Adoption Procedure in India

Adoption Procedure under Hindu Law

Adoption - Hindus:

Adoption in the Hindus is covered by The Hindu Adoptions Act and after the coming of this Act all adoptions can be made in accordance with this Act. It came into effect from 21st December, 1956.

Prior to this Act only a male could be adopted, but the Act makes a provision that a female may also be adopted. This Act extends to the whole of India except the state of Jammu and Kashmir.

It applies to Hindus, Buddhists, Jains and Sikhs and to any other person who is not a Muslim, Christian, Parsi or Jew by religion

Requirements for a valid adoption

No adoption is valid unless

• The person adopting is lawfully capable of taking in adoption
• The person giving in adoption is lawfully capable of giving in adoption
• The person adopted is lawfully capable of being taken in adoption
• The adoption is completed by an actual giving and taking and
• The ceremony called data homan (oblation to the fire) has been performed. However this may not be essential in all cases as to the validity of adoption

Who may adopt

1.     Capacity of male

      Any male Hindu, who is of sound mind and is not a minor, has the capacity to take a son or daughter in adoption. Provided that if he has a wife living, he shall not adopt except with the consent of his wife, unless his wife 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. If a person has more than one wife living at the time of adoption the consent of all the wives is necessary unless the consent of one of them is unnecessary for any of the reasons specified in the preceding provision.

2.    Capacity of female

a.   Any female Hindu  

b.   who is of sound mind 

c.  who is not a minor, and who is not married, or if married, whose marriage has been dissolved or whose husband 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, has the capacity to take a son or daughter in adoption.

Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife.

The person giving a child in adoption has the capacity/right to do so:

1. No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption.

2. The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except with the consent of the mother unless the mother 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.

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.

4. Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is unknown - the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and due consideration will be given to the wishes of the child having regard for the age and understanding of the child.

The court shall be satisfied that no payment or reward in consideration of the adoption except as the court may sanction has been given or taken.

The person can be adopted

No person can be adopted unless 

1. he or she is a Hindu;

2. he or she has not already been adopted;

3. he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;

4. he or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

Other conditions for a valid adoption are fulfilled.

1. if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son living at the time of adoption

2. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter living at the time of adoption;

3. if the adoption is by a male and the person to be adopted is a male, the adoptive father is at least twenty one years older than the person to be adopted;

4. if the adoption is by a female and the person to be adopted is a male, the adoptive mother s at least twenty one years older than the person to be adopted;

5. the same child may not be adopted simultaneously by two or more parents;

6. the child to be adopted must be actually given and taken in adoption with an intent to transfer the child from the family of birth.

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It is common for any entrepreneur to have a business plan when he starts or runs his business. However, it is surprisingly rare to find them to have trademark component as a part of their business plan. Though trademarks are the essential part of any business and the same represent its goodwill and reputation, it is seemingly common that the entrepreneurs have very little thought while choosing their trademark which could make or break their business. In simple,

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498A - Analysis

There has been a massive change in the scenario since the time Arnesh Kumar judgment has been pronounced by Honorable Supreme Court Of India. There has been an advisory issued by Ministry of Home Affairs which is a direction to all Police Forces to act in cases related to 498a/ where punishment is less than 7 years.


With these changing times, the questions which are posed to me in weekly meetings have also changed. So I decided to compile all of them  and try to answer each of them in a general manner to provide elementary understanding on IPC Section 498a in the new scenario.


Q1. Can 498a be filed after 7 years of marriage?

A1. Yes, there is no limitation of number of years of marriage on filing 498a. However, that doesn’t mean that a wife or her relative can a file 498a on the husband anytime they wish. As per CrPC 468, the limitation on filing of 498a is 3 years from the last alleged incident.


Q2. Is 498a and dowry harassment same?

A2. Interestingly, Section 498a does not contain the word ‘dowry’ at all. Chapter XX A was introduced into the Indian Penal Code (IPC) containing the solitary Section 498A, in order to “deal effectively not only with cases of dowry deaths, but also cases of cruelty to married women by their in-laws.”  Dowry is dealt specifically by The Dowry Prohibition Act, 1961. Section 498a defines and deals with cruelty (both mental and Physical) meted to a married woman and postulates harassment to the woman with a view to coercing her or her relatives to meet any unlawful demand for any property or valuable security, which is in the shape of dowry.


Q3. Can FIR be filed on the Ladies of the house, like mother-in-law, sister-in-law etc?

A2. Yes, in fact it has been often seen that even when the married couple were living in a separate city, the parents-in-law of the wife were added to the complaint only with the purpose of harassment. Courts have taken strict view of this, but the misuse continues to happen, even today. The name of married sister of the husband is generally added to ensure turmoil in her matrimonial life and for unmarried sister, to ensure she doesn’t get married easily.


Q4. Can I get arrested in 498a without notice from Police?

A4. Yes you can still be arrested, though as per Arnesh Kumar Judgment there will be no automatic arrests on 498a and a Police officer has to follow the guidelines in CrPC 41 if he has to make any arrests or not. As mentioned under CrPC 41(1)(b) ”against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied….”  “and the Police office shall record while making such arrest, his reasons in writing. Provided that  a Police officer in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.”


Clearly there is no restriction on making an arrest but the arrest has to be made with Due Process of Law.


Q5. Can a concubine charge 498a on a man and his family ?

A5. No, this section is only for legally valid married  women only


Q6. Can a 498a and Domestic Violence case run parallel?

A6. Yes, they can run parallel. There is no legal bar.


Q7. Is presumption of Innocence applicable in 498a?

A7. Yes, India follows accusatorial system of criminal law, where the act of crime needs to be proved beyond reasonable doubt against the accused for a conviction. The normal rule is that an accused is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case beyond any reasonable doubt.   Article 11.1 of the Universal Declaration of Human Rights, 1948 states – “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” As per our Constitution,  Article 20 contains a presumption of innocence in favour of a suspect, while not affirming does not prohibit it, thereby, leaving it to Parliament to ignore it whenever found by it to be necessary or expedient. Under section 304(b), which is governed by Indian Evidence Act section 113(b), the burden of proof is on the husband and he is not given the benefit of presumption of innocence, however there is no such bar for IPC section 498a.


Q8. Do I have attend all dates in 498a?

A8. As this is a criminal case, it is required that the accused attends all the dates, however an application may be moved under CrPC 205: Magistrate may dispense with personal attendance of accused. “Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided. ”


Q9. Can 498a be charged without MLC or death of wife?

A9. Yes, the only prima facie allegation needs to be of cruelty or harassment as defined under 498a.


Q10.  Can I quash 498a FIR on basis of false evidence?

A10. There are very limited grounds for a quash. Following are the grounds available on which a Quash petition can be filed:

1. The court does not has any territorial jurisdiction

2. Even if the story of the prosecution is assumed to be true, crime is not made out and conviction is not possible,

3. The charges leveled are so improbable that a prudent man cannot believe it.

4. The whole prosecution is malafide.


The charges are false is a matter of trial and quash would not be possible on this ground.


Q11. Can I fight 498a myself in court?

A11. Yes, you can fight your own case in court if you are legally sound or you have to time to learn and understand the nuisances of law. However, if there are more than one accused in the FIR, you can not fight for other accused.


Source:http://shoneekapoor.com/498a-myth-buster-the-current-scenario-for-newly-hits/

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Enforcement of Foreign Court Awards - Child Custody

Chennai woman wins Indo-US custody battle for only son

  CHENNAI: A Chennai-based software engineer won her only son's custody after the Madras high court on Tuesday refused to take cognizance of an interim order of the Superior Court of California, which had granted the permanent custody of the boy to his US-based father, also an engineer.

The boy was born in September 2008 when the couple were working in the US. While he was barely 15 months old, the family came to India for a visit, but only the boy and his father returned to the US, as the mother could not get H1B working visa. The father had a green card and the boy was a US citizen by birth. In 2011, the man and his son came to India but the mother was not informed. However, while they were on their way back, they were made to return from Singapore because the mother had lodged a police complaint and many relatives of the father had been detained. Since then, the boy has been in with his mother.

The father, who went back to the US, moved the court in California, which granted him permanent custody of the boy. The man then approached HC seeking to enforce the order.

But, Justice Pushpa Sathyanarayana picked holes in the father's case, and ruled that the boy will remain with the mother. "Though the father invoked the jurisdiction of the foreign court, he has not obtained any substantive order in his favour," she said.

Pointing out that the US court order restrains the mother from removing the child from the state of California, the judge said, "It is unenforceable, because the child on the relevant date was in the custody of the mother in India." Though he was a green card holder, became a US citizen later, and obtained green cards for his parents, the boy's father never sponsored his own wife, she said.

Pointing out that the mother had accompanied the father and the child to the airport to see them off when she could not travel for want of visa on November 19, 2009, the judge said: "That being so, it is surprising how he can file a case before the foreign court on the ground of abduction/kidnapping...the question of kidnapping does not arise."   Source: timesofindia.indiatimes.com/city/chennai/Chennai-woman-wins-Indo-US-custody-battle-for-only-son/articleshow/48409036.cms  

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Dowry Prohibition Act - Excerpts

Introduction

The practice of giving a "dowry" or a gift to a woman at marriage is said to have its origins in the system of "streedhan" (women's share of parental wealth given to her at the time of her marriage). As a woman had no right to inherit a share of the ancestral property streedhan was seen as a way by which the family ensured that she had access to some of its wealth. There is no clear proof as to when this practice was first started in India. What began as gifts of land to a woman as her inheritance in an essentially agricultural economy today has degenerated in to gifts of gold, clothes, consumer durables and large sums of cash, which has sometimes entailed the impoverishment and heavy indebtedness of poor families. The dowry is often used by the receiving families for business purposes, family member's education, or the dowry to be given for the husband's sister. The transaction of dowry often does not end with the actual wedding ceremony as the family is expected to continue to give gifts. In the course of time dowry has become a widespread evil and it has now assumed menacing proportions. Surprisingly it has spread to other communities, which were traditionally non-dowry taking communities. With the increasing greed for the easy inflow of money on account of a bride the chilling stories of bride burning started coming to light. With a view to eradicate the rampant social evil of dowry from the Indian society, Parliament in 1961 passed the Dowry Prohibition Act which applies not merely to Hindus but all people, Muslims, Christians, Parsees and Jews. It extends to the whole of India except the State of Jammu and Kashmir.

What constitutes dowry

Dowry is defined as any property or valuable security given or agreed to be given either directly or indirectly: By one party to a marriage to the other party to the marriage or; By parents of either party to a marriage or; By any other person to either party to the marriage. BAN ON ADVERTISEMENT Any advertisement in any newspaper, periodical, journal or through any other media offering dowry as consideration for marriage is punishable with imprisonment for a term not less than 6 months and it may extend upto 5 years or with fine upto RS. 15,000 (Fifteen thousand). DOWRY AGREEMENT-NOT VALID An agreement for giving and taking of dowry shall be void The dower or Mahr given during marriage under the Shariat (Muslim Personal) Law. Gifts that are given to the bride or the bridegroom at the time of the marriage (without any demand being made) will not amount to dowry, if such presents are entered in a list in the following manner: The bride shall maintain the list of presents given to the bride The bridegroom shall maintain the list of presents given to the bridegroom The lists shall be prepared at the time of marriage and shall be in writing The list shall contain a brief description of each present, approximate value, the name of the person who presented it, relationship of the presenter to the bride or the groom The list shall be signed (or thumb impression) by both the bride and the groom Where dowry already given- Where any dowry is received by any person other than the woman in connection with whose marriage it is given that person shall transfer it in the name of the women if it was received before marriage within three months after the date of marriage if it was received at the time of marriage or after the marriage within three months after the date of it's receipt if the dowry was received when the woman was a minor within 3 months after she has attained the age of 18 years. Pending such transfer that person shall hold the dowry in trust for the benefit of the woman. In the event of death of the woman dowry shall be transferred to her children or her parents. If any person fails to transfer any property within the time limit specified, he shall be punishable with imprisonment for a term not less than 6 months, but which may extend to 2 years or with fine which shall not be less than RS. 15,000 (Fifteen thousand) or with both.

Remedies

Giving, taking and demanding dowry is a criminal offence under the Dowry Protection Act and the Indian Penal Code. Under the Dowry Prohibition Act only Metropolitan Magistrate or the Magistrate of the first class is competent to try these offences A Complaint may be made in the following manner: A complaint may be filed in the court of the Metropolitan Magistrate or the Magistrate of the first class by the following The person aggrieved of the offence A parent or Other relation of such person or By a recognised welfare institute or organisation A complaint may be filed by the above mentioned persons in the police station or in the crime against women Cell who then make an investigation in the matter and report the facts to court which then takes cognizance of the matter. (Cognizance means notice or knowledge upon which a judge is bound to act) The Metropolitan Magistrate or the Magistrate of the first class may take cognizance himself if such facts come to his own knowledge. A complaint may be filed under the Indian Penal Code for cruelty by husband or relatives of husband. The Code of Criminal Procedure shall apply to offences under the Dowry Prevention Act as if they were cognizable offences (cognizable offence is one in which a police officer may arrest without warrant) for the purpose of investigation of such offences. arrest of a person without a warrant or without order of a magistrate.  Every offence under this Act is a non bailable and non compoundable offence (that which cannot be compromised or settled out of court, between the complainant and the accused, at any stage of the trial) BURDEN OF PROOF Where any person is prosecuted for taking or abetting the taking of any dowry or the demanding of dowry, the burden of proving that he has not committed an offence shall be on him. (One of the principles of the Indian Criminal Law is that a person is innocent until proven guilty and the onus of proving the guilt is on the complainant/prosecutor. This onus has been shifted in certain specific offences such as Dowry, Rape, etc.). PENALTY FOR TAKING OR GIVING DOWRY The giving, taking or even abetting to give or take dowry amounts to an offence punishable with imprisonment for not less than 5 years and with fine which shall not be less than RS. 15,000 (Fifteen thousand) or the amount of value of the dowry, which ever is more. PENALTY FOR DEMANDING DOWRY If any person demands directly or indirectly, from the parents or other relatives of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with an imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which may extend to RS. 10,000 (ten thousand) LIMITATION There is no period of Limitation for filing a complaint under the Dowry Protection Act. For example: If a person was harassed for dowry in the year 1996 she can file a complaint in the year 2001 or even later as for prosecution under the Act bar of limitation has been removed. DOWRY PROHIBITION OFFICERS The Act also empowers the State Government to appoint Dowry prohibition officers and they have the following powers and functions. To ensure the compliance of the Act. To prevent the taking or demanding of dowry. To collect evidence necessary for the prosecution of persons committing offence under the Act. To perform additional functions as may be assigned to him by the State Govt.

Dowry death

The Indian Penal Code provides that where any women dies an unnatural death within seven years of her marriage and it is shown that she was harassed or subjected to cruelty by her husband or his relative for dowry, such death shall be called a Dowry death. The husband or the relative shall be deemed to have caused the death of the women. The offence is punishable with imprisonment of not less than seven years (Section 304B Indian Penal Code).

Cruelty/Harassment Towards Women

Whoever, being a husband or relative of the husband subjects such women to cruelty shall be punished with imprisonment for a term of three years. Cruelty has been defined as: Any conduct which is likely to drive the women to commit suicide or to cause grave injury or danger to life, limb or health (Mental or physical) of the women, or Harassment with a view to coercing her or any person related to her to meet any lawful demand for property or valuable security or is on account of failure by her or any person related to her to meet such demand. (Section 498A Indian Penal Code)

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Source of income of complainant has to be proved in 138 NI ACT CASES

Court           : Supreme Court of India
Judge           : V. GOPALA GOWDA and C. NAGAPPAN
Decided On : Nov-13-2014
Appellant     : K Subramani
Respondent  : K Damodara Naidu
Judgment      :
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.2402 OF2014[ Arising out of SLP (Crl.) No.6197 of 2014]. K. Subramani … Appellant(s) versus K. Damodara Naidu … Respondent(s)

JUDGMENT

C. NAGAPPAN, J.
Leave granted. This appeal is preferred against judgment and order dated 10.10.2013 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.368 of 2009 wherein the High Court set aside the judgment of acquittal of the trial court and remanded the case to the trial court for retrial. 1 The respondent herein/complainant and the appellant/accused were working as lecturers in a Government College at Bangalore. The case of the complainant is that the accused borrowed a loan of Rs.14 lakhs in cash on 1.12.1997 from him to start granite business, promising to repay the same with 3% interest per month on demand and issued post-dated cheque dated 30.11.2000 for sum of Rs.29,12,000/- which included principal and interest and few days prior to presentation of the cheque on its due date to bank for encashment, the accused requested him not to present the cheque and took extension of time of another three years for repayment and finally issued a cheque dated 16.08.2005 for a sum of Rs.73,83,552/- which included principal and interest.
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