-P. RAJENDRAN, Advocate www.prassociate.com
In the case of an adopted child, is it the name of the biological father or the name of the adoptive father that should find a place in the child’s passport against the column “name of father”? In some cases, it so happens that after the marriage of the biological parents is dissolved by a decree of divorce and the biological mother takes the custody of the minor child and after some time she re-marries and gives the child in adoption to the second husband (without the consent of the first husband) and the name of the child is changed and a notification is published in the official gazette to that effect and while applying for passport for the child the name of the adoptive father is given against the column “name of father” and thus a discrepancy arises between the name of the biological father as found in the Hospital Records and in the Birth Register Extracts and the name indicated in the application form and the passport office rejects the application. What is the way out?
Under Section 7 of the Hindu Adoptions and Maintenance Act, 1956, a male Hindu who wishes to take a child in adoption, shall not adopt, except with the consent of his wife, unless such wife has completely and finally renounced the world or ceased to be a Hindu or has been declared by a competent court to be of unsound mind. Under Section-8 of the Act, the mother may give the child in adoption if the father is dead or has completely and finally renounced the world or ceased to be a Hindu or has been declared by a competent court to be of unsound mind. The Explanation to Section 9 of the Act declares that the expressions “father” and “mother” do not include adoptive father and adoptive mother. Section 12 of the Act deals with the effect of adoptions and as per the said provision, an adopted child shall be 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 from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family, provided that- (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. Therefore the fundamental premise on which the Hindu Law of Adoptions proceeds is that the relationship between the biological parents and the child can never get severed, except in accordance with the above said provision of the Act.
It is clear from the above discussion that there should be a valid adoption in order to sever the relationship between the biological parents and the child. Valid adoption is the one done in accordance with the above mentioned provisions and other provisions of the Act. If the adoption is not valid as per the said Act, then the relationship between the biological parents and the child continues and in such cases the name of the biological father can never be replaced with that of the adoptive father. If there is a valid adoption, the name of the biological father can be replaced with that of the adoptive father.
In view of the said legal position, the Madras High Court has suggested that the Ministry of External Affairs, Union of India may incorporate suitable provisions in the Passport Manual and incorporate suitable columns in the applications for the issue of passports, to enable the parties to indicate either the names of the biological parents or the names of the adoptive parents or the names of the step parents or all of them and it can be left to the will of the parties either to indicate the names of one or more of the biological parents along with the name/names of the adoptive or step-parent/ parents or to indicate the names of all. Let us hope that the Ministry will take the said suggestion seriously and make necessary changes and come to the rescue of such adopted children.