the Hindu male has a wife living, then, her consent has also to be obtained for the adoption to be made and become valid ".
(c) 'Person giving adoption' {Sec.9}
" Only the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
If the father is alive, he alone shall have the right to give his child on adoption for which however, he has to take the consent of his wife "
Therefore, as per me, there is no doubt about the ' Validity ' of the required/proposed "ADOPTION DEED".
But, still your question is not clear on Two(2) points:
Sec.7 Capacity of a male Hindu to take in adoption:-
Any male Hindu who is sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
PROVIDED that, if he has a wife living, he shall not adopt " except with the consent of his wife " unless the wife 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.
Sec.9 (2) :- Subject to the provision of 1[sub-section (3) and sub-section (4)], the father, if alive, 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 a Hindu has been declared by a court of competent jurisdiction to be of unsound mind.
So, what about the "consents" of wife's from both side ?
M. PIRAVI PERUMAL
(Expert) 19 February 2009
You can go ahead and register an adoption deed.
Tribhuwan Pandey
(Expert) 19 February 2009
yes he may adopt a son and there is no question of Legitimate or Illegitimate.
sridhar karanam
(Querist) 19 February 2009
thanks to all for the valuable inputs....and aejazji, wifes from both sides are consenting in the instant case...so, i guess i can proceed further now.
Kamlesh soni
(Expert) 20 February 2009
ofcourse yar,he may adopt a son and there is no question of Legitimate or Illegitimate
ARVIND JAIN
(Expert) 20 February 2009
LEGALLY NO PROBLEM IN SUCH ADOPTION.
A. A. JOSE
(Expert) 20 February 2009
I fully endorse above viewpoints. There would not be any legal impediments in such adoption.
arunprakaash.m.
(Expert) 20 February 2009
Iftheagedifference between you and your wouldbe adopted son is more than 21 years then you can file adoption petition inthe dist court.
adv. rajeev ( rajoo )
(Expert) 20 February 2009
adoption deed can be executed because in ur case both the parties of ready to give and take. there is no problem
Hiralal Das
(Expert) 05 April 2009
I do agree with the valuable opinions of the learned members. Thanks all of you.
Sachin Bhatia
(Expert) 04 October 2009
He may adopt a son and there is no question of Legitimate or Illegitimate.
Sachin Bhatia
(Expert) 04 October 2009
Yes a valid adoption deed be executed in this circumstances.
Sachin Bhatia
(Expert) 04 October 2009
What your answer or query?
Sarvesh Kumar Sharma Advocate
(Expert) 04 October 2009
