whether a hindu can adopt muslim boy


[1] whether a hindu can adopt a muslim boy aged 7 years.   what is the procedure to be followed.

[2] here grand mother wants to adopt her grand son[muslim], whose mother married a muslim man and converted as muslim from hindu  what is the procedure.

please advise me  with relevant caselaws if any

 
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Advocate

ADOPTION AMONG HINDUS
 

The Hindu Adoptions Act covers adoption among the Hindus, and after the coming of this Act all adoptions can be made in accordance with this Act. It came into effect from 21st December 1956. Prior to this Act only a male could be adopted, but the Act makes a provision that a female may also be adopted. This Act extends to the whole of India except the state of Jammu and Kashmir. It applies to Hindus, Buddhists, Jains and Sikhs and to any other person who is not a Muslim, Christian, Parsi or Jew by religion.

REQUIREMENTS FOR A VALID ADOPTION

No adoption is valid unless

  • The person adopting is lawfully capable of taking in adoption.

  • The person giving in adoption is lawfully capable of giving in adoption.

  • The person adopted is lawfully capable of being taken in adoption.

  • The adoption is completed by an actual giving and taking and after the ceremony called Datta Homan (oblation to the fire) has been performed. However this may not be essential in all cases as to the validity of adoption.

WHO MAY ADOPT

CAPACITY OF MALE

Any male Hindu, who is of sound mind and is not a minor, has the capacity to take a son or daughter in adoption. Provided that if he has a wife living, he shall not adopt except with the consent of his wife, unless his 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. 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 one of them is unnecessary for any of the reasons specified in the preceding provision.

CAPACITY OF FEMALE

Any female Hindu

  • Who is of sound mind

  • Who is not a minor, and

  • 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.

Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife.

THE PERSON GIVING A CHILD IN ADOPTION HAS THE CAPACITY/RIGHT TO DO SO:

  • No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption.

  • The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except 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.

  • 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.

  • 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 unknown - the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and due consideration will be given to the wishes of the child having regard for the age and understanding of the child.

The court shall be satisfied that no payment or reward in consideration of the adoption except as the court may sanction has been given or taken.

THE PERSON CAN BE ADOPTED

No person can be adopted unless

  • He or she is a Hindu;

  • He or she has not already been adopted;

  • 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;

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

OTHER CONDITIONS FOR A VALID ADOPTION ARE FULFILLED

  • If the 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 living at the time of adoption.
  • 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 living at the time of adoption;
  • If the adoption is by a male and the person to be adopted is a male, the adoptive father is at least twenty one years older than the person to be adopted;
  • If the adoption is by a female and the person to be adopted is a male, the adoptive mother s at least twenty one years older than the person to be adopted;
  • Two or more parents may not adopt the same child simultaneously; the child to be adopted must be actually given and taken in adoption with intent to transfer the child from the family of birth.

CEREMONIES RELATING TO ADOPTION

The ceremonies relating to adoption are

  1. The physical act of giving and receiving, with the intent to transfer the person being adopted from one family into another.
  2. The Datta Homan, that is, oblations of clarified butter to the fire and
  3. Other minor ceremonies, such as putresti jag (sacrifice for male issue)

The physical act of giving and receiving is essential to the validity of an adoption

Datta homan and other ceremonies are not necessary as to the validity of an adoption.

EFFECT OF ADOPTION

  • An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption.
    However any property, which vested in, the adopted child shall continue to vest in such person subject to the obligations if any attached to the ownership of such property including the obligation to maintain relatives in the family of his or her birth.
  • Similarly the adopted child shall not divest a person of any estate, which vested in him or her before adoption.
  • Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivo or will.

The personal laws of Muslims, Christian, Parsis and Jews in India do not contain any provision of adoption. However these persons can adopt the children from orphanage by obtaining permission from the court under the Guardians and Wards Act.

SON BORN AFTER ADOPTION

Where a son is born after adoption to the adoptive father,

(a) The adopted son does not, on a partition between him and the after-born natural son, share equally with him, as he would have if he were a natural son, but he takes-

  • In Bengal, one third of the adoptive father's estate;
  • In Benaras, one fourth of the estate and
  • In Bombay and madras states, one fifth of the estate and

(b) If the estate is impartible, the natural son alone succeeds to it.

REGISTRATION

The adoption deed is not to be registered (except in Uttar Pradesh).

Except where it declares or reserves an interest worth Rs. 100 or more for a third person in an immovable property.

However authority to adopt is to be registered under section 17(3), Indian Registration Act.

ADOPTION AMONG MUSLIMS

Adoption is the transplantation of a son from the family in which he is born, into another family by gift made by his natural parents to his adopting parents.

Islam does not recognise adoption. In Mohammed Allahdad Khan v. Mohammad Ismail it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System.

Acknowledgement of paternity under Muslim Law is the nearest approach to adoption. The material difference between the two can be stated that in adoption, the adoptee is the known son of another person, while one of the essentials of acknowledgement is that the acknowledge must not be known son of another.

However an adoption can take place from an orphanage by obtaining permission from the court under Guardians and wards act.

ADOPTION AMONG CHISTIANS, PARSIS & JEWS

The personal laws of these communities also do not recognize adoption and here too an adoption can take place from an orphanage by obtaining permission from the court under Guardians and wards act.
 
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Advocate/ Asst. Manager(Legal)

Dear Sir,

kindly explain the age diffrence between the person who want to or going to adopt and the child who is going to be adopted


Total likes : 1 times

 
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thank u Mr. vishal for giving the lengthy information- is there any procedure contemplated for adopting muslim boy aged 7 years by a hindu lady aged 60 years

 
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Advocate

In my opinion your client needs to adopt the child on cort orders under the Wards Act

 
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Advocate

there is a specific procedure.

a muslim child can b adopted by the lady, if she has got no issue alive.

process is simple, one Hawan Ceremany, in which the parents will give the child to the lady, in her lap.

and registretion of adoption deed on the next day. but the adoption deed must b in proper formate, expaling all the valid conditions of adoption, like age, no issue of same gender, permission of spouce, permission of doner family. etc.

 
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