Adoption, succession
Aaarrvveee
(Querist) 07 February 2017
This query is : Resolved
"A", a Hindu and "B", a Christian married under Special Marriage Act, 1954.
"A", proposed to adopt a girl child "C" one year old, who was his own sister’s daughter and she was already having two daughters and "B" reluctantly agreed for it.
post-adoption, B was very much particular that they should have a child of their own genes. Couple planned to have a child through surrogacy. "D" Boy child was born
A, died in an accident.
Grandfather filed a suit on behalf of his grand-daughter,"C" , for a share in "A" property in the District Court and for a declaration that D is not entitled to any share in his father’s property as he is neither the natural or adopted son of "A".
The court held that there was a valid adoption and the adopted child, "C", would be entitled to a share in A’s property as
"A" was entitled to adopt as per Hindu Adoptions and Maintenance Act, 1956 and his Christian wife’s consent was irrelevant as per proviso to S.7 of the said Act.
We have to file an appeal, challenging the validity of adoption.
As marriage was performed under Special Marriage Act, 1954, Whether "A" had right of adoption under HAMA.
Whether the consent of "Wife" necessary?
there is no adoption deed.
Whether "D" born through surrogacy has the same rights available to a natural born child.
As marriage was performed under Special Marriage Act, 1954 the succession will be under Indian Succession Act as per sec 21.
As Indian Succession Act, recognize consanguinity, whether adopted child has any right in the property?
Any relevant citations will be helpful.
Thanks in advance.
Adv. Yogen Kakade
(Expert) 08 February 2017
The adopted child has right over the property just as a natural child and even a child born out of surrogacy also has every right over the property.
But as you mentioned that the adoption deed has not been executed, the details of the case need to be seen.
P. Venu
(Expert) 08 February 2017
How are ou concerned with issue?
Rajendra K Goyal
(Expert) 08 February 2017
Full case details / material facts/ related documents / case file and court decision need to be referred, nothing fruitful can be advised in the given situation.
May discuss with local lawyer.
How are you concerned?
Kumar Doab
(Expert) 09 February 2017
The husband had right to follow his religion and adoption has been held valid.
Apparently NO fault is found by court with adoption.
You must have also looked into;
Hindu Adoption and Maintenance Act 1956
Section 7: Any Hindu male who has attained the age of majority and who is of sound mind can adopt. If he is married, he must take consent from his wife.
Section 9: Only the natural father has the right to give a legitimate child in adoption. However, the father must get consent from the natural mother
Section 10: The child must be less than 15 yrs of age. However, if a custom to the contrary exists, such an adoption may take place.
Section 11 :If a male child is being adopted, the person who is adopting must not already have a son, son's son, or son's son, whether natural or adopted. …………….The actual giving and taking of the child must happen. Only mere intention of giving and taking is not enough. The child must be transferred from the home of the natural parents, or in case of orphans, from the place he grew up, to the adoptive parent's home. The ritual or ceremony of Dattak homam is not necessary.
Section 12 : an adopted child is deemed to be a natural child of his adopted parents for all purposes. All relations with the natural parents and family are severed and new relationships with the adopted parents are established. …………………………………the adopted child is not divested of his property that has vested in him before adoption and that an adopted child cannot divest anybody of his vested property after adoption.
Kumar Doab
(Expert) 09 February 2017
Surrogacy; Agreeing with Mr. Yogen Kakade.
On the concerned date it could have been valid.
Kumar Doab
(Expert) 09 February 2017
Succession: Your understanding seems to be correct.
Kumar Doab
(Expert) 09 February 2017
Some citations have been sent to you.
You may relate.
Kumar Doab
(Expert) 09 February 2017
You are at liberty, to share the inputs provided by me with anyone except;
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http://www.lawyersclubindia.com/profile.asp?member_id=60926
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Kumar Doab
(Expert) 09 February 2017
You may point out errors if any including spelling errros.
Aaarrvveee
(Querist) 09 February 2017
Thanks everyone for the assistance.
Regards,
RV
Kumar Doab
(Expert) 09 February 2017
You are welcome.
