District Judge interview Prep: Judicial Oversight in Adoption of Child : What Every District Judge Should Know about HAMA and JJ Act?

 Question 1

Explain the current status of the Bombay High Court’s stay order on transferring adoption cases from courts to District Magistrates. How does it impact the jurisdiction of District Judges?

Answer:

The Bombay High Court issued an interim stay in January 2023 on the transfer of adoption cases from courts to District Magistrates under the Juvenile Justice (Care and Protection of Children) Amendment Act 2021. This stay remains effective as of 2025, preserving the jurisdiction of District Judges. Adoption proceedings continue before District Courts and High Courts, ensuring that the court-centric approach and judicial oversight remain intact.

Question 2

What is the scope of jurisdiction of the District Judge under the Hindu Adoption and Maintenance Act, 1956 (HAMA) for adoption within Hindu families?

Answer:

District Judges have jurisdiction primarily in adoption cases under HAMA where court approval is mandated by Section 9(4), which includes scenarios such as death or abandonment of the child’s parents. In typical family adoptions between Hindus, no court permission is needed, and the adoption can be effected by execution of a registered adoption deed complying with statutory requirements.

Question 3

Under HAMA, when is court permission mandatory for adoption? Cite relevant sections.

Answer:

Court permission is mandatory under Section 9(4) of HAMA if:

·       Both parents are dead, or

·       Both parents have renounced the world, or

·       Both parents have abandoned the child, or

·       Both parents have been declared of unsound mind by a competent court, or

·       The parentage of the child is unknown.

These exceptions require judicial sanction to ensure child protection.

Question 4

What role does the Central Adoption Resource Authority (CARA) play in adoption proceedings, and when is its permission required?

Answer:

CARA regulates institutional adoption under the Juvenile Justice Act. CARA’s permission is compulsory for adoptions involving orphaned, abandoned, or surrendered children placed through registered adoption agencies. However, CARA does not regulate interse family adoptions under HAMA, where parties need not seek CARA permission.

Question 5

Compare the procedural and jurisdictional differences between adoption under HAMA and the Juvenile Justice (Care and Protection of Children) Act, 2015.

Answer:

·       HAMA: Minimal court intervention limited to specified cases, no CARA involvement for family adoptions, focuses on Hindu families and traditional adoptions, registered adoption deed often sufficient.

·       Juvenile Justice Act: Mandatory court adoption orders for all institutional adoptions, CARA regulation compulsory, applies to all religions, strong institutional oversight.

Question 6

Discuss the difference between adoption orders under the Juvenile Justice Act and adoption deeds under HAMA.

Answer:

Under the Juvenile Justice Act, adoption requires a mandatory court order that legally validates the adoption. Under HAMA, for most family adoptions, a registered adoption deed suffices unless Section 9(4) conditions apply, when court approval becomes necessary.

Question 7

Distinguish institutional adoption and interse family adoption with reference to legal framework and procedure.

Answer:

·       Institutional adoption: Involves orphaned or abandoned children, processed through CARA-regulated agencies and requires court orders under the Juvenile Justice Act.

·       Interse family adoption: Adoption between relatives under HAMA without mandatory CARA involvement or court orders in normal cases, emphasizing family autonomy.

Question 8

Which statute governs the adoption of a brother’s child in a Hindu family and why?

Answer:

The Hindu Adoption and Maintenance Act, 1956 governs such adoption since it falls under interse family adoption within Hindu personal law. CARA and Juvenile Justice Act provisions do not apply in this family-specific context.

Question 9

Explain the principle of harmonious construction regarding HAMA and the Juvenile Justice Act adopted by courts.

Answer:

Courts hold that HAMA and the Juvenile Justice Act must be read harmoniously without conflict. Each statute governs distinct adoption scenarios—HAMA for family adoptions and JJ Act for institutional adoptions—ensuring complementary child welfare systems without jurisdictional conflicts.

Question 10

What procedural challenges arise from the Juvenile Justice Act amendments and Bombay High Court’s judicial intervention?

Answer:

Challenges include jurisdictional confusion between courts and District Magistrates, inconsistent procedural practices, and concerns regarding judicial oversight and constitutional separation of powers. The Bombay High Court’s stay safeguards court jurisdiction, ensuring procedural clarity.

Question 11

As a District Judge, how would you adjudicate an adoption petition of a relative’s child under HAMA? What documentation is required?

Answer:

Check whether Section 9(4) applies requiring court approval. Verify statutory compliance, family relationship proof, consents, and ensure execution and registration of the adoption deed if no court order is needed.

Question 12

How does the Juvenile Justice Act extend adoption rights beyond religious boundaries compared to HAMA?

Answer:

The JJ Act applies universally to all religions and runs a secular adoption framework. HAMA applies solely to Hindus, Buddhists, Sikhs, and Jains and does not extend adoption rights beyond these communities.

Question 13

Define the age limits for adoptable children under HAMA and the Juvenile Justice Act and explain the differences.

Answer:

HAMA generally limits adoption to children under 15 years (with some customary exceptions). The Juvenile Justice Act extends eligibility to children under 18, providing a broader protective framework.

Question 14

How would you maintain procedural consistency and child welfare standards when handling adoption cases under both HAMA and the Juvenile Justice Act?

Answer:

Ensure statutory compliance per each Act. For HAMA, verify family-based procedural correctness and deed registration. For JJ Act, confirm CARA involvement and court adoption orders. Always prioritize the child's welfare and legal safeguards.

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What is distinction between procedure for adoption of child under Hindu maintenance and adoption Act and Juvenile justice Act?

Introduction

The intersection of adoption laws in India presents a complex legal landscape where two distinct statutory frameworks operate simultaneously—the Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). Recent judicial interventions, particularly the Bombay High Court's stay order on the transfer of adoption cases to District Magistrates, have brought renewed focus to the jurisdictional nuances between these parallel legal regimes. This article examines the current status of adoption procedures under both Acts, clarifying the distinct procedural pathways and jurisdictional boundaries that practitioners must navigate.

Current Status of Bombay High Court's Stay Order

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Supreme Court: The court may award maintenance to wife up to 25% of husband's income and to child 15% of husband's income

 A sum of Rs. 250/- per month for the maintenance of the wife of a person occupying the position of the appellant cannot be said to err on the liberal side. The High Court in our opinion very rightly fixed that sum making it subject to the limit of 25 per cent of the income as found by the Income-tax authorities. We have no reason to take any different view. Subject to our observation as to the determination of the income of the appellant, the appeal against the wife is dismissed with costs.

{Para 21}

22. As regards the appeal in the case of the daughter, the High Court fixed the amount of monthly maintenance at Rs. 150/- till such time as she marries but so as not to exceed 15% on the average monthly income of the father. No ground was shown as to why we should make a variation in the amount fixed in her case. We uphold the finding of the High Court in this respect. There will be one set of hearing fee.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2564 and 2589 of 1966

Decided On: 20.10.1970

Kulbhushan Kumar Vs. Raj Kumari and Ors.

Hon'ble Judges/Coram:

A.N. Ray and G.K. Mitter, JJ.

Author: G.K. Mitter, J.

Citation: 1970 INSC 225, MANU/SC/0349/1970,(1970) 3 SCC129.

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Checklist for Judges of necessary pre- requisite for passing order of adoption of child as per provisions of Hindu adoption and maintenance Act

Based on the provisions of the Hindu Adoption and Maintenance Act, 1956, here is a comprehensive checklist of prerequisites for passing an order of adoption of a child:

Legal Capacity Requirements

For Adoptive Parents (Sections 7 & 8)

Male Hindu Adoptive Parent:

·       [ ] Must be Hindu by religion

·       [ ] Must be of sound mind (not mentally ill)

·       [ ] Must not be a minor (must be of legal age)

·       [ ] If married, must have wife's consent for adoption

·       [ ] If adopting a daughter, must be at least 21 years older than the child.

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Navigating the Adoption Process in India: Legal Framework and Procedures

 Adoption in India is governed by a complex legal framework primarily consisting of the Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice (Care and Protection of Children) Act, 2015. These laws outline the eligibility criteria for both adoptive parents and children, as well as the procedural requirements for a valid adoption.

Legal Framework

Hindu Adoption and Maintenance Act, 1956 (HAMA)

- Eligibility to Adopt: Under HAMA, any male Hindu who is of sound mind and not a minor can adopt a child, provided that he has the consent of his living wife unless she has been declared incompetent by a court. Female Hindus can adopt if they are unmarried, widowed, or divorced.

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Supreme Court: Child Adopted By Widow After Death Of Govt. Employee Not Entitled To Family Pension

 It may also be appropriate to refer to the decision of this Court in Poonamal v. Union of India, MANU/SC/0359/1985 : (1985) 3 SCC 345, wherein the purpose for which 'family pension' is granted, was highlighted by this Court in the following words:

Family pension came to be conceptualised in the year 1950. When a Government servant die in harness or soon after retirement, in the traditional Indian family on the death of the only earning member, the widow or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking the widow was hardly in a position to obtain gainful employment. She suffered the most in as much as she was deprived of the companionship of the husband and also became economically orphaned. As a measure of socioeconomic justice family pension scheme was devise to help the widows tie over the crisis and till the minor children attain majority to extend them some succour. This appeared to be the underlying motivation in devising the family pension scheme. It was liberalised from time to time. {Para 12}

It is evident from the passage quoted above that family pension was devised as a means to help the dependents of the deceased government servant tide over the crisis and to extend to them some succour. Therefore, the definition of the term 'family' cannot be extended to include those persons who were not even dependents of the government servant, at the time of his death.

12.1.  In the present case, the heirs listed Under Rule 54(14)(b) of the CCS (Pension) Rules are the immediate dependents of the deceased government servant. Therefore, persons who were not dependant on the government servant prior to his death cannot be held to be included in the definition of 'family' Under Rule 54(14)(b) of the CCS (Pension) Rules.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 386 of 2023 

Decided On: 17.01.2023

Ram Shridhar Chimurkar Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

K.M. Joseph and B.V. Nagarathna, JJ.

Author: B.V. Nagarathna, J.

Citation: MANU/SC/0041/2023.

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What are essentials of valid adoption of child as per provisions of Hindu adoption and maintenance Act?

 S 6 of Hindu Adoption and maintenance Act:- 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.

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Important provisions of Hindu Adoptions and Maintenance Act, 1956 regarding adoption of child

 3. Definitions.—In this Act unless the context otherwise requires—

(c) “minor” means a person who has not completed his or her age of eighteen years.

4. Overriding effect of Act.

5. Adoptions to be regulated by this Chapter.—(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.

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Hindu Adoption and maintenance Act 1956 (maintenance provisions only)

 Chapter III

MAINTENANCE

18. Maintenance of wife.—(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, 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, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) 13[* * *]

(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.

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Whether Divorced Daughter is 'Dependent' U/S 21 Hindu Adoptions & Maintenance Act and Entitled To Maintenance From Late Father's Estate?

It is the admitted case of the parties that the appellant is the daughter of the respondent No. 2 and sister of the respondent No. 1. She as per her own averments, had got married to Mr. John Fletcher in the year 1995 and got divorced from him in the year 30.09.2001. Thus, the appellant is a divorcee. {Para 16}

17. The claim for maintenance has been made under Section 21 of HAMA which provides for the dependents who may claim maintenance.

18. It provides for 9 categories of relatives in which the “divorced

daughter” does not feature. An unmarried or widowed daughter is recognized to have a claim in the estate of the deceased, but a “divorced daughter” does not feature in the category of dependents entitled to maintenance.

19. The appellant being a divorcee has a claim for maintenance against her husband even after her divorce. The appellant being conscious of her right of maintenance against the husband, has sought to explain that since her husband is not traceable, she is unable to claim maintenance from him. However difficult situation as it may be, but under the HAMA as she is not a “dependent” as defined under the Act and thus not entitled to claim maintenance from her mother and brother.

IN THE HIGH COURT OF DELHI AT NEW DELHI

MAT.APP.(F.C.) 89/2018

MALINI CHAUDHRI  Vs RANJIT CHAUDHRI & ANR. 

CORAM:

HON'BLE MR. JUSTICE SURESH KUMAR KAIT

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

Author: NEENA BANSAL KRISHNA, J

Pronounced on: 13th September, 2023.

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Whether order passed in an inquiry under O 22 R 5 of CPC is a decree?

 In the present case, an application under Order XXII of the C.P.C. has been dismissed on the ground that the adoption deed was not executed in accordance with the Hindu Adoptions and Maintenance Act, 1956. The adjudication made by the trial court, in my opinion, does not amount to a decree as contemplated under Section 2(2) of the C.P.C. nor does it finally determine the question as to who is the legal representative of the deceased under Order XXII, Rule 5 of the C.P.C. In any case, an enquiry under Order XXII, Rule 5 of the C.P.C. is only summary in nature and is not an appealable order. The question whether a person could be permitted to be brought on the record as a legal representative of the deceased is only for the purpose of continuing with the proceedings that had already begun and any adjudication, arrived in the course of such enquiry under Order XXII, Rule 5 of the C.P.C. is not an adjudication contemplated under Section 2(2) of the C.P.C. Consequently, an order passed under Order XXII, Rule 5 of the C.P.C., being summary in nature, could not amount to a decree, as contemplated under Section 2(2) of the C.P.C. {Para 7}

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007.

Read full Judgment here: Click here

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Whether the court has jurisdiction to question registered adoption deed in collateral proceeding?

 Coming to the merits of the case, I find that the lower appellate court had rejected the application on the ground that the adoption deed executed in favour of the applicant was not validly executed under the Hindu Adoptions and Maintenance Act, 1956. In my view, the lower appellate court had no jurisdiction to go into the validity and legality of the adoption deed which was executed and registered under the Hindu Adoption and Maintenance Act, in view of the provision of Section 16 of the said Act which reads as under:

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. {Para 10}

11. The Supreme Court in the case of Mst. Deu and Anr. v. Laxmi Narayan and Ors. MANU/SC/1351/1998 : (1998)8SCC701 , held:

In view of Section 16 aforesaid 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 persons mentioned therein, the Court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. According to us, it was not open to the defendants of the said suit for partition to collaterally challenge the said registered deed of partition. In view of Section 16 of the aforesaid Act it was open to them to disprove such deed of adoption but for that they had to take independent proceeding.

12. In view of the aforesaid pronouncement of the Supreme Court, it is clear, that the lower appellate court had no Jurisdiction to question the validity and legality of a document which was registered and in view of the Section 16 of the said Act, it was open to the defendant to disapprove such deed of adoption in an independent proceedings.

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007

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Whether Unmarried daughter can claim expenses of marriage from their parents under the Hindu Adoptions & Maintenance Act?

  The maintenance is defined under Section 3(b)(ii) of the Act of 1956, as under:-

3. Definitions – In this Act, unless the context otherwise requires, –

(a) --- xx ----

(b) “Maintenance” includes----

(i) --- xx ---

(ii) In the case of an unmarried daughter, also the reasonable

expenses of and incident to her marriage.

Reading of the aforesaid Section in unambiguous term includes the

expenses for marriage. The right includes the reasonable expenses of marriage of daughter and expenses incident to her marriage. In Indian society, normally expenses are required to be incurred for pre-marriage and also at the time of marriage. Thus, the centrality of Act of 1956 gives safeguard to both. So, a right is created to claim the expenses incident to marriage and the Courts also cannot be in denial mode, when such rights are claimed by unmarried daughters. Before and during marriage, the collective rituals are required to be performed, which come at a price. Unless the proceedings are allowed to be carried out at the instance of an unmarried daughter under the Act of 1956, claiming expenses for marriage, the statutory attempt cannot be terminated at threshold. Key question of right of unmarried daughters for anticipated expenses of marriage is required to be ascertained to grant reasonable expenses. {Para 7}

HIGH COURT OF CHHATTISGARH, BILASPUR

FAM No.79 of 2016

 Rajeshwari D/o Bhunu Ram, Aged Vs  Bhunu Ram S/o Dukhit Ram, 

D.B.: Hon'ble Shri Justice Goutam Bhaduri &

Hon'ble Shri Justice Sanjay S. Agrawal

Author: Goutam Bhaduri, J.

Dated: 21/03/2022

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Whether Child Adopted By A Widow is Entitled To Inherit Her Deceased Husband's Property?

 There is decision of this Court on the subject and the said issue is covered by the decision in case of Banabai and others Vs. Wasudeo, reported in AIR 1979 Bom. 881 (At Nagpur). When there is direct Judgment of this Court, it needs to be followed in the said decision. In para No. 18, it is held as under :-

18. Thus it would be seen that the adoption takes effect only

from the date of adoption and not prior to the adoption. Under

the former law the adoption had the effect of relating the

adoption back to the date of death of the father. The adopted

son was deemed to be in existence at the time when the father

died. That fiction of relation back as a result of the adoption has

been done away with by S. 12. Further the provisions also limit

the rights of the provisions also limit the rights of the adopted

son in the new family and proviso (c) which is material and

which deals with the rights in the property as well the right of

management to which Mr Kherdekar wants me to extend the

principle as enunciated by the Supreme Court is that “the

adopted child shall not divest any person of any estate which

vested in him or her before the adoption.” In other words,

though the adopted son from the date of adoption becomes a

member of the adoptive family and acquires all the rights and

status which that person would acquire in the adopting family

with regard to the property, his right was controlled and is

subject to his incapacity to divest any person of an estate

which has already vested in him. Though, therefore, an

adopted son may have rights in future in the property which the

family may acquire after his adoption, with regard to the

property which has vested in any particular person before his

adoption, the adoption does not vest in him any rights with

regard to that property. The plain terms of S. 12 and in

particular proviso (c) clearly make it quite clear that the

adopted son, short of acquiring the right of management and

right to the property of his adoptive parents acquires all the

other rights and status of a natural born son in the family.

26. In case of Banabai (supra), the principle of relation back as a

result of the adoption has been done away with by section 12 of the Hindu Adoptions and Maintenance Act, 1956. Under the old Hindu law the adoption had the effect of relating the adoption back to the date of death of the father. The adopted son was deemed to be in existence at the time when the father died. That fiction of relation back as a result of adoption is no more available in view of Section 12 of said Act. Having regard to this

legal position, I am unable to accept the argument advanced by Mr Pakashsing Patil, learned counsel for the appellants. After coming into force of Hindu Adoptions and Maintenance Act, 1956, the child adopted by the widow of the co-parcener, does not get the status of the child of deceased co-parcener from the date of death of co-parcener. As such, adopted son/original defendant No.1 cannot claim share in the suit property, by stepping into the shoes of his late father who died long before in the year 1965. Therefore, I have recorded my finding against question No.1 in the negative.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 515 OF 2021

 Rajesh S/o. Panditrao Pawar,  Vs Parwatibai W/o. Bhimrao Bende

CORAM : SHRIKANT D. KULKARNI, J.

PRONOUNCED ON : 07.04.2022

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Whether the court can presume that wife had consented to adopt the child if she was present in the adoption ceremony?

  Learned single judge upon noticing that the

provisions of the proviso to section 7 of the 1956 Act are, in

part, pari materia to clause (c) of section 8 of the 1956 Act, by

applying the interpretation accorded to clause (c) of section 8 of

the 1956 Act by the Apex Court in Brajendra Singh’s case

(supra), held that the requirement of consent of the wife, under

the proviso to section 7 of the 1956 Act, cannot be dispensed

with where there is no dissolution of marriage even though the

wife might be estranged from her husband and staying

separate. In our considered view, the learned single judge was

right in holding that the consent of even an estranged wife for

taking in adoption would be required, if the marriage has not

been dissolved. No doubt, consent of wife would not be

required where the marriage has been dissolved or the wife has

completely 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. But, here, it has not been proved that the

marriage was dissolved. Rather, the document produced is to

the contrary. Further, there is nothing on record to suggest that

Phoolmati has completely renounced the world or has ceased

to be a Hindu or has been declared of unsound mind by any

court. Mere staying separate from one's husband may amount

to renouncing the husband but not the world. Under the

circumstances, Phoolmati's consent was required before her

husband could take in adoption.

11. Noticeably, there is no evidence brought on record

to demonstrate that consent of Phoolmati was obtained or was

there, before her husband allegedly took the appellant in

adoption. In Ghisalal v. Dhapubai, (2011) 2 SCC 298, the

Apex Court after laying emphasis on the mandatory

requirement of obtaining consent of wife before the husband

could validly take a son or a daughter in adoption, interpreted

the term consent, in paragraph 26 of the judgment, as follows:

“26. The term “consent” used in the proviso to Section 7

and the Explanation appended thereto has not been

defined in the Act. Therefore, while interpreting these

provisions, the court shall have to keep in view the legal

position obtaining before enactment of the 1956 Act, the

object of the new legislation and apply the rule of

purposive interpretation and if that is done, it would be

reasonable to say that the consent of wife envisaged in

the proviso to Section 7 should either be in writing or

reflected by an affirmative/positive act voluntarily and

willingly done by her. If the adoption by a Hindu male

becomes subject-matter of challenge before the court, the

party supporting the adoption has to adduce evidence to

prove that the same was done with the consent of his wife.

This can be done either by producing document

evidencing her consent in writing or by leading evidence to

show that wife had actively participated in the ceremonies

of adoption with an affirmative mindset to support the

action of the husband to take a son or a daughter in

adoption. The presence of wife as a spectator in the

assembly of people who gather at the place where the

ceremonies of adoption are performed cannot be treated

as her consent. In other words, the court cannot presume

the consent of wife simply because she was present at the

time of adoption. The wife's silence or lack of protest on

her part also cannot give rise to an inference that she had

consented to the adoption.”

(Emphasis supplied)

12. From the decision noticed above, the legal principle

deducible is that the party propounding an adoption by a Hindu

male, who has a living wife, has to adduce evidence to prove

that the same was done with the consent of his wife. This can

be done either by producing document evidencing her consent

in writing or by leading evidence to show that wife had actively

participated in the ceremonies of adoption with an affirmative

mindset to support the action of the husband to take a son or a

daughter in adoption. In other words, the court cannot presume

the consent of wife simply because she was present at the time

of adoption. The wife's silence or lack of protest on her part also

cannot give rise to an inference that she had consented to the

adoption.

ALLAHABAD HIGH COURT

Case :- SPECIAL APPEAL No. - 22 of 2021

Appellant :- Bhanu Pratap Singh

Respondent :- State Of U.P. And 3 Others

Coram:

Hon'ble Manoj Misra,J.

Hon'ble Rohit Ranjan Agarwal,J.

Order Date :- 22.2.2021

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Whether father can claim custody of illegitimate child?

At the very outset, it must be noted that the Petitioner himself

has come before the court with a case that the minor child was born not

out of a wedlock but out of a romantic relationship between the Petitioner

and the Respondent. In other words, it is the Petitioner's own case that the

child is an illegitimate child. If that is so, it is difficult to see how the

Petitioner, who claims to be its putative biological father, can claim the

custody of the child over the Respondent, who is admittedly its biological

mother. Under Section 6 of the Hindu Minority and Guardianship Act, by

which both parties are admittedly governed, in the case of an illegitimate

boy or an illegitimate unmarried girl, it is the mother who is the natural

guardian, and the father's claim of such guardianship comes only after

hers. There are only two exceptions to this rule. The first is that no natural

guardianship can be claimed under Section 6 if the person claiming

guardianship has ceased to be a Hindu. The second exception is where

such person has completely and finally renounced the world becoming a

hermit (vanaprastha) or an ascetic (yati or sanyasi). It is not the

Petitioner's case that the Respondent either has ceased to be a Hindu or

has renounced the world either by becoming a hermit or an ascetic. The

Respondent, thus, has an indefeasible claim to natural guardianship of her

child Omiraj. There is no case in law for the Petitioner to claim

guardianship or custody of the child over her.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO. 1 OF 2020

IN

WRIT PETITION NO. 2928 OF 2019

Dharmesh Vasantrai Shah  Vs.  Renuka Prakash Tiwari 

CORAM : S.C. GUPTE, J.

DATE : 9 JUNE 2020

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Supreme Court: No valid adoption of child without consent of wife and actual ceremony of adoption

The Appellant relied upon a judgment of this Court

in L. Debi Prasad (Dead) by Lrs. (supra) to

submit that abundant evidence submitted by her before

Court would point to the fact that she was brought up as

the daughter of the Respondent and her husband (Late)

Narasimhulu Naidu. Such evidence can be taken into

account to draw inference that she was adopted by

them. The facts in L. Debi Prasad (Dead) by Lrs.

(supra) case are similar to those in the instant case. In

that case, Shyam Behari Lal was adopted by Gopal Das

in the year 1892 when he was an infant. Shyam Behari

Lal was unable to establish the actual adoption but has

produced considerable documentary evidence to show

that he was treated as the son of Gopal Das for a

quarter of century. This Court accepted the submission

of Shyam Behari Lal and held that there was sufficient

evidence on record to infer a valid adoption. Though

the facts are similar, we are unable to apply the law laid

down in L. Debi Prasad (Dead) by Lrs. (supra) to the

instant case. L. Debi Prasad (Dead) by Lrs. (supra)

case pertains to adoption that took place in the year

1892 and we are concerned with an adoption that has

taken place after the Act of 1956 has come into force.

Though the Appellant has produced evidence to show

that she was treated as a daughter by (Late)

Narasimhulu Naidu and the Defendant, she has not

been able to establish her adoption. The mandate of

the Act of 1956 is that no adoption shall be valid unless

it has been made in compliance with the conditions

mentioned in Chapter I of the Act of 1956. The two

essential conditions i.e. the consent of the wife and the

actual ceremony of adoption have not been established.

This Court by its judgment in Ghisalal v. Dhapubai

(Dead) by Lrs. & Ors.2 held that the consent of the

wife is mandatory for proving adoption.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8814 OF 2010

M. Vanaja Vs  M. Sarla Devi

L. NAGESWARA RAO, J.

Dated:March 06, 2020.

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