When Can a Guardian Give a Child in Adoption?
Section 9 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA) regulates who may give a Hindu child in adoption. A guardian does not have a general or automatic power to give the child in adoption merely because he or she has custody or has been appointed guardian.
Who Is a Guardian under Section 9?
For this purpose, the statutory expression "guardian" includes a person having the care of the child's person, or of both the child's person and property. It includes a guardian appointed by the will of the child's father or mother and a guardian appointed or declared by a court.
What Must the Court Consider?
Under Section 9(5), the court must be satisfied that the proposed adoption is for the welfare of the child. The court must give due consideration to the child's wishes 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 Requirements for a Valid HAMA Adoption
- Section 6: all requisites of a valid adoption must be satisfied.
- Section 7 or 8: the proposed adoptive parent must have legal capacity to adopt.
- Section 9: the guardian must fall within the statutory provision and have previous court permission.
- Section 10: the child must be capable of being adopted under HAMA.
- Section 11: existing-child restrictions, applicable 21-year age-gap rules and actual giving and taking must be satisfied.
- Section 12: the consequences of a valid adoption are subject to the provisos in that section.
- Section 16: a qualifying registered adoption document 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 by Guardian
Fill in the deed only after verifying the statutory ground under Section 9(4) and obtaining the court's previous permission. Delete any clause that does not apply to the actual facts.
DEED OF ADOPTION BY GUARDIAN
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 lawful guardian of the child described below, hereinafter referred to as the "Guardian".
WHEREAS
1. The child proposed to be adopted is , born on , and is a Hindu who is capable of being adopted under Section 10 of the Hindu Adoptions and Maintenance Act, 1956.
2. The Guardian has care of the child's person / person and property and was appointed or declared guardian by Court by order dated in Case No. .
3. The statutory circumstance permitting the Guardian to seek permission under Section 9(4) is that .
4. The Guardian applied to the competent court for previous permission to give the said child in adoption to the Adoptive Parent.
5. By order dated passed in Application/Case No. , the competent court granted permission to the Guardian to give the child in adoption to the Adoptive Parent. A certified copy of the order may be retained with this deed.
6. The Adoptive Parent is a Hindu, is of sound mind, is not a minor and is legally competent to adopt under Section 7 or Section 8 of the Act, as applicable.
7. [Where spouse consent of the Adoptive Parent is required:]
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 Section 11, including the applicable restriction relating to an existing son or daughter, the required age difference where the adopter and child are of opposite sexes, and the rule that the same child cannot be adopted simultaneously by two or more persons.
9. After grant of the court's previous permission, on at , 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 confirms that, pursuant to the previous permission granted by the competent court, the Guardian has lawfully given in adoption to the Adoptive Parent.
2. The Adoptive Parent confirms that he/she has lawfully taken the said child in adoption and accepts the legal responsibilities arising from a valid adoption.
3. The parties confirm that actual giving and taking occurred after the court's permission and with the intention required by Section 11.
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 statutory provisos contained in that section.
5. Nothing in this deed shall be interpreted as creating property or succession rights contrary to Section 12 or other applicable succession law.
6. The Guardian and Adoptive Parent declare that no payment or reward has been received, made, given, agreed or promised in consideration of the adoption contrary to Section 17, except anything expressly sanctioned by the competent court.
7. This deed is executed to record and evidence the adoption. If it is registered and is signed by the person giving and the person taking the child in adoption, the evidentiary presumption under Section 16 may apply 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: __________________________________
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: ______________________________________________
Registration and Section 16
Section 16 provides an evidentiary presumption 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 compliance with HAMA unless the presumption is disproved. Registration does not, however, dispense with the substantive requirements of Sections 6 to 11 or the mandatory previous permission required for a guardian under Section 9(4).
Official Legal Resources
Legal note: This is a general specimen for a HAMA adoption. The correct route depends on the child's legal status, the circumstances specified in Section 9, the court's permission, capacity of the parties, factual compliance with Sections 6-11 and applicable stamp and registration requirements.
Frequently Asked Questions
Can every guardian give a child in adoption?
No. A guardian may do so only in the circumstances specified in Section 9(4) and only after obtaining previous permission of the competent court.
Is an order appointing a guardian enough?
No. The guardianship order establishes the guardian's status. Section 9(4) separately requires previous judicial permission to give the child in adoption.
What is the main consideration for the court?
The welfare of the child. 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.
Is a religious ceremony compulsory?
Actual giving and taking with the required intention is essential. HAMA expressly states that performance of datta homam is not essential to validity.