UNIT 16: EFFECTS OF ADOPTION AND ADOPTION UNDER JUVENILE JUSTICE ACT,

2015
SECTION 12: EFFECTS OF ADOPTION:
● From the date of the adoption
● an adopted child is considered to be the child of his or her adoptive father or mother for
all purposes.
● From that date, all of the child's ties to his or her birth family are considered to be
broken, and new ties are made with the adoptive family.
A. The child can't marry anyone he or she couldn't have married if he or she had stayed
with his or her birth family.
B. Any property that belonged to the adopted child before the adoption will still belong to
that person, as long as they keep up with any responsibilities that come with owning that
property, like taking care of his or her birth family.
C. The adopted child can't take anything away from anyone that was his or hers before the
adoption.

CASE LAW:
Smt. Sitabai v. Ramchandra (1970)
● Reading the main part of Section 12 and sub section of Section 11 makes it clear that
adoption under the Act causes the child to lose all links to his or her birth family.
● The child has no more ties to the family that gave birth to him.
● In the adoptive family, these ties are instantly replaced by the ones that are made by the
adoption.
● The legal result of giving the child up for adoption must be that the child moves from the
family where it was born to the family where it was adopted.

Section 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.

14. Determination of adoptive mother in certain cases

● If a Hindu with a living wife adopts a child, the wife is considered to be the child's mother.
● When more than one wife agrees to an adoption, the wife who was married the longest
is considered to be the adoptive mother. The other wives are called step moms.
● If a widower or single man adopts a child, any woman he marries after that will be
considered the child's stepmother.
● When a widow or single woman adopts a child, any man she marries afterward is
considered the stepfather of the child she adopted.

Section 15 Valid adoption not to be cancelled

No one, including the adoptive parents or anyone else, can cancel a legal adoption, and the
adopted child can't give up being adopted and go back to his or her birth family.
Section 16 Presumption as to registered documents relating to adoption
When a document that was registered under a law in effect at the time of the adoption is shown
to a court and signed by both the person who gave the child up for adoption and the person who
took the child in adoption, the court will assume that the adoption was done in accordance with
this Act unless and until it is proven otherwise.

CASE LAW
Pathivada Rama Swami v. Karoda Surya Prakasa Rao (1993)
When a document that was registered under a law in effect at the time of the adoption is shown
to a court and signed by both the person who gave the child up for adoption and the person who
took the child, the court will assume that the adoption was done in accordance with this Act.
There is no need to prove who gave and who took the child.

Section 17. Prohibition of certain payments

● No one can accept or agree to accept a payment or other reward in exchange for
adopting someone, and no one can make, give, or agree to make or give to someone
else a payment or reward that is forbidden by this section.
● If someone breaks Section 1, they could go to jail for up to six months, pay a fine, or get
both.
● No charges can be brought under this section without the approval of the State
Government or an officer who is authorised by the State Government to do so.

Adoption under Muslim law, Parsi law and Christian law

In other personal laws, like Muslim law, Christian law, and Parsi law, there are no separate laws,
so they can only ask the court for care under the Guardians and Wards Act of 1890. When a
child turns 21, he or she will be treated as a separate person.

CASE LAW:
Mohammed Khan v. Muhammad Ismail
“There is nothing in the Mohammedan law similar to adoption as recognized in the Hindu
system”

Adoption under Juvenile justice (Care and Protection of Children) act 2015

● Section 58 of the Juvenile Justice (Care and Protection of Children) Act says that any
Indian person, no matter what religion they are, who wants to adopt an orphaned,
abandoned, or surrendered child must apply to a Specialised Adoption Agency (SAA).
● Section 57 of the Juvenile Justice (Care and Protection of Children) Act says that the
people who want to adopt a child should be healthy, financially stable, mentally aware,
and very interested in giving the child a good upbringing. Both partners must also agree
to the adoption.
 UNIT 17: TESTAMENTARY GUARDIAN AND GUARDIAN APPOINTED BY THE COURT

TESTAMENTARY GUARDIAN
● Under Section 9 of the Hindu Minority and Guardianship Act, 1956 testamentary
guardian only authorized by a Will.
● According to the Hindu Minority and Guardianship Act, 1956 testamentary power of
choosing a guardian has been provided to both, father and mother.
● If the mother survives the father, she would be the guardian of her minor child and not
the testamentary guardian as per provision of the Act of 1956.
● The mother too can appoint a testamentary guardian of her own choice when she
survives her husband The Will executed by her would be given effect to but if she does
not appoint any testamentary guardian then on her death, the testamentary guardian
appointed by the father’s Will would function from the time of her death.
● Even during the father’s life time the mother can now appoint a testamentary guardian
for the minor children, in the case the father becomes disentitled to acts as guardian.
● The powers of the testamentary guardians are not higher than those of natural guardian.
● A testamentary guardian has the right to decline the appointment, but once he/she
receives the guardianship then he/she can not decline to perform or resign without the
permission of the Court.
● Under the Act of 1956 the powers of testamentary guardian’s are statutorily curtails just
like the powers of the natural guardians. The powers of the testamentary guardian can in
no case exceed those of the natural guardian.
● If the father chooses a testamentary guardian but the mother rejects him, then the
chosen guardian of the father Will be inefficient and the mother will be the natural
guardian thereafter.
● If the mother chooses a testamentary guardian, her chosen guardian Will become the
testamentary guardian and father’s appointment will be void.
● If the mother does not want to choose any guardian then father’s appointee will become
the guardian.
● A Hindu father can not choose a guardian of his minor illegitimate children even when he
is allowed to perform as their natural guardian.
● A testamentary guardian for a female minor ceases to be guardian when the minor is
married since her husband then becomes her natural guardian.

Section 10 Incapacity of minor to act as guardian of property-

A minor shall be incompetent to act as guardian of the property of any minor.

Section 11 De facto guardian not to deal with minors property-

After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the
property of a Hindu minor merely on the ground of his or her being the de facto guardian of the
minor.
Section 12 Guardian not to be appointed for minor’s undivided interest in joint family
property
When a minor has an undivided interest in joint family property and an adult family member is in
charge of the property, no guardian will be appointed for the minor's undivided interest.
However, nothing in this section affects the High Court's ability to appoint a guardian for such an
interest.

JOINT HINDU FAMILY

● A joint Hindu family is a legal entity. It acts through its manager called the Karta of the
family.
● The coparceners have no doubt an interest in the joint Hindu family. The interest is a
fluctuating interest, varying with the births and deaths of the various coparceners.
● Thus, it does not also entitle the coparcener to interfere with the management of the
Karta.
● When a coparcener is a minor then no court can appoint any guardian in respect of his
undivided interest in the coparcenary property except the High Court.

A Guardian appointed by the Court

● In the earlier days of Smritis, the overall jurisdiction for the children was sanctioned over
● the king.
● The king had the power to choose a closet relation of the minor as guardian.
● This above type of powers were applied by the Courts under the Guardians and Wards
● Act, 1890.
● However, this condition has now been changed because of the Act of 1956.
● The guardian who is appointed by the Courts, he/she will be known as a certified
guardian or guardian appointed by the Court.
● Under Section 13 of the Hindu Minority and Guardianship Act, 1956 while the
appointment of any person as guardian is going on by the Court, the welfare of the minor
● shall be the primary consideration.

GUARDIANSHIP CASES
Mookund v. Nobodip (1898)
FACTS:
A Hindu became a convert to Christianity At the time of conversion he left his minor son in the
care of his father (minor’s grandfather). The minor was being properly brought up Several years
later the father changed his mind and wanted to recover custody of his son.

HELD:
The welfare of the minor required his continuance with the grandfather and dismissed the
father’s petition for custody.

The paramount consideration is the welfare of the minor Even change of religion be itself may
not necessitate a change in guardianship (Ref case Joshy Assam 1896).
Removal of guardian in certain cases
a) Minor’s conversion
In Queen v Nesbitt 1853 a Brahmin boy of 12 year convert to Christianity. The Court
considered that the change of religion of the minor need not necessarily lead to a change of
guardianship and ordered the Christian instructors to deliver the boy to the father.

In Sarat Chandra v Forman 1890 when a Hindu boy aged 16 who was able to take care of
himself, was converted to Christianity and did not want to live with his Hindu brother, who was
acting as his guardian, his wishes were respected and the petition of the brother for custody of
the minor was dismissed.

b) Parent’s conversion
In Mookund v Nobodip 1898 a Hindu became a convert to Christianity. At the time of
conversion he left his minor son in the care of his father (i e minor’s grandfather). The minor was
being properly brought up Several years later the father changed his mind and wanted to
recover custody of his son. The Court concluded that the welfare of the minor required his
continuance with the grandfather and dismissed the father’s petition for custody.

c) Remarriage of widowed mother etc

Widow remarriage is permitted by the law So a widow may remarry and still continue to be the
natural guardian of her minor child by the former marriage.

The factors which the judge considers before taking guardianship from a parent are:
1. When the guardian of a child causes any kind of harm to the child.
2. When the guardian is not able to keep the child in a stable place ensuring mental
growth.
3. When the guardian doesn’t have a fixed source of income to support the education or
provide sufficient means for the growth of the child.
4. Section 19 ( of the Guardians and Wards Act, 1890 includes the phrase “ for the
guardians who are found not capable of being a guardian in the eyes of the court, or.
5. Once the child is of the age of 12 years, the decision of the child to stay with either of the
parents is taken into consideration by the Court

Hindu law tried to find a result from two difficult conditions:

● First, when a Hindu child has no legal guardian, there would be no person, who would
manage his property under law, and therefore without a guardian the child would not
receive any advantages for his property.
● Second, a person having no designation could not be a allowed to interfere with the
child’s property because such person can cause loss to the child. The Hindu law got a
result of this difficult condition because of legal status to De Facto guardians which is
now not recognized under the Act of 1956.
Guardianship of a minor widow (guardianship by sympathy)
● In the early days of the Smritis, it was normal for children to get married.
● When a girl under 18 got married, her husband became her guardian.
● If the husband died, the young widow shouldn't feel dangerous.
● Narada says that when a young girl loses her husband and becomes a widow, it is the
husband's family's job to protect and care for her.
● If there is no one in the husband's family, then the widow's father takes care of her and
protects her.
● Before 1956 there was a guardian called guardianship by affinity.
● It was the guardian of a minor widow which was given by the Guardianship and Wards
Act, 1890.
● No provision is given under the Hindu Minority and Guardianship Act, 1956 for the
guardianship of a minor widow in such situation.

CASE LAW
PARAS RAM V. STATE
FACTS:
The father in law of a minor widow forcefully took away the widow from her mother’s control and
married her to an improper person without the widow’s consent.

HELD:
The father in law guilty of displacing the girl without her consent.