Hi Team, We have following scenario. In year 2009 my current wife had a relationship with a person who promised a marriage but before the marriage, she conceived with a baby girl in 2010. On the birth certificate her biological father's name is mentioned. They never were legally married and they never stayed together in one house. In October year 2012 that man stopped contacting her and since then she never heard from him. It seems that he had moved his residence or changed his city. Now she remained with a baby girl and raised her as single mother. In Year 2016 I legally married her and I am willing to adopt her daughter who is now 7 years old. We do have registered marriage certificate.We would like to change her father's name either on birth certificate or through Gazette office. When I researched about the procedure everywhere I noticed following two steps: 1) Registered adoption deed. 2) Application for name change in Gazette office. Now problem is Adoption Deed requires biological father's approval which in our case is not possible as the person's whereabouts are not available with us since last 5 years. Now what shall I do to proceed further? I want to give my name to the daughter. Any help would be appreciated. Regards, Gaurang
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Hello,
A declaration suit to this effect has to be filed in the Civil Court.
Whereupon the court will pass the declaration that he biological father is no more living in the area and is not in contact therefore the adoption in your name be allowed.
You may also go through the recent CARA guidelines available at following link:
http://www.wcd.nic.in/sites/default/files/NTESCL_[deleted]_english%20regulation_0.pdf
You may talk to them telephonically for further details.
Regard
Child cannot be given in adoption by biological mother without biological father consent
2) biological father may be missing but has not been declared dead
3) deed of adoption would not be valid
4) engage detective agency to trace out biological father
Thank you Anilesh for the reply. If I file a declaration suit to the civil court then approximately how long will take to pass the judgement. I know you can not predict the exact time but I am asking on an average. Thanks, Gaurang
Declaration Suit may take years to be disposed of depending upon pendency of cases
Respected mam ...
As you are her legal guardian so as per section 11 of Hindu adaptation and maintenance act 1956 ...Section 11 (vi) of the Act is also relevant, which reads as under:-
"11. Other conditions for a valid adoption- In every adoption, the following conditions must be complied with:
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption....So mam you can also file a declaration suit regarding declare yourself as her legal guardian and than hand over her in the adaptation to your husband ...And after the court order you can change her name ....
Thanku
6 months to 1 year the same will take.
Contact a Local lawyer for the same.
regards
Dear Client,
In adoption , under certain circumstances, consent of father not required - read below
Sec 9 The Hindu Adoptions and Maintenance Act, 1956
(3) The mother may give the child in adoption if the father is dead or has completely and finally 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.
AND in ur case biological father has abandoned the child, hence, adoption may be effective by order of the High Court.
One way out -
In one of the case - Hon`ble Supreme court has allowed an unmarried mother to apply for guardianship of her child without sending a mandatory notice to the father who did not have any ties with the child after its birth.
Case No. Civil Appeal No. 5003 of 2015
Case Title ABC v. The State (NCT of Delhi)
Bench - Justice Vikramajit Sen, Justice Abhay Manohar Sapre. Date of Judgment 6 July 2015
Following this ur wife can legally give her child in adoption.
ON lines of this judgement also she can validly give child in adoption without father consent.
ALSO refer - Kerala High Court
Sunilkumar vs Anila.V on 1 June, 2010 - supports ur case
She is illegitimate child. it is settled law that mother is the natural guardian of illegitimate child. therefore according to Hindu adoption and maintenance act, she can legally give adoption, no need to get permission from biological father. a step father can adopt step child through adoption. you should execute a adoption deed and take her in adoption.
This is a peculiar situation.
I will advise you to visit of the Office of the concerned Registrar and apprise him of the peculiar situation that you are into. He will guide you with the steps that are involved in replacing the name of of the biological father with you.
The other way of doing this is that your wife may obtain a decree of dissolution of marriage(despite the fact that there was not marriage at first place) under section 13 1(vii) of the Hindu Marriage Act.
You can change the name of the daughter also by amking an affidaivt and then making a newspaper publication.
For change of parenthood declaratory suit is not an option.
Unless and until her biological gives father gives the child in adoption you can never take his place. However there is no hindrance to bring her up as her step father taking all the material decisions.
1.Send a letter/notice issued by your wife or her lawyer to that person at her last known address and to the known address of his relative seeking maintenance from him for their daughter and/or consent for giving her in adoption to you. Give 15 days notice to him to act.
2. If there is no response of the letter/notice or if it is returned undelivered, publish the said notice in local 2 News papers.one being in vernacular.
3. Wait for 7 years from the date of his last meeting with your wife.
4. thereafter you can take the girl in adoption declaring her biological father as dead for not not turning up for 7 continuous years.
5. The adoption deed shall have to be drafted accordingly.
1. A widow can give her daughter in adoption to any body and in that case no consent of her late husband is possible to be availed.
2. A person/husband/father can be declared as dead if he does not show up once in 7 years even after being notified.
3. Your wife can file a declaratory suit praying for a declaration that the biological father of her daughter is dead based on the fact that he is missing for 7 years and has not responded even after being notified.
4. This suit may be dispoosed of with in 1 year.
5. Once he is declared dead, you can take the girl in adoption with the consent of her mother being your wife.
She can issue a notice to the biological father about this adoption to his last known address, let it be returned undelivered, then she may issue a notice through a newspaper about this and wait for 15 days time, after which she may approach the registrar's office to get the adoption deed registered on the basis of her efforts to trace out the father and also in the capacity of single mother.
After this once the deed is registered then you may apply for change of name of father in the birth certificate also on the basis of registered adoption deed.
If I file a declaration suit to the civil court then approximately how long will take to pass the judgement. I know you can not predict the exact time but I am asking on an average.
Since the respondent is nil in respect of the declaration sit, it may hardly take 3 months or the maximum of 6 months period