Current Legal Position
A guardian appointed by the will of a child's father or mother falls within the definition of "guardian" for Section 9 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA). However, appointment under a will does not by itself authorise the guardian to give the child in adoption.
What the Court Must Consider
Section 9(5) requires the court to be satisfied that the proposed adoption is for the welfare of the child. The court must give due consideration to the wishes of the child having regard to the child's age and understanding. It must also examine whether any payment or reward has been received, agreed, made or promised in consideration of the adoption, except anything specifically sanctioned by the court.
Other HAMA Requirements to Check
- Section 6: all essential requisites of a valid adoption must be satisfied.
- Section 7 or Section 8: the proposed adoptive parent must have legal capacity to adopt.
- Section 9: the guardian must have capacity to give the child and must obtain prior court permission.
- Section 10: the child must be capable of being adopted under HAMA.
- Section 11: the applicable existing-child restrictions, opposite-sex age difference and actual giving-and-taking requirement must be satisfied.
- Section 12: a valid adoption has the statutory effects stated in that section, subject to its provisos.
- Section 16: a registered adoption document signed by the giver and taker may attract the statutory presumption, unless disproved.
- Section 17: prohibited payments or rewards in consideration of adoption must not be made or received.
Updated Adoption Deed Format
Insert the actual facts, full details of the testamentary appointment and the court's permission order. Delete clauses that do not apply.
DEED OF ADOPTION
This Deed of Adoption is made and executed on this day of , 20 at .
BETWEEN
Mr./Ms. , son/daughter of , aged about years, residing at , a Hindu by religion, hereinafter referred to as the "Adoptive Parent";
AND
Mr./Ms. , son/daughter of , residing at , being the testamentary guardian of the minor child described below, hereinafter referred to as the "Guardian".
WHEREAS
1. The child, namely , born on , is a Hindu and is capable of being adopted under Section 10 of the Hindu Adoptions and Maintenance Act, 1956.
2. The natural father, Late Mr. , and the natural mother, Late Mrs. , are deceased.
3. By Will dated executed by , the Guardian was appointed testamentary guardian of the said child. The said appointment is valid and subsisting.
4. The Guardian applied to the competent court under Section 9(4) of the Act for previous permission to give the said child in adoption to the Adoptive Parent.
5. By order dated passed in Case/Application No. , the competent court granted permission to the Guardian to give the child in adoption to the Adoptive Parent. A copy/certified copy of the order may be retained with this deed.
6. The Adoptive Parent is legally competent to take the child in adoption under Section 7 or Section 8 of the Act, as applicable.
7. [Where consent of the spouse of the Adoptive Parent is required under Section
7 or Section 8:] Mr./Mrs. , spouse of the Adoptive
Parent, has freely consented to the adoption.
OR
[Where a statutory exception applies:] spouse consent is not required because
.
8. The proposed adoption complies with the conditions contained in Section 11, including the applicable restriction concerning an existing son or daughter, the prescribed age difference where the adopter and child are of opposite sexes, and the requirement that the same child is not simultaneously adopted by more than one person.
9. On at , after the above court permission, the Guardian actually gave and the Adoptive Parent actually took the child in adoption with the intention of transferring the child from the family of birth to the adoptive family in accordance with HAMA.
NOW THIS DEED WITNESSETH AS FOLLOWS
1. The Guardian declares and confirms that, pursuant to and in accordance with the prior permission granted by the competent court, the Guardian has lawfully given in adoption to the Adoptive Parent.
2. The Adoptive Parent declares and confirms that he/she has lawfully taken the said child in adoption and accepts the rights, duties and responsibilities arising from a valid adoption under law.
3. The parties confirm that the actual giving and taking of the child took place with the intention required by Section 11 of the Act.
4. From the date of a valid adoption, the adopted child shall be deemed to be the child of the adoptive parent for all purposes, subject to Section 12 of HAMA and the provisos contained therein.
5. Nothing in this deed shall be interpreted as granting any property or succession right contrary to Section 12 or other applicable succession law.
6. The Guardian and the Adoptive Parent declare that no prohibited payment or reward has been received, made, given, promised or agreed in consideration of the adoption contrary to Section 17, except anything expressly sanctioned by the competent court in accordance with law.
7. This deed is executed to record and evidence the adoption. Where it is registered and signed by the person giving and the person taking the child in adoption, Section 16 may give rise to the statutory presumption stated therein, unless disproved.
IN WITNESS WHEREOF, the parties have signed this Deed of Adoption on the date and at the place first written above.
Adoptive Parent
Signature: ______________________________
Name: __________________________________
Testamentary Guardian / Person Giving the Child in Adoption
Signature: ______________________________
Name: __________________________________
Spouse of Adoptive Parent - where consent is required
Signature: ______________________________
Name: __________________________________
Witness No. 1
Signature: ______________________________
Name & Address: ______________________________________________
Witness No. 2
Signature: ______________________________
Name & Address: ______________________________________________
Why the Court Order Must Be Mentioned
A testamentary appointment establishes the guardian's status, but Section 9(4) separately requires the guardian to obtain previous permission of the competent court before giving the child in adoption. The deed should therefore identify the court, case/application number and date of the permission order.
Registration and Evidentiary Presumption
Section 16 provides that where a registered document recording an adoption is produced before a court and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption was made in compliance with HAMA unless the presumption is disproved. Registration does not dispense with the underlying statutory requirements, including the prior permission required under Section 9(4).
Official Legal Resources
Legal note: This specimen is for general reference. The actual legal route depends on the child's status, the applicable personal law, the court order, capacity of the parties, factual compliance with Sections 6-11, and applicable stamp and registration law.
Frequently Asked Questions
Can a guardian appointed under a will give a child in adoption?
Yes, if the guardian falls within Section 9 and the circumstances in Section 9(4) exist, but previous permission of the competent court is required.
Is the will itself enough?
No. The testamentary appointment establishes guardianship, but Section 9(4) separately requires prior court permission to give the child in adoption.
What does the court consider before allowing the adoption?
The child's welfare is central. Section 9(5) also requires due consideration of the child's wishes according to age and understanding and scrutiny of any payment or reward connected with the adoption.
Does the adoption deed replace the court order?
No. The deed records the adoption. Where a guardian gives the child under Section 9(4), the required court permission must precede the giving and taking.