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MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

SUBJECT- CAS

PROJECT TOPIC- ADOPTION

FIRST DRAFT

Third semester: B.A. LL.B. (Hons.)

Submitted to: Submitted by:

Prof. Saumya Uma Apurva Gudewar

Prof. Sajid Sheikh Enrollment no. - 2015 018

TABLE OF CASES:
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1.Krishnarav Trimbak Hasabnis v. Shankarrav Vinayak lasabnis, (1892) 17 Bom. 164

2.Adoptive Couple v. Baby Girl, 570, U.S. . (2013)

TABLE OF CONTENT:

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1. CHAPTER 1 Introduction.pg-3

2. CHAPTER 2 - Salient Features of Hindu Adoptions and Maintenance Act 1956 , Juvenile
Justice Act 2000, Guardianship and Wards Act, 1890pg-6

3. CHAPTER 3 - Cases...pg-9

4. CHAPTER 4 - Procedure for filing a deed for adoptionpg-11

5. CHAPTER 5 - Draft on an Adoption deed....pg-13

6. CHAPTER 6 Conclusion.pg-14

7. BIBLIOGRAPHY..pg-15

Chapter 1. - INTRODUCTION:
Adoption is a process whereby a person assumes the parenting of another, usually a child and or
animal from that person's biological or legal parent or parents and in so doing permanently
transfers all rights and responsibilities along with filiation from the biological parent or parents.
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Unlike guardianship or other systems designed for the care of the young, adoption is intended to
effect a permanent change in status and as such requires societal recognition, either through legal
or religious sanction. In India, an Indian, Non Resident Indian (NRI), or a foreign citizen may
adopt a child. There are specific guidelines and documentation for each group of prospective
adoptive parents. A single female or a married couple can adopt a child. In India, a single male is
usually not eligible to be an adoptive parent. While adoption has been practiced in India for
centuries, the laws regarding adoption have not been uniform. 1
Adoption has been subject to the personal laws of the many religions that exist in India. The
treatment of an adopted child varies among the personal laws, from treating an adopted child as a
natural born child, to not recognizing adoption at all. In India, Hindus, Jains, Sikhs or Buddhist
are allowed to formally adopt a child. This adoption comes under Hindu Adoption and
Maintenance Act, 1956. There are other laws such as Guardianship and Wards Act, 1890,
Juvenile Justice Act, 2000 etc., to provide the provisions of adoption not only for Hindus but also
for all non Hindus such as Christians, Muslim, Parsis and Jews. Under the Guardianship and
Wards Act, while the adoptive parents are conferred guardianship status, the adopted child does
not automatically get inheritance right. The guardians need to submit an investment plan and also
a certain amount of money in the name of the child for his/her future. According to the Juvenile
Justice Act, the Act is applicable only to children who have been abandoned or abused and not to
those children who have been voluntarily put for adoption. 2
Given that India is a multicultural, multilingual and multireligious country, it is a huge
undertaking to identify all the complexities that affect adoption policy and practice throughout
the country. Still, it is critical to have research-based information on the issues in Indian
adoptions. Adoption is not a panacea for the multiple problems that cause children to be orphaned
or abandoned. However, it is a vital component in a system of care that promotes permanency
and well-being for children, adoption is the best means to restore family life to a child deprived
of his or her biological family. The wish to adopt a child comes purely from the heart. Yet, other
aspects such as the financial, legal and procedural too need to be looked at. Children placed for

1Simply put: What it takes to adopt a child in India today, http://indianexpress.com/article/explained/simply-put-what-it-


takes-to-adopt-a-child-in-india-today/

2New adoption rules to help cut waiting time, http://timesofindia.indiatimes.com/city/chennai/-New-adoption-rules-to-


help-cut-waiting-time/articleshow/51352607.cms

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adoption have no one to speak for them, except the adoption laws and procedures framed to
protect their best interests.3

Chapter 2. - FEATURES OF ACTS


Hindu Adoptions and Maintenance Act 1956:
Under this act only Hindus may adopt subject to their fulfilment of certain criteria. The first of
these asserts that the adopter has the legal right to adopt a child. Next, they have to have the
capacity to be able to provide for the adopted child. Thirdly the child must be capable of being
adopted. Lastly, compliance with all other specifications must be met to make the adoption valid.
3 S. D. Gokhale, Inter-country Adoptions and Consultancy in Guardianship, Indian Journal of Social Work 37, no. 2
[1976]: 10920
5
Men can adopt if they have the consent of their wife. The only way of getting around obtaining
the permission of the wife or of the wives is if she or if they are unsound, if they have died, if
they have completely and finally renounced the world and if they have ceased to be a Hindu. Men
who are unmarried can adopt as well as long as they are not a minor. However, if a man were to
adopt a daughter, the man must be twenty one years of age or older. Only unmarried Hindu
women can legally adopt a child. A married woman can only give her consent to adoption by her
husband. A married woman whose husband adopts a child is to be considered the mother. If the
child is adopted and there are more than one wife living in the household, then the senior wife is
classified as the legal mother of the adopted child.4

The adopted child can be either male or female. The adopted child must fall under the Hindu
category. The adoptee also needs to be unmarried; however, if the particular custom or usage is
applicable to the involved parties then the adoptee can be married. The child cannot be the age of
sixteen or older unless again it is custom or the usage is applicable to the involved parties. An
adoption can only occur if there is not a child of the same sex of the adopted child still residing in
the home. In particular, if a son were to be adopted then the adoptive father or mother must not
have a legitimate or adopted son still living in the house. From the date of the adoption, the child
is under the legal guardianship of the new adopted parent(s) and thus should enjoy all the benefits
from those family ties. This also means that this child, therefore, is cut off from all legal benefits
(property, inheritance, etc.) from the family who had given him or her up for adoption.5

Juvenile Justice Act 2000:


Sec.41 of J.J. Act, 2000 read with Rule 33(1) of Central Rules expresses the following aspects of
adoption:
The primary aim of adoption is to provide a child who cant be cared for by his biological parents
with a permanent substitute family. The family of a child has the primary responsibility to
provide him care and protection. Orphan, abandoned or surrendered children can be adopted for
their rehabilitation through such mechanism as may be prescribed. Such children may be given in
adoption by a Court in keeping with the provisions of several guidelines regarding adoption
issued by the State Govt./Central Adoption Resource Authority and notified by the Central Govt.
But the Court should be satisfied with the investigation having carried out which are required for
4 Adoption under HAMA, http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-
Act.html

5 Sangitha Krishnamurthy, how to adopt a child in india?, http://www.thealternative.in/society/how-to-adopt-a-child-in-


india/

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giving such childrent into adoption process. For placement of the orphan, abandoned or
surrendered children for adoption in accordance with the said guidelines, the State Govt. shall
recognize in each district one or more institutions or voluntary organizations as specialized
adoption agencies. The Childrens Homes and institutions run by the State Govt. or voluntary
organizations for children in need of care and protection who are orphan, abandoned or
surrendered should ensure that these children are declared free for adoption by the Committee
(Child Welfare Committee) and such cases shall be referred to the adoption agency of that district
for their placement in adoption. The guidelines issued by the CARA and notified by the Central
Govt. Under Section 41(3) of the Act, shall apply for all matters relating to adoption.
Now, it is necessary to understand what is Child Welfare Committee. As per Sec.2 (f) of the
Juvenile Justice Act, 2000 the expression Committee means a Child Welfare Committee
constituted Under Section 29 of the Act. 6''7

Guardianship and Wards Act, 1890:


Personal law of Muslims, Christians, Parsis and Jews does not recognise complete adoption. As
non-Hindus do not have an enabling law to adopt a child legally, those desirous of adopting a
child can only take the child in 'guardianship' under the provisions of The Guardian and Wards
Act,1890. This however does not provide to the child the same status as a child born biologically
to the family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956 the
child cannot become their own, take their name or inherit their properly by right. This Act confers
only a guardian-ward relationship. This legal guardian-ward relationship exists until the child
completes 21 years of age. Foreigners who seek to adopt an Indian Child, do so under this Act to
assume legal Guardianship of the child, after giving an assurance to the court, that they would
legally adopt the child as per the laws of their country, within two years after the arrival of the
child in their country.8

Adoption under Muslim law-


Adoption is the transplantation of a son from the family in which he is born, into another family
by gift made by his natural parents to his adopting parents. Islam does not recognise adoption. In
Mohammed Allahabad Khan v. Mohammad Ismail it was held that there is nothing in the
6 Nayantara Malyya, Before adopting child in India, http://www.womensweb.in/articles/adoption-your-questions-
answered/
7 Amir Khan, Bombay HC gives landmark ruling in adoption, http://indianexpress.com/article/mumbai/bombay-hc-
gives-land-mark-ruling-in-adoption/
8 Adoption Rules in India, http://www.indiaparenting.com/adoption/4_1347/adoption-rules-in-india.html

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Mohammedan Law similar to adoption as recognized in the Hindu System. Acknowledgement of
paternity under Muslim Law is the nearest approach to adoption. The material difference between
the two can be stated that in adoption, the adoptee is the known son of another person, while one
of the essentials of acknowledgement is that the acknowledgee must not be known son of another.
However an adoption can take place from an orphanage by obtaining permission from the court
under Guardians and Wards act.9

Adoption under Parsis and Christian laws:

The personal laws of these communities also do not recognize adoption and here too an adoption can
take place from an orphanage by obtaining permission from the court under Guardians and wards act. A
Christian has no adoption law. Since adoption is legal affiliation of a child, it forms the subject matter
of personal law. Christians have no adoption laws and have to approach court under the Guardians and
Wards Act, 1890. National Commission on Women has stressed on the need for a uniform adoption law.
Christians can take a child under the said Act only under foster care. Once a child under foster care
becomes major, he is free to break away all his connections. Besides, such a child does not have legal
right of inheritance. The general law relating to guardians and wards is contained in the Guardians and
Wards Act, 1890. It clearly lays down that father's right is primary and no other person can be
appointed unless the father is found unfit. This Act also provides that the court must take into
consideration the welfare of the child while appointing a guardian under the Act. 10

Chapter 3. - CASES

1.Krishnarav Trimbak Hasabnis v. Shankarrav Vinayak lasabnis, (1892) 17 Bom. 164

There was a Hindu guy who died leaving a widow and a son, the also son died. Later on the widow also
died. Upon her death, her mother-in-law succeeded as heir and thereafter adopted the plaintiff to her
deceased husband. The latter filed a suit to recover certain property on the strength of his adoption. The
High Court, following the Privy Council cases, held that the adoption was invalid. This case was
followed in turn by a Full Bench of this Court in Ramkrishna v. Shamrao (1902) 26 Bom. 526 where it
was held that, where a Hindu dies, leaving a widow and a son, and that son himself dies leaving a
natural-born or adopted son or leaving no son but his own widow to continue the line by means of

9 S. Arthi Anand,Adoption Laws: Need for Reform, Economic and Political Weekly, Vol. 37, No. 38 (Sep. 21-27,
2002), pp. 3891-3893, http://www.jstor.org/stable/pdf/4412629.pdf
10 Victor Groza,Adoption in India: Policies and Experiences,The University of Chicago Press
http://www.jstor.org/stable/pdf/10.1086/507778.pdf
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adoption, the power of the former widow is extinguished and can never afterwards be revived.11

2.Alan C. Eidsness and Jaime Driggs


This case was a decision of the Supreme Court of United States, it was held that several sections of the
Indian Child Welfare Act (ICWA) do not apply to Native American(Indian) biological fathers who are
not custodians of an Indian child. The court held that the procedures required by the ICWA to end
parental rights do not apply when the child has never lived with the father. Additionally, the
requirement to make extra efforts to preserve the Indian family also does not apply, nor is the preferred
placement of the child in another Indian family required when no other party has formally sought to
adopt the child. In 2009, a couple from South Carolina, Matthew and Melanie Capobianco, sought to
adoptt a child whose father, Dusten Brown, was an enrolled member of the Cherokee Nation and whose
mother, Christina Maldonado, was predominantly Hispanic. Brown contested the adoption on the
grounds that he was not properly notified in accordance with the ICWA, and won both in trial court and
on appeal to the South Carolina Supreme Court, and in December 2011, the father was given custody of
the child. The case received extensive coverage in the national media, and spurred calls for Congress to
review and make amendments to the 1978 law. In October 2012, the adoptive couple petitioned the
Supreme Court of the United States to review the case. In January 2013, the court granted caertiorar
and heard the case in April. In June, the Supreme Court issued a 54 decision, holding that a non-
custodial father did not have rights under the ICWA, and sent the case back to the South Carolina
courts for further hearings on the issue. In July 2013, the South Carolina trial court finalized the
adoption of the child to the adoptive couple, but this was prohibited in August by the Oklahoma
Supreme Court. The stay was lifted in September 2013, and the child was turned over to her adoptive
parents the same month.12

11 Romi Agarwal, Adoption: Under Hindu, Muslim, Christian And Parsi Laws,
http://www.legalserviceindia.com/articles/hmcp_adopt.htm
12 Alan C. Eidsness and Jaime Driggs, Adoptive Couple v. Baby Girl, Hens Refron, http://www.hensonefron.com/wp-
content/uploads/2013/12/Adoptive-Couple-v.-Baby-Girl.pdf
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Chapter 4. - PROCEDURE FOR FILING AN ADOPTION DEED (For Indians)

Procedure in case of orphaned and abandoned children:

The Specialized Adoption Agencies shall produce all orphaned and abandoned children who are to be
declared legally free for adoption before the Committee within 24 hours of receiving such children,
excluding the time taken for journey. A copy of the report should be filed with the police station in
whose urisdiction the child was found abandoned. AChild becomes eligible for adoption when the
Committee declares the child legally free for adoption after completion of its inquiry. Such inquiry
should be conducted by the Probation Officer or Child Welfare Officer, who shall produce report to the
Committee containing the findings within one month. The Specialized adoption agency shall declare
stating that there has been no claimant for the child even after making notification in at least one
leading national newspaper and one regional language newspaper for children below two years of age

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and for children above two years, an additional television or radio announcement and notification to the
missing persons squad or bureau shall be made.Time stipulation: In case of abandoned child

below two years, such a declaration shall be done by CWC within a period of sixty days from the time
the child is found. For an abandoned child above two years of age, such a declaration shall be done
within the period of four months. A child must be produced before the Committee at the time of
declaring him/her legally free for adoption. Subsequently, the child shall be placed in a specialized
adoption agency or recognized and certified childrens home or in a pediatric unit of a Govt. hospital
followed by production of the child before the Committee within 24 hours. No child above seven years
of age who can understand and express his opinion shall be declared free for adoption without his/her
consent.

Procedure in the case of surrendered children:

A surrendered child is one who has been declared as such after due process of inquiry by the
Committee and in order to be declared legally free for adoption, a surrendered child shall be any
of the following:

1. Born as a consequence of non-consensual relationship,

2. Born out of wedlock or unwed mother

3. Whose one of the biological parents is dead and the living parent is incapacitated to take care

4. A child whose parents or guardians are compelled to relinquish him/her due to physical, emotional
and social factors beyond their control.

The Committee shall give effort for counseling of the parents, explaining the consequences of adoption
and exploring the possibilities of parents retaining the child and if the parents are unwilling to retain,
then such children shall be kept initially in foster care or arranged for their sponsorship. If the surrender
is inevitable, a deed of surrender shall be executed on a non-judicial stamp in presence of the
Committee. In case of surrendered child, two months reconsideration time shall be given to the
biological parent or parents after surrender before declaring the child legally free for adoption

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Chapter 5 DRAFT ON ADOPTION DEED:

THIS DEED OF ADOPTION is made theday of 12/7/2011 between:Mr. Narayan Rao and Mr. Tukaram
Padolikar (hereinafter called the Adoptive Father & Mother) of the one part AND Mr. Narayan Rao
(hereinafter called the Natural Father & Mother) of the other part.

Whereas the Adoptive Father and mother have two daughter/son (NAMED Rajat Padolikar and Swati Padolikar
aged about 15 and 11 years respectively).

Whereas the Adoptive Father and Mother are desirous of adopting a son/daughter whereas the said
_____________________.

Whereas the Natural Father and Mother have agreed to give his Daughter (Date of Birth 5/5/2010) who was
borne at Mumbai ) now aged 6 years (approx.) in adoption to the Adoptive Father & Mother. The Natural father
and mother have one son/daughter and one daughter, except___________.

Whereas ________________ of the Natural Father and Natural Mother of the said Anita has given her consent to
the giving of the said ____________________ in adoption to the Adoptive Father & Mother. In the evidence of

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consent she has signed the Adoption Deed.

Whereas the Adoptive Father & Mother is more than 38 years & 37 years old than the aforesaid Anita.

NOW THEREFORE, THIS DEED WITNESSES that the said Natural Father & Mother has before gathering of
the families and friends held at Mumbai at the time of birth actually given the said__________, his daughter, to
the Adoptive Father & Mother and the Adoptive Father & Mother have taken the said _________ Anita as his
Adopted daughter.

After the Adoption the said adopted daughter Anita is living with Mr. And Mrs. Padolikar (Adoptive Father &
Mother ).

IN WITNESS whereof the said Mr. Tukaram Padolikar and Mrs. Vinita Padolikar_ (Adoptive Father & Mother ),
Mr. Narayan Rao (the Natural Father & Mother ) and Mrs. Pooja Rao (wife of Natural Father) have hereunto
signed before the gathering present, two of whom have at the request of the parties and in their presence signed
as witnesses on the date hereinabove mentioned.

(ADOPTIVE MOTHER /FATHER )

WITNESSES:-

1- Mr. Mr. Narayan Rao


2- Mrs. Mrs. Pooja Rao
(NATURAL MOTHER/FATHER

Chapter 6. - CONCLUSION:
Adoption can be a most beautiful solution not only for childless couples and single people but also for
homeless children. It enables a parent-child relationship to be established between persons not
biologically related. It is defined as a process by which people take a child not born to them and raise it
as a member of their family. Adoption as a legal concept was available only among the members of the
Hindu community except where custom permits such adoption for any section of the polity. Only
Hindus were allowed to legally adopt the children and the other communities could only act as legal
guardians of the children.
A person can adopt a child under given provisons which are provided by the Constitution of India.
According to customs and norms, there are special uncodified laws for those perticular religions,
though most of the Acts are complicated. If a couple having two childer either biological or adopted,
they can adopt a thord child under Juvenile Justice Act, 2000. Sec. 29 of the Juvenile Justice Act, 2000
provides for the Child Welfare Committee. Sec. 41 (6) Juvenile Justice (Care & Protection of Children)
Act, 2000 that the court is empowered by Sec.41 of the Act to allow a child to be given in adoption to
the following persons:

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I.A person irrespective of his/her marital status,
II.The parents to adopt a child of the same sex irrespective of the number of existing biological sons or
daughters.
III. The childless couples.

Chapter 7. - BIBLIOGRAPHY:
ARTICLES:
1.Sangitha Krishnamurthy, How to adopt a child in india?, Times New Roman (Dec 18, 2012)
All adoptions in India are required to follow the procedure set out by the Central Adoption Resource
Agency (CARA). In case a childs biological parents decide to place the child in adoption, the laws
state that the Indian State is the guardian until such time as a family is chosen to parent the child. For
adopting a child to be legal, CARA procedures should be followed. Any hand over of a child in a
hospital to a family is not a legal adoption.

2.... , Adoption Laws in India, The Indian Express (April 25, 2016)
Simply put, adoption is the institutionalised process by which a child born of known or unknown
parentage acquires a new parentage. As a result of adoption, the child so adopted is considered to be the
natural-born child of the adopting parents. Adoption as a practice is not new. Traditionally, the key
reasons to adopt a child were- a desire for a son, lack of heirs, inability to conceive children. Today, the
reasons for adoption remain primarily the same, but also include humanitarian grounds such as giving a
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destitute child a home.

3.Thomas S. Walker, Adoption Ceilings and Modern Coarse Cereal Cultivars in India, Oxford
University Press (Sept. 29,2016)
The concept of, and evidence for, regional adoption ceilings is assessed for modem coarse cereal
cultivars in India. Adoption is defined as the proportion of total area of a given coarse cereal planted to
modem cultivars. Agroclimatic and soil differences are more important than disparities in infrastructure
in explaining the variation across regions in estimated adoption ceilings. Qualitatively different modem
cultivars from those now released are necessary to change regional adoption behavior. The results
support an agricultural research strategy that gives higher priority to more regionally oriented breeding
and testing programs in preference to the past emphasis on wide adaptation.

4.John D. Mayne, ADOPTION IN INDIA, Cambridge University Press ( Sept. 29,2016)


The difficulty arose from the fact that the religious law of Brahmanism has been injected into states of
society to which its vital principles are foreign. Its practices are in a general 'way imitated and
accepted, but without any belief in the reasonings on which it is founded. Hence variances are
continually arising which the authority of the courts is invoked to restrain or to punish. The present is a
remarkable instance of the sort.

5.Michael A. Koeni, Domestic Violence and Contraceptive Adoption in Uttar Pradesh India,
Population Council Wiley (Sept. 30, 2016)
This study examines the association between domestic violence and the subsequent adoption of modern
contraception in North India. Community norms that were more tolerant of domestic violence were, in
contrast, not a significant predictor of subsequent method adoption

BOOKS:
1.Susan Caughman, You Can Adopt: An Adoptive Families Guide, Paperback (August 11, 2009)
This book is full of practical, realistic advice from leading attorneys, doctors, social workers, and
psychologists, as well as honest, intimate stories from real parents and children.

2.Vinita Bhargava, Adoption in India: Policies and Experiences, Paperback (26 Jan 2013)
Adoption in India is a pioneering study on child adoption in India. Challenging some of the prevailing
theories on adoptive parenting through empirical data, It examines the issues that impinge on the

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development of adopted children in India. Importantly, this is the first book to give space to the voices
of children.

WEBSITES:

1.Prema Chandra, Adoption Laws: Need for Reform (2016)


http://www.jstor.org/stable/pdf/4412629.pdf
The adoption controversy that erupted in last few year drew attention to the many ills that clog the
wheels of adoption in India. But merely punishing the guilty will not ensure sweeping changes. At the
very outset, the needfor change must recognise the disparities that exist, as for instance, the procedural
differences between in-country vs inter-country adoption processes. It must also involve all actors in
the system including the children themselve.

2.Victor Groza, Adoption in India: Policies and Experiences (Sept. 25, 2016)
http://www.jstor.org/stable/pdf/10.1086/507778.pdf
Given that India is a multicultural, multilingual, and multireligious country, it is a huge undertaking to
identify all the complexities that affect adoption policy and practice throughout the country. Still, it is
critical to have research-based information on the issues in Indian adoptions.

3.Susan Bordo, MUSINGS Adoption (Sept. 24, 2016) http://www.jstor.org/stable/pdf/3810856.pdf


This article is the story of the author about adoption. The author has adopted kids under Hindu
Adoptions and Maintenance Act 1956 and she is telling her story about adoption.

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DRAFT OF AN ADOPTION DEED:

THIS DEED OF ADOPTION is made theday of between:. and (hereinafter called the
Adoptive Father & Mother) of the one part AND ..(hereinafter called the Natural Father & Mother)
of the other part.

Whereas the Adoptive Father and mother have two daughter/son (NAMED .and .aged about . And
..years respectively).

Whereas the Adoptive Father and Mother are desirous of adopting a son/daughter whereas the said
_____________________.

Whereas the Natural Father and Mother have agreed to give his Daughter/ Son (Date of Birth ) who was
borne at Mumbai ) now aged.(approx.) in adoption to the Adoptive Father & Mother. The Natural father and
mother have one son/daughter and one daughter, except..

Whereas.. of the Natural Father and Natural Mother of the said has given her consent to the
giving of the said . in adoption to the Adoptive Father & Mother. In the evidence of consent she has
signed the Adoption Deed.

Whereas the Adoptive Father & Mother is more than and old than the aforesaid

NOW THEREFORE, THIS DEED WITNESSES that the said Natural Father & Mother has before gathering of
the families and friends held at at the time of birth actually given the said, his daughter, to the
Adoptive Father & Mother and the Adoptive Father & Mother have taken the said as his Adopted
daughter.
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After the Adoption the said adopted daughter .is living with .(Adoptive Father & Mother ).

IN WITNESS whereof the said and .._ (Adoptive Father & Mother ), (the Natural
Father & Mother ) and .(wife of Natural Father) have hereunto signed before the gathering present, two
of whom have at the request of the parties and in their presence signed as witnesses on the date hereinabove
mentioned.

(ADOPTIVE MOTHER /FATHER )

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