Adoption of a child

A Hindu widow is having a daughter aged 15. She remarries. Whether she can give in the adoption of her above-said daughter born through her first husband to his second husband. What are all the conditions? Please say the relevant provisions, authorities. (The parties are Hindus, in-country adoption).

Widow’s right to adoption (either giving or taking) is governed by the Hindu adoptions and maintenance act 1956 (hereinafter said the Act). According to section 5 (1) of the Act which lays down :

“No adoption shall be made after the commencement of this Act by or to a Hindu except under the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

According to section 9(3) of the Hindu adoptions and maintenance act 1956, a mother may give the child (you should read as a daughter) 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.

A mother can give her child in adoption even if father, before his death expressed himself categorically that his child should not be given in adoption.

According to section 11 (vi) of the said act, “the child to be adopted must be 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 to the family of its adoption.”

In Sitabai & Anr vs Ram Chandra AIR 1970 Supreme Court; it is held by the Supreme Court that if father has died at the time of adoption his mother has absolute right to give her child in adoption.

In Teesta Chattoraj vs Union Of India AIR 2012 Del, it is held by the Delhi High Court that the law is very clear that right to give a child in adoption cannot be exercised by either of the parents of the child “save with the consent of the other unless one of them has died or has deliberately 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.”

The judgment of Sitabai vs Ramchandra is reiterated by the High Courts in Saluja Mukesh Kumar vs Union Of India And Another AIR 2013 P&H; Mrs.B.S.Deepa vs The Regional Passport Officer AIR 2015 Mad;

These requirements which must be followed by the parties in giving a child in adoption:

  • The child must be a Hindu.
  • Two persons cannot adopt one child.
  • A child must below the age of 15 years unless customs prevailing in the family permits the adoption of a child of more than 15 years.
  • The difference of age between child and adoptive father must be more than 21 years.

In Kartar Singh vs Surjan Singh (AIR 1974 SC 2161) the Supreme Court has held that the ceremony of giving or taking a child in adoption is indispensable in modern Hindu law.

In your case, your wife can give her child in adoption. A person cannot adopt his child. The word “father” does not include the adoptive father and stepfather. You are the stepfather for her daughter so you can take her daughter in adoption.

Such adoption will be valid. However, no ceremony is necessary but you should execute a deed and get its registration. This deed is relevant evidence and an admissible proof of the genuineness of adoption.

Public auction

Whether a public auction can be treated as a valid public auction if it is not patronized by the public or not participated by the public.

In the instant matter, State Bank of India organized a public auction which was not patronized by any public participation /void of public participation. In absence of any public bid/participation, SBI submitted its bid and declared the sale confirmed in its favour.

Now SBI has been claiming that it has purchased the assets in the public auction whereas the owner of the assets is alleging that SBI has fraudulently grabbed its assets on the excuse of a fabricated public auction sale.

The borrower is suffering since last ten years. Further, the bank is also holding movable assets of the borrower since last ten years unsold, unattended and recently issued a recovery certificate without setting off, of the value of the movable assets. Can a criminal suit be filed against the bank?

According to SARFAESI Act, Bank is bound to secure maximum sale amount of secured assets. There is some mandatory provisions in the SARFAESI Act regarding the sale of secured assets like valuation of the property from an approved valuer and in consultation with the secured creditor, fixing the reserved price of the assets, notice to the borrower, appearance of the borrower at the public auction, organize public auction after giving due publication in at least 2 leading newspapers and one of them should be in vernacular language.

If a bank fails to comply with these mandatory provisions the aggrieved person can file an appeal, under section 17 SARFAESI Act, before the Debt Recovery Tribunal. The aggrieved person can seek remedy like cancellation of certificate of sale issued under section 6 SARFAESI Act, set aside the public auction or revaluation of secured assets etc.

The section 34 SARFAESI Act, puts a Bar on Civil Courts in entertaining suits in respect of the matter in which the Bank has initiated a proceeding under SARFAESI Act, 2002. Because of many judgments of constitutional courts from time to time under Article 32, 136 and 227 of Constitution of India, it is settled that the Civil Court has no jurisdiction to entertain any proceeding or suit in a matter in which the Bank has initiated proceedings under SARFAESI Act, 2002.

In Mardia Chemicals and others v. Union of India and others (2004) 4 SCC 311, Central Bank of India v. State of Kerala and others (2009) 4 SCC 94, United Bank of India v. Satyavati Tondon and others (2010) 8 SCC 110, Indian Overseas Bank and others v. Ashok Saw Mill (2009) 8 SCC 366. it is held by the Supreme Court that putting a bar on the jurisdiction of the civil court (section 34) to entertain any petition regarding a dispute arising out of the procedure adopted under SARFAESI Act is constitutional and valid.

You cannot file a criminal case against the malpractice of the bank regarding the auction of secured assets. You should file an appeal before the DRT under section 17.

Sending offensive messages

My wife has been downloading my photos from social networking websites and sending them to my brother in law with vulgar comments. She has unnecessarily started posting false statements claiming to be made by me as well. The communication I have had with her is only for 10 days after my marriage as she left to her mother’s house after that. We have not had any conversation as such in these 10 days because I had to report back to work.

Please tell me what to do? She has been accessing my social database and downloading my photos. I do not want to become a victim of false statements. I want to take legal action against her for accessing my social network, provoking my in-laws against me and creating problems in my married life. She has also made extremely disgusting and rude statements about me and my husband not having a child yet and has called my husband and me bad words (like buffalo and other animal names) in her WhatsApp messages to my brother in law. My brother in law has not responded to her messages. Please advise me about the best legal option.

The individual in question has committed the offences of Defamation and Intentional Insult under section 500 IPC and section 504 IPC, respectively. While their actions would have been punishable under section 66A of The Information Technology Act 2008, this section was deemed unconstitutional by the Supreme Court of India in the case of Shreya Singhal v. Union of India (2013) 12 SCC 73. Therefore, no complaint can be filed for an offence punishable under section 66A of the IT Act.

If you have posted photos or information for public access on Facebook, you cannot prevent this individual from accessing them. However, you have the right to restrict access to selected individuals, and Facebook provides privacy settings for this purpose.

The individual's act of posting false statements claiming to be made by you constitutes an offence punishable under section 66D of the Information Technology Act, which carries a sentence of three years of imprisonment and a fine up to one lakh rupees. If they have hacked your password or other information, you can prosecute them under section 66C of the IT Act.

To pursue legal action, you should file a complaint under section 200 of the Code of Criminal Procedure for the offences punishable under section 500/504 IPC and section 66D of the IT Act. The offences under IPC are non-cognizable and bailable, while the offence under the IT Act is cognizable and bailable.

To prove the offence, you should collect evidence such as printouts and screenshots of relevant messages and images. This evidence is admissible under section 65B of the Indian Evidence Act and is necessary for the court to take cognizance of the offence.

The Bangalore Metropolitan Magistrate has jurisdiction to try the offences, as per section 182 of the CRPC. The court may order an investigation under section 202 CRPC or issue a summon/warrant to the accused under section 204 CRPC.

If the accused has stopped coming to court, you may file an expedite petition before the High Court under section 483 of the CRPC for an expeditious hearing of the case. The court may direct the case to be disposed of within a stipulated period, without giving unnecessary adjournments to the accused.

Sale of property by POA holder

I purchased Plot in 2010 with power of attorney. The power of attorney was given to some person by the original owner. I started construction in 2016 on the plot. Now the thing is coming that the original owner is denying that he has not given power of attorney to any person and the signature done on POA is not his signature. He has decided to launch FIR in the police.

Please let me know what will be the effect on me if POA is really fake. All original documents with channels are with me. As I am the bona fide purchaser now legally, what consequences can occur? And what should I do as my advocate is telling not to fear all documents are up to date.***Please give your advice.

A Power of Attorney (POA) is a formal arrangement where one person, the principal, authorizes another person, the attorney-agent, to act on their behalf and in their name. Any act performed by the attorney within the authority of the POA is legally binding on the person granting it.

In the case presented, it appears that the seller had a valid POA at the time of transfer which was executed by the owner of the plot. It is not mandatory that only the owner can transfer their property, as any person authorized by the owner can also transfer the property through a POA.

However, it is important to note that a registered sale deed is the only valid instrument for the transfer of property. The Supreme Court of India has held in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana that the transfer of property by executing a general power of attorney (GPOA) in favor of the purchaser is invalid.

If the sale deed has executed but the POA is found to be fake, the owner would have to compensate the bona fide purchaser in lieu of transferring the plot back to them. However, as a bona fide purchaser you conducted proper examination and possessed all relevant documents, you have a better right in the property than the seller.

If the POA was registered, it would support your right to the property in a more affirmative way because the court is bound to presume the genuineness of the registered POA. Evidence showing that the consideration was accepted by the real owner is also relevant evidence to establish your title to the property because it is treated as implied consent about the contract.