Adoption of Two Children
Sunlawseeker
(Querist) 26 March 2011
This query is : Resolved
Respected Advocates !
I'm requesting your advice for the following scenario.
" Mr.A got married with Mrs.B. They got two children ( 1 male and 1 female) both are under 15 years.
Mrs.B died. Now, Mr.A married one widow.
Mrs.B's elder brother wants to adopt the above said two children.
Can anyone advice me in this regard by answering the following doubts?
1. Pls send me a copy of Adoption deed in Tamil.
2. Can UNCLE of children adopt them?
3. Any other valuable advice.
Thanking you
Regards.
V.Sundaresan
Anil Kumar-Advocate
(Expert) 27 March 2011
Dear Mr.Sundaresan
It would be always better to hire a local advocate, because you have to work on Adoption Act and have to file a Deed of Adoption before the family court or District judge.Alternatively, you may contact members of the Child welfare committee which might have been formed by the State Govt.,whose members will arrange every thing as well as they will guide you properly.If you do not found such committee, consult local UNICEF- they are also participating in such type of work.Before going any where, you must follow some basic requirement.That is - Are you married and having child. Are you still issue-less.Reason thereof.Have you obtain consent from your better half.What is your age and source of Income?For adoption of kid- their age must be with 14 years.Is father of the Children is ready to handover his children to you. What is the status of property.You may furnish more details in this regard then the adoption deed shall be drafted and mail to you.thank you and good luck.
Kirti Kar Tripathi
(Expert) 27 March 2011
Conditions of valid adoption of a child are prescribed in Sections 6 to 10 of the the Hindu Adoptions and Maintenance Act, 1956. which are produced here in below
6. Requisites of a valid adoption- No adoption shall be valid unless-
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in
this Chapter.
7. Capacity of a male Hindu to take in adoption- Any male Hindu who is of
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.
Explanation-If a person has more than one wife living at the time of adoption,
the consent of all the wives is necessary unless the consent of any one of them
is unnecessary for any of the reasons specified in the preceding proviso.
8. Capacity of a female Hindu to take in adoption- Any female Hindu-
(a) who is of sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose marriage has been dissolved or
whose husband 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,
has the capacity to take a son or daughter in adoption.
9. Persons capable of giving in adoption- (1) No person except the father
or mother or the guardian of a child shall have the capacity to give the child in
adoption.
(2) Subject to the provisions of 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 or has
been declared by a court of competent jurisdiction to be of unsound mind.
(3) The mother may give the child 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.
(4) Where both the father and mother are dead or have completely and finally
renounced the world or have abandoned the child or have been declared by a
court of competent jurisdiction to be of unsound mind or where the parentage
of the child is not known, the guardian of the child may give the child in
adoption with the previous permission of the court to any person including the
guardian himself.
(5) Before granting permission to a guardian under sub-section (4) the court
shall be satisfied that the adoption will be for the welfare of the child, due
consideration being for this purpose given to the wishes of the child having
regard to the age and understanding of the child and that the applicant for
permission has not received or agreed to receive and that no person has made
or given or agreed to make or give to the applicant any payment or reward in
consideration of the adoption except such as the court may sanction.
Explanation- For the purposes of this section-
(i) the expressions "father" and "mother" do not include an adoptive father and
an adoptive mother,
(i-a) "guardian" means aperson having the care of the person of a child or of
both his person and property and includes-
(a) a guardian appointed by will of the child's father or mother; and
(b) a guardian appointed or declared by a court; and
(ii) "court" means the city or civil court or a district court within the local limits
or whose jurisdiction the child to be adopted ordinarily resides.
10. Persons who may be adopted- No person shall be capable of being taken
in adoption unless the following conditions are fulfilled, namely-
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage
applicable to the parties which permits persons who are married being taken in
adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a
custom or usage applicable to the parties which permits persons who have
completed the age of fifteen years being taken in adoption.
11. Other conditions for a valid adoption- In every adoption, the following
conditions must be complied with:
(i) if any adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son, son's son or son's son's son
(whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or son's daughter (whether
by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty-one years older than the person to be
adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty-one years older than the person to be
adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) 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 or in the case of an abandoned child or a
child whose parentage is not known, from the place or family where it has been
brought up to the family of its adoption.
Provided that the performance of datta homan, shall not be essential to the
validity of an adoption.
From the above provisions it is evident that there is no prohibition in adopting children by the uncle provided above conditions are fulfilled. In the present case first condition is the consent of father of the children to give the children for adoption is necessary as he is natural guardian of the children secondly the uncle must not have her own children i.e. daughter and son. He any of the condition is absent the valid adoption is not possible. However, the uncle can seek custody of the children on the ground of remarriage of thee father and welfare of the children..
M V Gupta
(Expert) 27 March 2011
In short the answers to ur queries are as under:
1. You may contact local Advocate.
2. Yes. Maternal uncle can adopt his sister's children.
3. Hope the father is willing to give the children in adoption.
Sri Vijayan.A
(Expert) 27 March 2011
1. Even if I send the draft in Tamil, you cant read from your computer.
You may have to install, tamil fonts.
2.There is no bar, There was a custom that maternal uncle can become father-in-law. But the Thathu by the uncle is legal.
3. You can contact me by SRIVIJAYAN.A@GMAIL.COM with all details related
Sunlawseeker
(Querist) 29 March 2011
Thanks for your Respectful reply experts.
Thanks a lot.
