4.1 Concept and Scope of Adoption

4.
1 Concept and Scope of

1
Adoption
Unit 4
Adoption
Unit 4 Adoption 11/19/2022

2 Concept and Scope of Adoption
 Adoption is the one method of acquiring legal parenthood that does

not require one or other of the parents to have a biological link
(genetic or gestational) with the child.
 It permanently extinguishes the legal parenthood of the child’s
original parents (usually the genetic/biological parents) and replaces
them with the adoptive parents (the social/intended parents) as if the
child had been born their legitimate child.

 Adoption thus provides unique recognition of the value of social

parenthood.
 The absence of a genetic tie between parent and child means,
however, that this method of acquiring legal parenthood is subject to
the most detailed and rigorous scrutiny by the state.

 an adoption order completely terminates any legal relationship

between the biological parents and the child.
 ….adoption is intended to effect a permanent change in status and
as such requires societal recognition either through legal or
religious sanction. (wiki)
 examples, Krishna, Sita etc. in Hindu religion. Kunti was an
adopted child by her childless uncle Kuntibhoja.

 Adoption involves the termination of child’s legal rights and

duties toward his natural parents and the substitution of similar
rights and duties toward his adoptive parents. It necessitates a
move, sanctioned by the law and in accordance with statute from
one family to another …..the adopted person has the same rights and
duties as a natural son. (Curzon)

 Transferring biological parent’s legal rights and duties to adopting

persons.
 Termination of a child’s legal rights and duties toward his biological
parents.
 Substitution of rights and duties toward adoptive parents.
 Legal and formal process is necessary.
 Modern systems of adoption, tend to be governed by
comprehensive statutes and regulations.
 Traditional Hindu law required religious ceremony.

 Article 21 of the United Nations Convention on the Rights of the

Child (UNCRC) which provides that any state recognizing or
permitting the system of adoption must ensure that the best
interests of the child are the paramount consideration.

 Forms of adoption
 Open adoption : is a form of adoption in which the biological and
adoptive families have access to varying degrees of each other's
personal information and have an option of contact.
 In Open Adoption, the adoptive parents hold all the rights as the
legal parents, yet the individuals of the biological and adoptive
families may exercise the option to open the contact in varying
forms: from just sending mail and/or photos, to face-to-face visits
between birth and adoptive families.

 The adoptive parent shall have to provide facility to the adopted

child to visit to or make correspondence with his/her biological
father, mother from time to time. [section 183, Civil code 2074]
Section 6(4) and 6(5), Children’s Act 2075.
 Closed adoption is confidential or secret adoption. A closed
adoption means that there is no contact whatsoever between the
birthparents and the adoptive parents and child after
the adoption takes place. Disclose it with an adopted child.

 In Nyaya Bikasini there are 12 types of sons : -

 (1) one who is born with a married wife of fellow caste from one's
own seed
 (2) One who is born with a wife of a brother and from one's own
seed
 (3) Son of the daughter
 (4) one who is born to unmarried girl by own-self (out of wedlock)
 (5) one who is born after marriage with a woman who was already
pregnant at the time of marriage

 (6) One who is born and grown up secretly out of secret love affairs
 (7) One who is born to a woman who has entered into second
marriage
 (8) One who is given up by the parents (9) one who is found all of
sudden
 (10) one who is purchased paying money to his parents
 (11) One who is taken care of as good as a son
 (12) One who has offered himself to serve him as a son.

 Out of these twelve types of sons, the six ones are entitled to get
share of their father’s property and the other six are not so entitled.
Among them the formers are superior ones and latter fall under
lower category.
 As per shashtras there are 14 types of sons : (1) Asura, (2) Dattaka,
(3) Kritrima, (4) Kshetraja, (5) Gudhaja, (6) Kanina, (7) Putrika
Putra, (8) Sahodhaja, (9) Krita, (10) Kritrima, (11) Svayamadatta,
(12) Puanarbhava, (13) Apviddha, (14) Nishad.
 Of all the above fourteen, the first two namely Aurasa(natural) and
Dattaka (adopted) are the approved and mostly accepted and the rest
of twelve are not qualified.
 Smritis deal with a host of subjects such as domestic rituals, customary rites,
inheritance etc. Adoption is a breach of Vyavahara portion. The Smritis like
Manu, Yajnavalkya, Kapila, Lohita, Angira and Ankara strongly discuss
about the law of adoption and inheritance of the adoption child.
 Anandadeva has compiled a vast digest called Smrtikaustubha divided into
several sections. The portion of Samskarakaustubha on the subject
of adoption is frequently cited as Dattadidhiti.
 In Griha sutras long list of the qualification of the parents and the child to be
adopted.

 Adoption is a process to incorporate a child permanently into a

family with all the rights of a natural child, in which he was not
been born.
 Traditionally, a child was adopted for temporal and spiritual
purposes and more recently, to satisfy the emotional and parental
instincts of the adopters.
 Manu says, “by a son a man attains victory over all people, by a
son’s son he enjoys immortality, and afterwards by the son of that
grandson he reaches the solar abode.

 Adoption in Nepal
 If a person accepts a son or daughter of another person as his or her
son or daughter, such a son or a daughter shall be deemed to be an
adopted son or daughter. (sec 169)
 Under different headings it has arranged adoption :
 (1) Conditions for adopting son or daughter
 (2) Cannot effect adoption
 (3) Adopted son and daughter’s rights and obligation
 (4) Termination of adoption.

 Conclusion : Adoption is a very different way of ‘becoming a

parent’, bringing great rewards, but also many challenges.
 The law has supported and protected these sometimes fragile family
units by treating them in every way as if they were an ‘ordinary’
natural family.

17
4.2 Condition of Adoption
Unit 4
Adoption

18 Condition of Adoption
 (1) Civil code has stipulated conditions for adopting son or

daughter.
 husband or wife judicial separated are allowed to adopt son or
daughter. But if the son or daughter they cannot adopt son or
daughter respectively. They have to adopt daughter or son
respectively.
 No person having his or her own son shall adopt a son and no
person having his or her own daughter shall adopt a daughter
pursuant to this Chapter. (sec 171(1))

 Under following conditions a person may effect adoption:

 No child even after 10 years of marriage.
 An unmarried of 45 years of age, a widow, divorcee woman or
judicially separated woman, having no son or daughter,
 An unmarried man of 45 years of age, a widower, divorcee or
judicially separated man, having no son or daughter.

 But a person cannot effect adoption :

 One who is of unsound mind,
 One who is convicted by the court of a criminal offense
involving moral turpitude,
 One who does not have financial capacity to afford maintenance,
health care, education, sports facility, entertainment and care of
the minor. (sec 172)

 But husband or wife living in a joint family must obtain each

other's consent. (sec 172)
 While effecting an adoption a written consent of both father and
mother of such a child, and of the surviving father or mother must
be obtained by the adopter. (sec 175)
 But if father and mother are judicially separated or divorced, the
adopter shall obtain consent of protector with whom the child has
been living.

 (2) Adoption of son or daughter cannot be effected

 Who has completed 14 years of age,
 Who is the only son or daughter,
 Who has been once adopted as a son or daughter,
 Who is not a citizen of Nepal (sec 175)
 If an adopter is junior in relation and non-Nepali resident and have
age difference as 25 years are not allowed to effect adoption.

 if the person to be adopted is a person within the relation of three

generations or a son or daughter born to the ex- husband of the wife,
that person may be adopted even though he or she has completed
fourteen years of age.
 The age difference between the adopter and the adoptee shall be at least
25 years, but there will be no age restriction to the adoption of a person
within the relation of three generations. (sec 174)

 Procedure for adoption

 If a person is desirous of adopting a child, he or she shall make a
petition to the concerned court, along with a deed of adoption, in
fulfillment of the legal requirements.
 Upon inquiry of a deed of adoption the Court may effect for
adoption.
 But if Court finds it cannot give permission then it issues an order
accordingly. (sec 177)

25
4.3 Status of Adopted Children
Unit 4
Adoption

26 Status of Adopted Children
 (3) Responsibilities of adopted son or daughter

 The rights, powers, obligations and responsibility of an adopted
child shall be equal to that of the biological son or daughter of the
adoptive parents. [Section 178(1)]
 Even if a son or a daughter is born to a person who has already
adopted a child, the status of such adopted child as equal to that of
the biological child. [Section 178(2)]

 Responsibilities of adopted son or daughter

 Where adoption was effected by husband or wife living separately
after obtaining judicial separation and if the husband and wife live
jointly after effecting adoption, it shall be deemed to have been
effected by both the spouse (Section 176).
 Children’s Act 2075, chapter 3 and 5.

 An adopted son or daughter shall not be entitled to claim partition
share in the property belonging to his or her biological father and
mother. But they have rights over their adopting parents property.
 But if the adoption is annulled they can get partition share from
their biological parents.
 And if they have already obtained partition share at the time of
effecting adoption, they may receive such property as well. (sec
180)


 An adopted son or daughter may use the surname of either or both
of the adoptive father and mother.
 But if adoption is annulled then they can use their biological parents
surname. (sec 179)
 Adopting parents has to arrange maintenance, education, health,
sports etc. properly and if they don’t fulfill their obligations,
adopted son or daughter may take partition share and live separately
(sec 181).
 Visitation right :
 The adoptive person shall provide facility to the adopted son or
daughter to make visits to and to correspond, with his or her
biological father and mother, from time to time. (sec 183)

 Responsibilities of adopting parents

 Make arrangements for the maintenance, health care and care of the
adoptive person according to his or her reputation and capacity; to
protect, and manage the property of the adoptive person; to protect
the rights and interests of the adoptive person in accordance to their
finance and reputation.
(sec 181)

4.4 Conditions for Invalidating
32
Adoption
Unit 4
Adoption

33 Conditions for Invalidating Adoption
 Void adoption : One who is of unsound mind,

 One who is convicted by the court of a criminal offense involving
moral turpitude,
 One who does not have financial capacity to afford maintenance,
health care, education, sports facility, entertainment and care of the
minor.
 One who completes fourteen years of age (sec 173)
 One who is the only son or daughter

 One who is adopted for once adoption is annulled according to law.

 One who is in higher degree of relationship than the person adopting
the son or daughter.
 One who is not a citizen of Nepal.
 One who has age difference between adopted child and adoptive
parent as less than 25 years.
 If there is no written consent on adoption.
 The above adoption is ipso facto void if adopted in
contravention.
 Voidable adoption : adopted son or daughter can annul adoption, if

an adoptive person fails to provide maintenance, education etc. in
accordance to his/her capacity shall be voidable but if they have
taken partition share, such adoption shall not be annuled.
 Adoptive parents can annul adoption, if the adopted son or daughter
fails to fulfill the obligation,
 If the adopted son or daughter expels adoptive parent from home or
subject to mental or physical torture,
 Misuses property
 If adopted son or daughter leaves adoptive parents or lives

separately without consent for 3 years or more. But this condition
shall not apply to married adopted daughter. (sec 185)
 Adoption by foreigners shall be prohibited under condition
stipulated in section 192(2).

 Termination of adoption : if adoption is annulled as per above

conditions than the relationship of adoption is terminated.
 If the relationship is terminated than the entitlements, rights and
obligations vested in him or her in the capacity of adopted son or
daughter shall also be terminated.
 Provided that facilities already enjoyed, rights acquired or exercised
and obligations fulfilled in the capacity of adopted son or daughter
during the validity period of adoption shall not be prejudiced. (sec
186)

 Limitation : An aggrieved person may file a complaint within 1

year from the date of carrying out of such an act. [section 187]

39
4. Adoption by Foreigners
Unit 4
Adoption

40 Adoption by Foreigners
 Provision concerning inter-country adoption to be deemed

established: If any foreigner accepts a child of Nepali citizen or a
child of a foreigner residing in Nepal accepted as an adopted son or
an adopted daughter , shall be deemed to be a provision of an inter-
country adoption. [section 188]
 But if a foreigner effects adoption without obtaining a permission
from GON shall not be allowed. (sec 189)
 Only citizens of those country listed in the Nepal Gazette can adopt
a son or daughter.

 GON shall have to consider whether or not the best interest of the
child is secured, his/her human rights shall be protected and such
child shall not be abducted, sold, trafficked or abused.
 adoption shall be granted only if it is found to be appropriate to
grant a permission to a foreigner to adopt a child. [section 190]

 Permission may be granted to a foreigner to adopt any of the

following children
 (a) an orphan child whose both parents are dead and have stayed
in a children’s home at least for a period of 6 months
 (b) a child stayed in children’s home for a period of 6 months
and voluntarily abandoned child. [sec 191]

43
 Explanation: Children’s home: welfare home established in accordance to
law with the objective of protecting rights of the children.
 Orphan child: following child certified as an orphan by DAO.
 Unclaimed child found by police whose father or mother not known.
 Child left unclaimed in a hospital or health institution.
 Child whose parents are not traced out.
 Child whose both parents are dead and who has no property for
maintenance.

 Eligibility : Permission may be granted to the following foreigner for

the adoption of any child of a Nepali citizen or of a foreigner domiciled
in Nepal
 A couple from whom no child is born even after ten years of their
marriage,
 An unmarried woman, a widow, divorcee woman or a judicially
separated woman who has completed 45 but not 55 years of age,
having no son or daughter,
 An unmarried man, a widower, divorcee or a judicially separated
man who has completed 45 but not 55 years of age, having no son
or daughter.
 no permission may be granted to the following foreigner for

adoption:
 (a) One who is of unsound mind,
 (b) One who is convicted of a criminal offense involving moral
turpitude, by a court of Nepal or the concerned country.
 where the law of a foreign country provides that a citizen of that
country may adopt more than one child, s/he may adopt a child
despite that s/he has a child.

 A person of the country that prohibits a Nepali citizen from adopting

a child or provides discrimination between the rights of an adopted
son or a daughter and the rights of naturally born son or daughter
shall not be permitted to adopt a child from Nepal. (sec 192)

 Provision relating to Inter-country Adoption Board : The
Government of Nepal may, by a notification in the Nepal Gazette, form
an Inter-country Adoption Management Development Board so as to
act as the central agency for the purpose of making recommendation for
granting permission to a foreigner for adoption of a child or designate
any government body to perform such function. (sec 193)
 ICAB is under Ministry of Women Children and Social Welfare of
GON
 Inter-country Adoption Development Board (Formation) Order, 2067 (2011)

48
 In 2009 Nepal has signed on CONVENTION ON PROTECTION OF

CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY
ADOPTION (Hague convention).
 In 2010, Inter-country Adoption Management Development Board established
to make Nepal's Inter-country Adoption system more ethical and transparent.
ICAB is working as a Central Authority for inter country adoption. A high
level board was established with the representation of pediatrician and
representatives from child right activist in the board.
 http://www.icab.gov.np/about#:~:text=Inter%2Dcountry%20Adoption%20Management
%20Development,code%20governs%20the%20adoption%20laws.

 Procedure : A foreigner or couple qualified and desirous of

adopting a Nepali minor or a minor of a foreigner domiciled in
Nepal shall make an application to the Board, accompanied by the
following documents, through the embassy of his or her country in
Nepal and where no such an embassy is situated in Nepal, the
embassy designated for Nepal or the central agency of the
concerned country which gives permission for adoption:

 (a) The applicant's birth registration certificate,

 (b) The applicant's recently taken photograph,
 (c) A photocopy of the applicant's passport
 (d) A document certifying the applicant’s marital status,
 (e) A certificate issued by a licensed medical doctor on the
applicant’s health,

 (f) A certificate issued by the governmental body of the concerned

country, indicating that the applicant is of good character and has
not been convicted by a court of a criminal charge involving moral
turpitude,
 (g) A document that certifies the applicant's property and income
source,
 (h) The applicant's social, psychological and home study report,
 (i) Age, sex and other details of the child sought for adoption,

 (j) A letter of consent issued by GON,

 (k) law on adoption of that country,
 (l) A letter of guarantee issued by the government of the concerned
country or by the embassy of that country based in Nepal or
designated for Nepal indicating that according to the law of the
applicant’s home country, the status of the person to be adopted is
equal to that of the applicant’s biological son or daughter, (sec
194)

 (m) A letter of guarantee issued by the government of the applicant's

home country, embassy of that country based in Nepal or designated
for Nepal indicating that, according to the law of the applicant’s
home country, the applicant is qualified to make adoption and has
the financial capacity to bear all responsibilities including
maintenance, health care, education and protection of the minor to
be adopted.

 selection committee : The Government of Nepal shall form a

selection committee, by a notification in the Nepal Gazette, for the
purpose of making recommendations to the Board as to which of
minors may be appropriate for adoption by any foreigner or foreign
couple, after selecting the person or couple desirous of making
adoption, and the minor. (sec 195)
 Board shall make recommendation by selecting person effecting
adoption (sec 196)

 If the Board finds it appropriate to grant a minor as recommended

for adoption by a foreigner, it shall make according
recommendation to the Government of Nepal.
 GON grant permission on the basis of recommendation.
 GON issues certificate of adoption
 After the issuance of certificate inter-country adoption shall be
effected.

 But if biological parents don’t want to give away their child for
adoption than such child shall not be adopted.
 Adopting parent shall come in person to collect the child. If they are
absent than the deed shall be cancelled.
 After the permission has been granted than the information is given to
the central agency responsible for inter-country adoption situated in the
country of the adoptive person and also to the embassy of the concerned
country designated for Nepal,

 A foreigner or couple making application for adoption may, if not

satisfied with any decision made by the Government of Nepal, make
an appeal to the concerned High Court. (sec 197)
 Selection Committee may accord priority to those applicants
who have applied for the adoption of minors in need of special
care and select families to that effect. (sec 198)

 Special provision relating for adoption : if any renowned foreign

citizen desires to adopt any as referred to in Section 191, he/she may
make an application to the Board, along with a formal
recommendation by the head of state, head of government or foreign
minister of the concerned country. (sec 199)
 renowned foreign citizen - Head of state or head of government of a foreign

country; Chief of an international intergovernmental organization; noble prize
laureate; person or entrepreneur who has an income of more than three hundred
thousand US Dollars a year.

 Details to be forwarded : A foreigner who makes adoption shall

each year forward details relating to the arrangements made for the
maintenance, education, health and care of the adopted minor until
such minor attains the age of majority according to the law of the
concerned country. First every 6 months for a period of 2 years
and thereafter every year to the GON through the Nepali Embassy
or Consulate based in his or her country or Nepali mission abroad,
and if such mission is not situated there, through the Embassy of
Nepal related to such a country. (sec 200)

 Monitoring : The Board may itself monitor as to whether a

foreigner who has adopted a Nepali minor has made arrangements
for the maintenance, health, education and care of such minor until
the minor attains the age of majority, or for that purpose, form, as
per necessity, a sub-committee consisting also of a representative of
the Nepali Embassy or Consulate based in the concerned country.
(sec 201)

 Case may be filed : A case may be filed in the court of the
concerned country for the annulment of adoption, by a minor
adopted as an adopted son or daughter within one year after the date
on which the minor attained majority, on the grounds of failure to
make arrangements for proper maintenance, health, education and
care of him or her, and by the Nepali Embassy or Consulate based in
the country where the adopted son or daughter is residing within one
year after the date on which the adoptive person failed to make such
arrangements. (sec 202)

 Limitation : If a separate statute of limitation for making a lawsuit

is specified, the lawsuit may be made accordingly, and if such
statute of limitation is not specified, a person aggrieved from any
act committed or action taken under this Chapter may make a
lawsuit within 1 year after the date on which such an act was done
or action was taken. (sec 204)

 Conclusion : adoption process has been made comprehensive in

civil code 2074. Example, establishment of Board, provision
relating to selecting adoption, arrangement of monitoring, details of
adoptive parents, age and eligibility of adoptive parents, likewise,
eligibility of adopted child are considered as mandatory provisions.
 This explains irrespective of heavy critisism on adoption process in
Nepal, government at this juncture has taken adoption process
seriously and have stipulated provisions that is for the “best
interest of the child”.

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4.

1 Concept and Scope of

Unit 4 Adoption 11/19/2022

 Adoption is the one method of acquiring legal parenthood that does

Unit 4 Adoption 11/19/2022

 Adoption thus provides unique recognition of the value of social

Unit 4 Adoption 11/19/2022

 an adoption order completely terminates any legal relationship

Unit 4 Adoption 11/19/2022

 Adoption involves the termination of child’s legal rights and

Unit 4 Adoption 11/19/2022

 Transferring biological parent’s legal rights and duties to adopting

Unit 4 Adoption 11/19/2022

 Article 21 of the United Nations Convention on the Rights of the

Unit 4 Adoption 11/19/2022

Unit 4 Adoption 11/19/2022

 The adoptive parent shall have to provide facility to the adopted

Unit 4 Adoption 11/19/2022

 In Nyaya Bikasini there are 12 types of sons : -

Unit 4 Adoption 11/19/2022

Unit 4 Adoption 11/19/2022

Unit 4 Adoption 11/19/2022

 Adoption is a process to incorporate a child permanently into a

Unit 4 Adoption 11/19/2022

Unit 4 Adoption 11/19/2022

 Conclusion : Adoption is a very different way of ‘becoming a

Unit 4 Adoption 11/19/2022

Unit 4 Adoption 11/19/2022

 (1) Civil code has stipulated conditions for adopting son or

Unit 4 Adoption 11/19/2022

 Under following conditions a person may effect adoption:

Unit 4 Adoption 11/19/2022

 But a person cannot effect adoption :

Unit 4 Adoption 11/19/2022

 But husband or wife living in a joint family must obtain each

Unit 4 Adoption 11/19/2022

 (2) Adoption of son or daughter cannot be effected

Unit 4 Adoption 11/19/2022

 if the person to be adopted is a person within the relation of three

Unit 4 Adoption 11/19/2022

 Procedure for adoption

Unit 4 Adoption 11/19/2022

Unit 4 Adoption 11/19/2022

 (3) Responsibilities of adopted son or daughter

Unit 4 Adoption 11/19/2022

 Responsibilities of adopted son or daughter

Unit 4 Adoption 11/19/2022

Unit 4 Adoption 11/19/2022

 Responsibilities of adopted son or daughter

Unit 4 Adoption 11/19/2022

 Responsibilities of adopting parents

Unit 4 Adoption 11/19/2022

Unit 4 Adoption 11/19/2022

 Void adoption : One who is of unsound mind,

Unit 4 Adoption 11/19/2022

 One who is adopted for once adoption is annulled according to law.

 Voidable adoption : adopted son or daughter can annul adoption, if

 If adopted son or daughter leaves adoptive parents or lives