Adoption of a person who is already married
sreedhar musipetla
(Querist) 07 August 2016
This query is : Resolved
Natural elder sister is blessed with three sons and all are married. younger sister is not having any issues. On the request of younger sister, the elder sister has agreed to give one of her son in adoption. Is it legally valid? What rights the adopted person acquires? Can he succeed to her estate as an adopted son?
Kumar Doab
(Expert) 07 August 2016
It is believed that you are Hindu.
A male gets married after attaining adulthood i.e the son to be adopted is >15 years of age.
In that case he can not be adopted.
Guest
(Expert) 07 August 2016
Dear Mr. Sreedhar Musipeta,
As per your profile, you are also an advocate. I really wonder at the nature of your question, as if you are not a lawyer and totally ignorant about law.
Kumar Doab
(Expert) 07 August 2016
Is there any custom or usage applicable to you that you can establish?
Central Government Act
Section 10 in The Hindu Adoptions and Maintenance Act, 1956
(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.
https://indiankanoon.org/doc/1737382/
Kumar Doab
(Expert) 07 August 2016
The apex court has made a description:
Supreme Court of India
Dhanraj vs Smt. Suraj Bai
https://indiankanoon.org/doc/1021556/
Kumar Doab
(Expert) 07 August 2016
'When a custom has been repeatedly recognized by courts, it is blended into the law of land and proof of the same would become unnecessary under Section 57 of Evidence Act. '
'he ordinary rule is that all customs general or otherwise have to be proved, but u/s. 57 of the Evidence Act, 1872 nothing need to be proved of which the court can take judicial notice.'
Kumar Doab
(Expert) 07 August 2016
Sir,
The following from apex court is relevant.
Supreme Court of India
Atluri Brahmanandam (D) Thr.Lrs vs Anne Sai Bapuji on 18 November, 2010
https://indiankanoon.org/doc/663319/
3......................One of the contentions which was raised in the suit was that the respondent/plaintiff was the adopted son of Late Anne Seetharamaiah and if the findings are in the affirmative, in that event, he would be entitled to claim for recovery of possession of the scheduled land..
6. The appellant herein who was the defendant denied that the respondent is the adopted son of Late Seetharamaiah.
7. The main issue, therefore, in the present appeal on which extensive argument was made is as to whether or not the respondent was the adopted son of Late Anne Seetharamaiah. In the plaint filed, the respondent claimed himself to be the adopted son of Late Seetharamaiah. During the trial of the suit, the appellant also relied upon and proved Ex. A-8. Relying heavily on the said document, it was contended by the respondent that in terms of the said document, the respondent should be held to be the legally and validly adopted son of Anne Seetharamaiah.
8........................two contentions were mainly urged before us by the learned counsel appearing for the appellant. According to him, there was no adoption of the respondent by the adoptive father as alleged and secondly, since the respondent was more than 15 years of age on the date of the alleged adoption, he could not have been validly adopted without proving any customs in favour of such adoption.
9.................The recital in the said deed of adoption is that the natural parents of the respondent had given the respondent aged about 18 years and unmarried on the said date in the presence of elders and in accordance with the provisions of the Hindu Adoptions and Maintenance Act, 1956 to Anne Seetharamaiah, who was issueless and, hence, the adoption. It also recited that the aforesaid adoption is in accordance with the customs prevailing in the "Kamma" community in Andha Pradesh.
16. The aforesaid decision is squarely applicable to the facts and circumstances of the present case. The Andhra Pradesh High Court has recognized such a custom among the "Kamma" community of Andhra Pradesh of taking in adoption of a person even above the age of 15 years of age and has held the same to be legal and valid.
17. In view of the above discussion, we find no infirmity at all in the findings of the trial court which were affirmed by the High Court that the adoption of the respondent by Late Anne Seetharamaiah is legal and valid. We, therefore, find no merit in this appeal which is dismissed but we leave the parties to bear their own costs.
adv.bharat @ PUNE
(Expert) 07 August 2016
Please refer the below mentioned
The apex court has made a description:
Supreme Court of India
Dhanraj vs Smt. Suraj Bai
https://indiankanoon.org/doc/1021556/
Ms.Usha Kapoor
(Expert) 08 August 2016
Dear Client,
Why older sister's son who is married who must have been more than 20 years old. Moreover his parents have to terminate all parental rights after giving the child in adoption.Advise your second sister to adopt some one who is 1 or two years old including an orphan. But before going for adoption the following approval must be taken.
– Register for adoption with either an Adoption Coordinating Agency (ACA) found in each state’s capital city, or an agency certified by the Central Adoption Resource Authority (CARA) in New Delhi. CARA is a division of the Ministry of Women and Child Developmental Rights with him after he is adopted. Regarding succession to adoptive parents property under Hindu Adoption and Maintenance Act the adopted son will succeed to his adopted parents as well as his biological parents property. In order to call it a valid adoption both your older sister's husband and your sister must give and the second sister's husband who is not less than 21 years old must take after following a datta Homam.Both the combined ages of the adopted parents should not be more than 90 years. Supposing your older sister's son is 26 years old his adoption parents should not more than 64 years old.If parents are abusive the above adoption agencies try reunification process with the adopted son's biological parents. Then only your second sister's sister's turn comes to adopt. These agencies treat the adopted parents as child's guardians only until the child becomes a major so the question of succeeding to his adopting parents property is very much a doubt unlike HAMA..Muslim Law, Prsi Law Christian Law don't recognise adoption. If necessary they would adopt children from orphanages.
Ms.Usha Kapoor
(Expert) 08 August 2016
Dear Client,
Why older sister's son who is married who must have been more than 20 years old. Moreover his parents have to terminate all parental her to adopt some one who is 1 or two years old including an orphan. But before going for adoption the following approval must be taken.I don't think your custom recognises adopting someone who is more than 15 years olsd as per HAMA.
– Register for adoption with either an Adoption Coordinating Agency (ACA) found in each state’s capital city, or an agency certified by the Central Adoption Resource Authority (CARA) in New Delhi. CARA is a division of the Ministry of Women and Child Developmental Rights with him after he is adopted. Regarding succession to adoptive parents property under Hindu Adoption and Maintenance Act the adopted son will succeed to his adopted parents as well as his biological parents property. In order to call it a valid adoption both your older sister's husband and your sister must give and the second sister's husband who is not less than 21 years old must take after following a datta Homam.Both the combined ages of the adopted parents should not be more than 90 years. Supposing your older sister's son is 26 years old his adoption parents should not more than 64 years old.If parents are abusive the above adoption agencies try reunification process with the adopted son's parents. Then only your second sister's sister's turn comes to adopt. These agencies treat the adopted parents as child's guardians only until the child becomes a major so the question of succeeding to his adopting parents property is very much a doubt.Muslim Law, Prsi Law Christian Law don't recognise adoption. If necessary they would adopt children from orphanages.
Kumar Doab
(Expert) 08 August 2016
You have posted that:
"What rights the adopted person acquires? Can he succeed to her estate as an adopted son?"
Adopted son adopted by valid means/deed has right as natural son.
Ms.Usha Kapoor
(Expert) 08 August 2016
If you go by Hindu religion entirely Hindu Adoption and Maintenance Act is applicable no CARA/ACA approval is required. BUT FOR GENERAL ADOPTION FOR OTHER RELIGIONS Muslim, christian, Parsi etc or inter country , Inter religious ADOPTION IN India THESE AGENCIES APPROVAL IS REQUIRED.Permission from ACA of the concerned State or Central Adoption Resource Authority permission is required.CARA is attached to Central Ministry of women and Child Welfare.
Sudhir Kumar, Advocate
(Expert) 09 August 2016
CARA has no mandate to legalise and illegal adoption i.e. adoption of married person and adoption of person 15(+).
Dr J C Vashista
(Expert) 09 August 2016
Although the question (not query) has been debated by experts at length and there is nothing more to add, for which this is inappropriate forum, I find it pure academic question.
Kumar Doab
(Expert) 09 August 2016
Agreed with Expert Dr. J.C. Vashista.
The author has not replied after initiating the query.
The benefit gained from this thread is that, if there is a custom then a person above 15 years of age can be adopted and such adoption shall not be illegal.The apex court has explained the custom, existence, acceptance of custom and way of adoption.
This should prevail until or unless the apex court has striked off its own judgment.
The author has not replied hence no further reply for author.
sreedhar musipetla
(Querist) 12 August 2016
I am a junior advocate. I was enquired by a person, who already took decision to adopt a married person, with an only intention to retain valuable properties within family members and to perform obsequious after demise. Thanks for your opinions, suggestions and remarks.
Kumar Doab
(Expert) 12 August 2016
The legalities have been discussed/illustrated.
Your coming back to thank the experts for contributing in thread initiated by you, is appreciated.
