I'm a hindu divorcee and have a 6 years old daughter. I've the full guardianship of my daughter as my ex-husband does not pay any maintenance for the child. Now my marriage has been fixed with a person and he wants to adopt my daughter. In this regard, do I have to take any permission from my ex-husband regarding the adoption given that I've the full guardianship? Can I take the decision of my own as I'm the guardian of the child? Kindly advice on the situation.
Section 6 – Requisites of a valid adoption (no adaption shall be valid unless)
The person adopting has the capacity, and also the right, to take in adoption.
The person giving in adoption has the capacity to do so.
The person adopted is capable of being taken in adoption.
Under section 6 the law does not recognise an adoption by a Hindu of any person other than a Hindu (Kumar Sursen v. State of Bihar, AIR 2008 Pat 24).
To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony ( M. Gurudas v. Rasaranjan, AIR 2006 SC 3275)
Law is well settled that adoption displaces the natural line of succession and therefore, a person who seeks to displace the natural succession to the property alleging an adoption must prove the factum of adoption and its validity by placing sufficient materials on record (Suma Bewa v. Kunja Bihari Nayak, AIR 1998 Ori 29).
Section 6 does not bar a lunatic person from being adopted ( Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189).
Section 11 - valid adoption (In every adoption, the following conditions must be complied with)
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.
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 (Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, AIR 2006 Bom 123.)
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
Adoption by step-parent
The couple (step-parent and one of the biological parents) shall register in Child Adoption Resource Information and Guidance System with the required documents as mentioned in Schedule VI.
Consent of the biological parent(s) and the step-parent adopting the child or children shall be as provided in the Schedule XX (refer instructions in Schedule XX).
In case the custody of the child is under litigation, the adoption process shall be initiated only after the finalisation of the case by the court concerned.
The biological parent and the step-parent shall file an application in the Family Court or District Court or City Civil Court as the case may be, as per format given at Schedule XXXII.
The applicants shall obtain a certified copy of the adoption order from the court concerned and furnish a copy of the same online to the Authority through Child Adoption Resource Information and Guidance System.
The prospective adoptive parents, who intend to adopt the child of a relative as defined in sub-section (52) of section 2 of the Act, shall file an application in the competent court under sub-section 2 of section 56 or sub section (1) of section 60 of the Act in case of in-country relative adoption or inter-country relative adoption, respectively, alongwith a consent letter of the biological parents as provided in Schedule XIX and all other documents as provided in Schedule VI.
The biological parent and the step-parent, who intend to adopt the child or children of the biological parent, shall file the adoption application as provided in Schedule XXXII, in the court concerned of the district where they reside, along with consent letter of the biological parents and the step-parent adopting the child or children, as provided in the Schedule XX and all other documents as provided in Schedule VI.
The prospective adoptive parents, in case of inter-country relative adoption, shall file the adoption application in the court concerned of the district, where the child resides with biological parents or guardians as provided in Schedule XXXI.
The prospective adoptive parents shall file an application in Family Court or District Court or City Civil Court, as the case may be.
Before issuing an adoption order, the court shall satisfy itself of the various conditions stipulated under section 61 of the Act, and regulations 51 to 56, as the case may be.
The prospective adoptive parents shall obtain a certified copy of the adoption order from the court and furnish a copy of the same to the District Child Protection Unit for online submission to the Authority.