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Can legally separated male adopt a child

(Querist) 05 October 2014 This query is : Resolved 
Dear experts,
Can Legally separated male adopt a child if he meets all other conditions(husband & wife has no child) , have full family support is also for child.

Adv Archana Deshmukh (Expert) 06 October 2014
Yes, he can adopt without the consent of his wife if there is was valid divorce.
ChandanLawyersclub (Querist) 06 October 2014
No I am asking if only legal separation not divorce
Adv Archana Deshmukh (Expert) 06 October 2014
What's legal separation? Do you mean to say a decree of judicial separation?
ChandanLawyersclub (Querist) 06 October 2014
Yes judicial seperation only I am asking
Advocate. Arunagiri (Expert) 06 October 2014
No he can not adopt without the consent of the wife, because the divorce case is pending.
Rajendra K Goyal (Expert) 06 October 2014
Academic query.
ChandanLawyersclub (Querist) 06 October 2014
Dear Sir,
this is not academic query, its actual problem
I have read some of adoption rules in India in many web sites
as one given below

pl. read below lines..

Divorce or legal separation decree in case of single PAP(if applicable)

Legal Separation: Legal separation is very much like a divorce. The court rules on various issues such as division of property, separate maintenance, child custody and visitation rights, but does not end the marriage. A divorce might be the next step, but a legal separation at least gives the couple an opportunity to continue their marriage.

Legal Separation Vs. Divorce

Now that we know what is a legal separation, let us understand the advantages and disadvantages of legal separation vs. divorce.

In a legal separation, a health insurance coverage continues uninterrupted. A divorce ends the health insurance coverage of a spouse and they are forced to pay a higher premium to retain the insurance.
A legal separation does not end a marriage in the eyes of law. Therefore, after 10 years of marriage, the spouse is applicable for certain social security benefits, and here again a legal separation is fruitful.
A legal separation is also a considered as a 'softer' option to divorce. A divorce is viewed as a more extreme step and may not be taken by several couples for religious and personal reasons.
A legal separation may still end in a divorce, but it gives the marriage a chance, and the couple to get back together.
The only disadvantage to a legal separation is that bigamy is not permitted in india, and hence a partner in a legally-separated marriage cannot marry someone else.
So this was all about legal separation vs. divorce. Separation or divorce, either way it is quite an extreme step and leaves behind a trail of broken hearts. One need not always take such a harsh decision. Sometimes all you might need is some marriage counseling, mutual communication or a slight personality correction. Is that too much to give for the person you love?

I am married from last 12 years no child, my wife has some medical issue, she do not wants child/adopt/ take ART medical help. I feel directionless without child since beginning I have planned, I have tried best to convince her but all in vain, due to this matrimonial dispute reached to court. I have offered huge compensation to my wife to agree for MCD , that also she has declined. It seems divorce will take 7-8 years the way number of cases are pending in courts, since she wants to drag it. By the time I will be 48 years. Upper limit to adopt a child is 45 yrs for a single. I am going to request for legal separation to judge if law permits me to adopt.

a. Can i adopt a child if Legal Separated ?

b.I got a surrogate as well egg donor also, If a have my own child by single/ legal separation status affidavit, what can be legal implications for me for signing single/ separated affidavit . I have full family(from my sister in laws/my mom/ Infact her parents, since she has deprived them also from becoming grand parents) and financial support to raise a child till he settles.

malipeddi jaggarao (Expert) 09 October 2014
Very difficult to give you proper guidance.

Only analysis can be made using our intelligence. Though you have enumerated the difference between divorce and judicial separation, the following points also to be additionally taken into.

Divorce is the dissolution of marriage and it brings to an end of marital rights and obligations between the parties but in Judicial separation rights and obligations of the parties to marriage are Suspended Temporarily martial relationship between the parties does not come to end.
In case of Divorce ,the parties can remarry after a period of appeal has passed but in case of Judicial separation the parties can NOT marry unless a decree of divorce is obtain as provided in Sec 13 of HMA.
If the parties resort the cohabitation during the course of divorce there would be no effect on a decree of divorce but in Judicial Separation if the same happens the decree would be Neutralised.

"Rights of the spouse are suspended temporarily but the marital relationship does not come to an end" in case of judicial separation.

It is the right of the spouse to give consent or not for adoption proposed by the counter-part. This right is temporarily suspended. If the judicial separation culminated into divorce later, this suspended right is extinguished. But if the judicial separation ended with coming back into marital tie, the spouse can exercise this right.

As rightly pointed by you the statutes relating to Hindu adoption is not clear on this point. Basing on my above analysis you can take a chance by adopting a boy/girl or go for surrogate child, thinking that your marriage will see the light of divorce at a later date. If it is not, the wife will be coming back into marital willingly and she may not exercise her right against your adoption during the suspended period, more so because she is not capable of begetting children.

However, invite senior experts by sending Private Messages to attend this thread as some of them might not have read your thread due to paucity of time etc. One thing is certain - she can not make any objection during the period of judicial separation as her right is under suspension. That is my view. All the best to you.
ChandanLawyersclub (Querist) 09 October 2014
thank you,
My wife is not going to have any child due to this situation arrived, should not be any problem for me. Infact her parents has asked me to go ahead.

I have full family support to grow the child and saved sufficient saving for child. Mean while it will send URL other experts also.
T. Kalaiselvan, Advocate (Expert) 10 October 2014
Expert Mr. Jagga Rao has brought to light some valid points but certain points are disagreeable. In any case, see if it is possible to adopt the child legally.
malipeddi jaggarao (Expert) 10 October 2014
@Expert Shri Kalaiselvan. Thanks for your appreciation. At the same for my academic interest, please elaborate the disagreable points in my reply so that I will also review thoroughly and correct myself.

As it is a very difficult query and at the same it has to be attended looking into the genuine problem of the person posed the query, I gave the above advice after having deep thought on the issue. I am ready to correct myself if there is any wrong. Thank you sir.

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