Adoption.pptx and the procedure of adopting
- 1. Adoption Dr. Kusum Joshi Indore institute of law
- 2. INTRODUTION Adoption is a way of providing new families for children who cannot be brought up by their biological parents. It is a legal procedure in which all parental responsibility is transferred to the adopters. Once an adoption has been granted, it cannot be reversed. An adopted child loses all legal ties with their birth parents and becomes a full member of the adoptive family, usually taking the family's name.
- 3. The Different Types of Adoption 1. Adopting Through an Agency 2. Adopting Independently 3. Adopting Through Identification 4. Adopting Internationally 5. Adopt as Stepparents 6. Adopting as a Same-Sex Couple 7. Relative Adoptions 8. Adult Adoptions
- 4. Adopting Through an Agency Adoption agencies are public or private agencies regulated by the state and licensed to place children with adoptive parents. Public adoption agencies typically handle children who are wards of the state, often because they've been abandoned, orphaned or abused. Private adoption agencies are often run by charities and social service organizations and typically place children who have been brought to the agency by parents or expectant parents seeking to give their child up for adoption
- 5. Adopting Independently One of the other types of adoption involves a direct arrangement between birth parents and adoptive parents, sometimes using a go- between such as a doctor or member of the clergy. Because of the delicate nature of an independent adoption, it's probably a good idea for the adoptive parents to hire an attorney to handle the paperwork. Not all state allow independent adoptions, and many states regulate them extensively, so check your state's laws before exploring this option. One variety of independent adaption is often referred to as an "open adoption", where the biological parents maintain some form of limited contact even after adoption.
- 6. Adopting Through Identification Identified adoptions are a combination of independent and agency adoptions. Usually the adoptive parents find a mother wanting to put a child up for adoption, and then both sets of parents ask an adoption agency to control the rest of the process. The advantage over a straight agency adoption is there is no "wait list" for the adoptive parents. Prospective parents can also have greater control over choosing the child they adopt, and still benefit from the counseling and professional services afforded by an agency.
- 7. Adopting Internationally Adopting internationally is the most complicated of all the different types of adoptions. To adopt a child who is a citizen of a foreign country, you must satisfy both the laws of the state you live in as well as the laws of the host country. Parents must also obtain an immigrant visa for the child.
- 8. Adopt as Stepparents A stepparent adoption is when a parent's new spouse adopts the parent's child from a different partner. The process is simple compared to traditional adoption if the birth parents both consent. If one of the parents does not consent or cannot be found, however, then an attorney will need to be involved and there is a significant amount of time and paper work involved.
- 9. Adopting as a Same-Sex Couple Whether same-sex couples can adopt varies greatly from state to state. Some states now make adoption for same-sex couples identical to straight couples, but many states still require same-sex couples to follow a different procedure in order to adopt. This is due largely because the legal relationship between same-sex couples is often different than straight couples.
- 10. Relative Adoptions Relative, or kinship adoptions as they are known in some states, occur when a child's relative steps forward to adopt the child. Typical candidates for this type of adoption are grandparents, aunts and uncles, and the typical situations for relative adoptions involve the death or incapacitation of the birth parents. The law favors relatives raising children, and accordingly the process is significantly easier than other types of adoption.
- 11. Adult Adoptions Adult adoptions are rare, but most states provide for them. Typically, there must be at least a ten year difference between the age of the parent and that of the adult being adopted, and the parties must show why it's in the best interest of the parties to allow the adoption. The primary reason why people undergo an adult adoption is to secure inheritance rights for people they have grown fond, especially when they don't have children of their own. Most states prohibit adult adoptions when caregivers are involved, in order to prevent caregivers from taking advantage of their elderly patients.
- 12. Requisites of a valid adoption No adoption shall be valid unless- (i) the person adopting has the capacity, and also the right, to take in adoption; (ii) the person giving in adoption has the capacity to do so; (iii)the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter
- 13. 7. Capacity of a male Hindu to take in adoption • Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the 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.
- 14. 8. Capacity of a female Hindu to take in adoption Any female Hindu- (a) who is of sound mind, (b) who is not a minor, and (c) 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.
- 15. 9. Persons capable of giving in adoption • Father • Mother • Guardian • Competent Court
- 16. 10. Persons who may be adopted • No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely- (i) he or she is a Hindu; (ii) he or she has not already been adopted; (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.
- 17. 11. Other conditions for a valid adoption • In every adoption, the following conditions must be complied with: (i) if any 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 (whether by legitimate blood relationship or by adoption) living at the time of adoption;
- 18. • 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; • if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
- 19. • The same child may not be adopted simultaneously by two or more persons; • 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 or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption. • Provided that the performance of datta homan, shall not be essential to the validity of an adoption.
- 20. 12. Effect of adoptions 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 the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. .
- 21. Provided that- (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption
- 22. 12. Effect of adoptions • 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 the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. Provided that- (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
- 23. 13. Right of adoptive parents to dispose of their properties- • 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 vivos or by will.
- 24. 14. Determination of adoptive mother in certain cases- (1) Where a Hindu who has a wife living adopts a child she shall be deemed to be the adoptive mother. (2) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be stepmothers. (3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the stepmother of the adopted child. (4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the stepfather of the adopted child.
- 25. 15. Valid adoption not to be cancelled No adoption which had been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.
- 26. 16. Presumption as to registered documents relating to adoption Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
- 27. 17. Prohibition of certain payments- (1) No person shall receive or agree to receive any payment or other reward in consideration of the adoption of any person, and no person shall make or give or agree to make or give to any other person any payment or reward the receipt of which is prohibited by this section. (2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment which may extend to six months, or with fine, or with both. (3) No prosecution under this section shall be instituted without the previous sanction of the State Government or an officer authorized by the State Government in this behalf.
- 28. MAINTENANCE 18. Maintenance of wife : 1. A Hindu wife shall be entitled to be maintained by her husband during her lifetime. 2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,- a. if he is guilty of desertion
- 29. 18. Maintenance of wife : b. if he has treated her with cruelty c. if he is suffering from a virulent form of leprosy; d. if he has any other wife living; e if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; f. if he has ceased to be a Hindu by conversion to another religion; g. if there is any other cause justifying her living separately. 3. A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
- 30. 19. Maintenance of widowed daughter-in-law (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in- law. Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance- (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate.
- 31. 19. Maintenance of widowed daughter-in-law (2) Any obligation under sub-section (1) shall not be enforceable if the father in law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.
- 32. 20. Maintenance of children and aged parents- (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person to maintain his or her aged or infirm parent or daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own ealnings or other property Explanation- In this section "parent" includes a childless stepmother.
- 33. 21. Dependents defined- For the purposes of this Chapter "dependents" mean the following relatives of the deceased- (i) his or her father; (ii) his or her mother; (iii) his widow, so long as she does not remarry; (iv) his or her son or the son of his predeceased son or the son of a predeceased son of his predeceased son, so long as he is a minor; provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father's or mother's estate, and in the case of a great-grandson, from the estate of his father or mother or father's father or father's mother;
- 34. 21. Dependents defined- (v) his or her unmarried daughter for the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried; provided and to the extent that she is unable to obtain maintenance, in the case of a grand daughter from her father's or mother's estate and in the case of a great- grand daughter from the estate of her father or mother or father's father or father's mother; (vi) his widowed daughter; provided and to the extent that she is unable to obtain maintenance- (a) from the estate of her husband; or (b) from her son or daughter, if any, or his or her estate; or (c) from her father-in-law or his father or the estate of either of them;
- 35. 21. Dependents defined- (vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry; provided and to the extent that she is unable to obtain maintenance from her husband's estate, or from her son or daughter, if any, or his or her estate; or in the case of a grandson's widow, also from her father-inlaw's estate; (viii) his or her minor illegitimate son, so long as he remains a minor; (xi) his or her illegitimate daughter, so long as she remains unmarried.
- 36. 22. Maintenance of dependents- (1) Subject to the provisions of sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased. (2) Where a dependent has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependent shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate. (3) The liability of each of the persons who take the estate shall be in proportion to the value of the share or part of the estate taken by him or her. (4) Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependent shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part, the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.
- 37. 23. Amount of maintenance- (1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the court shall have due regard to the consideration set out in sub-section (2) or sub-section (3), as the case maybe, so far as they are applicable. (2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to- (a) the position and status of the parties; (b) the reasonable wants of the claimant; (c) if the claimant is living separately, whether the claimant is justified in doing so; (d) the value of the claimant's property and any income derived from such property, or from the claimant's own earning or from any other source; (e) the number of persons entitled to maintenance under this Act.
- 38. 23. Amount of maintenance- (3) In determining the amount of maintenance, if any, to be awarded to a dependent under this Act, regard shall be had to- (a) the net value of the estate of the deceased after providing for the payment of his debts; (b) the provision, if any, made under a will of the deceased in respect, of the dependent; (c) the degree of relationship between the two; (d) the reasonable wants of the dependent; (e) the past relations between the dependent and the deceased; (f) the value of the property of the dependent and any income derived from such property, or from his or her earnings or from any other course; (g) the number of dependents entitled to maintenance under this Act.
- 39. 24. Claimant to maintenance should be a Hindu- No person shall be entitled to claim maintenance under this Chapter if he or she has ceased to be a Hindu by conversion to another religion.
- 40. 25. Amount of maintenance may be altered on change of circumstances. The amount of maintenance, whether fixed by a decree of court or by agreement either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.
- 41. 26. Debts to have priority- Subject to the provisions contained in Section 27 debts of every description contracted or payable by the deceased shall have priority over the claims of his dependents for maintenance under this Act..
- 42. 27. Maintenance when to be a charge- A dependent's claim for maintenance under this Act shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of court, by agreement between the dependent and the owner of the estate or portion, or otherwise.
- 43. 28. Effect of transfer of property on right or maintenance- Where a dependent has a right to receive maintenance out of an estate and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right
- 44. cases 1. Smt. Malati Roy Chowdhary vs Sudhirnath Majumdar AIR 2007 Cal (consent of wife) 2. Smt. Vijay Lakshmamma vs B.T. Shankar AIR 2001 SC 1424 (capacity of female to Adopt)
- 45. Savitaben Somabhai Bhatiya Versus State of Gujarat and Ors., 2005 • Hindu Adoptions and Maintenance Act, 1956 – Criminal Procedure Code, 1973, Section 125 – Maintenance – Estoppel – Contention that the appellant was not informed about the respondent’s earlier marriage when she married, repelled – Principle of estoppels can not be present to the service to defeat the provision of Section 125 Cr.P.C. (Para 16) • Apex Court Judgments (SC) 541 Hindu Adoptions and Maintenance Act, 1956 – Criminal Procedure Code, 1973, Section 125 – Scope – No inconsistency of Section 125 Cr.P.C and the provisions of Hindu Adoptions and Maintenance Act, 1956 – Scope of the two laws is different. (Para 9) • Hindu Adoptions and Maintenance Act, 1956 – Criminal Procedure Code, 1973, Section 125 –Maintenance – Once the right under the provisions in Section 125 Cr.P.C. is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. (Para 14)
- 46. Padmja Sharma Vs Ratan Lal Sharma, 2000(2) RCR (Civil) 590 (SC) • Hindu Adoptions and Maintenance Act, 1956 - Hindu Marriage Act, 1955 - Hindu Minority and Guardianship Act, 1956 - Hindu Succession Act, 1956 Interpretation of statutes – All the Acts are to be read in conjunction with one another and interpreted accordingly – Definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision, unless there is anything repugnant to the context. (Para 10) • Hindu Adoptions and Maintenance Act, 1956 Sections 18 and 20 – Hindu Marriage Act, 1955, Section 26 –Maintenance for children – Both the parents are employed – if the approximate salary of the husband is twice as much as that of the wife, they are bound to contribute for maintenance of their child in that proportion. (Para 11)
- 47. Karam Singh & Ors Vs Jagsir Singh & Ors., 2015 (3) RCR (Civil) 45 (P&H) • Adoption deed signed by the natural father and mother of the child and by the adopting father – It was approved by examining the scribe, the witnesses and the parents giving in adoption and was duly registered – Mere fact that it does not bear the endorsement of the natural father at the time of registration, does not raise any suspicion as to its execution or as to its legality (Para 14) • Presumption of validity – An adoption deed comes into effect the moment it is signed or thumb marked by the natural parent and the adopting parent – The only consequence of non registration or a defective registration is that the presumption of truth, raised under Section 16 of the Act shall not arise – Adoption deed shall have to be proved like any other ordinary fact or document.
- 48. Anita Thaukral v. Shri Satbir Singh Tkukral. • In the aforementioned case, the wife had some source of income and also had an apartment in a good location but, she was unable to make enough money to cover up her medical expenses.
- 49. Mst. Samu Bai & anr v. Shahji Magan Lal, • The High Court of Andhra Pradesh held that: The maintenance to aged and infirm parents must only be provided if the parents have no means to sustain themselves, or are unable to maintain themselves out of their own property or earnings. So, we can infer that if the old parents have enough means to maintain themselves, the obligation of children to maintain them can be relaxed.
- 50. Kare More Sharabanna Rudrappa & ors. v. Basamma & or • A person’s wife and children who are entitled to be maintained out of his property must be paid maintenance by making a charge over his property that he possesses, and • Out of those properties that have been transferred gratuitously in order to avoid responsibilities.
- 51. Gangubai Bhagwan Kolhe v. Bhagwan Bandu Kolhe • If a wife is entitled to maintenance she can recover it from her husband’s estate even after his death. • It was further held that if the husband’s estate is enough to maintain herself then a charge can not be made over that property, but if it is not enough, then it is necessary to keep a charge in order to recover her maintenance. • As judicial precedent has the power to supersede the legislation, maintenance can be a charge with or without any agreement or will of the deceased.
- 52. Binda Prasad Singh v. Mundrika Devi The High Court of Patna observed that there was no set procedure mentioned in Section 25 as to how the amount can be altered. • The court stated that: • The amount of maintenance is fixed either by an agreement or by way of a decree. • The only way to alter an agreement is by way of another agreement, and the decree can be altered by amendment of degree. • So, another suit must be filed for altering the amount of maintenance and a new decree that supersedes the older one must be granted if the court thinks fit.
- 53. Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors • the High Court of Calcutta stated that a void adoption will not create any rights in the adoptive family for anyone that could have been obtained from a valid adoption, nor any existing rights will end in the child’s biological family
- 54. Bhola & ors v. Ramlal & ors • the plaintiff had two wives and the validity of adoption was in question as he had not taken the consent of one of his wives before adopting.