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Business News/ Money / Personal-finance/  In India, adoption is not permitted in the personal laws of Muslims and Christians

In India, adoption is not permitted in the personal laws of Muslims and Christians

However, Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt

Photo: iStockPremium
Photo: iStock

My father was adopted by my grandfather when he was 7. Later my grandfather had a biological son and daughter as well. Recently I tried to get my share but my cousins have refused it as there are no adoption documents. What should be my recourse?

—Taranjit Singh

Though adoption is an age-old practice, a legal framework was established so as to protect the rights of the adopted child. In India, adoption falls under the ambit of personal laws, and due to the incidence of diverse religions practiced in our country, mainly two different laws operate. Adoption is not permitted in the personal laws of Muslims, Christians, Parsis and Jews in India, and hence they usually go for guardianship of a child through the Guardians and Wards Act, 1890. Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt. The adoption is under the Hindu Adoption and Maintenance Act of 1956. Adoption comes under the ambit of personal laws. Therefore, this law is governed by various personal laws of different religions.Primarily, you should collate all the necessary documents to establish that your father was legally adopted and that he inherited his share in the ancestral property, and thereafter you may file ‘suit for partition’ in the court of law. Further, in case the subject property has already been sold without your consent, we may suggest you to add the purchaser of such property, as a party to the suit for partition.

I was divorced 3 years ago. There are some tax-saving investments that I and my ex-spouse had made jointly. How will those be resolved? There was no mention of these in the divorce decree.

—Binita Gupta

Generally, in joint investments the parties confirm their rights as ‘either or survivor’, in which case the signatures of one of the parties is sufficient for receiving payment, and the signatures of both the depositors may have to be obtained in case the deposit is to be paid before maturity. Whereas, if it is ‘former or survivor’, then ‘former’ can operate/withdraw the matured amount of the investments, even if both the depositors are alive; and the signature of both the depositors may have to be obtained in case the deposit is to be paid before the date of maturity.

To arrive at a clear resolution, it would be important to understand as to which tax-saving investments have been made by you and your ex-spouse, and the redemption policy of the bank. It is also very important to understand about the mutual understanding, if any, that has been arrived between you and your ex-spouse for giving up the rights in favour of ex-spouse in respect of the aforesaid tax-saving investments and/or other investments, which would mature post divorce.

What are the rights of stepchildren in their stepparent’s assets and properties? In what respects do the rights of stepchildren differ from adopted children?

—Indra Kumar Gosain

An adopted child is 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 on and from such date all the ties of the adopted child to the family of his or her birth, are deemed to be severed and replaced by those created by adoption in the adoptive family). It is clear that a child adopted by a couple has the same rights as that of a child born to those parents, and neither the adoptive parents nor the child can overturn a valid adoption; and the same principle applies to stepchildren, subject to the second marriage made in a legal manner.

Whereas, with respect to the rights of the stepchildren, in a very recent judgment the High Court of Bombay has held that the stepson does not fall under either Class I or Class II of Hindu Succession Act and is not entitled to succeed to the estate of the deceased male Hindu, and therefore the stepson cannot claim to defend the suit as such legal heir. Further, the High Court of Bombay has observed that the expression ‘son’ in the Hindu Succession Act does not include a stepson.

‘Son’, in common parlance, means a son born to a person after marriage. It is the direct blood relationship, which is the essence of the term ‘son’. The word ‘son’ in Class I of the schedule to the Hindu Adoption and Maintenance Act would thus include an adopted son but there is no warrant for including a stepson in the meaning of the expression ‘son’ used in Class I of the schedule.

The context in which the term ‘son’ is used in the schedule does not admit of a stepson.

Amit Kolekar is Associate Partner, Rajani Associates.

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Published: 06 Mar 2018, 05:40 PM IST
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