Father can adopt his own ‘illegitimate’ biological child, Allahabad High Court rules

The court noted that upon an overall assessment of the material, both courts concluded that the transaction was not genuine and that the sale deed had been fraudulently obtained.

Trial court upholds adoption

The dispute concerned agricultural land belonging to a man who was claimed to be the biological father of the respondent. The respondent claimed that he was born during his mother’s marriage to another man and was allegedly adopted by his biological father in 1970.

Justice Arun Kumar said that the evidence accepted by both trial courts established that the adoption ceremony had taken place.

He alleged that in 1973, the landowner, his biological father, was taken away on the pretext of medical treatment and a sale deed was subsequently obtained from him fraudulently. He therefore filed a suit seeking cancellation of the sale deed.

The defendants disputed the adoption and claimed that the sale deed had been voluntarily and validly executed. They claimed that the respondent is not the adopted son of the landowner; therefore, he had no right to maintain the suit. However, the trial court held that the adoption was proved and that the sale transaction was fraudulent. The first appellate court upheld these findings, following which the defendants approached the high court in a second appeal.

Appearing for the petitioners, advocate Ashish Kumar Singh, along with Jitendra Kumar Srivastava, S K Gaur and Sunil Kumar Gaur, submitted that the mother could not have given the child in adoption without the consent of his biological father, as required under Section 9 of the Hindu Adoptions and Maintenance Act, 1956.

Appearing for the adopted son, advocate J P Pandey argued that he had been validly adopted in 1970 and therefore had the right to challenge the subsequent sale of the disputed agricultural land.

Biological father can adopt son

The court held that there was no absolute bar under the Hindu Adoptions and Maintenance Act, 1956, against a Hindu man adopting his own “illegitimate” biological son. The fact that he was the biological father did not, by itself, invalidate the adoption.

It noted that the law distinguishes between the capacity to give a child in adoption and the capacity to take a child in adoption. Sections 9 and 6-7 operate in different fields, and the Act contains no express provision disqualifying a Hindu man from adopting his biological but “illegitimate” son.

The court found that the requirement of the child’s actual giving and taking was particularly important. Evidence accepted by both trial courts established that the adoption ceremony had taken place and that there was an intention to create the legal relationship of adoptive father and son.

It held that the absence of a formal adoption deed was not fatal, since the adoption took place in 1970 and the later requirement concerning documentary proof applied prospectively to adoptions made from January 1, 1977.

On the sale deed, the court observed that registration alone does not make a transaction immune from challenge. A civil court can examine whether a registered document was genuinely and voluntarily executed or was procured through fraud, undue influence or other circumstances affecting consent.

The court relied on the inconsistent versions given by the defendants’ witnesses regarding payment of consideration, along with the circumstances in which the landowner was taken to the registry office and evidence concerning his condition. These factors supported the lower courts’ conclusion that the sale deed had been fraudulently obtained.