PUREWAL

 Interim Decision #2118




                         MATTER OF PUREWAL

                      In Visa Petition Proceedings
                                A-19863293

                  Decided by Board January 7, 1972

Under the Hindu Adoptiond and Maintenance Act of 1956 of India, applicable to
 any person who is a Sikh by religion, the adoption of a son is invalid if the
 adoptive father or mother has a son (whether by legitimate blood relationship
 or by adoption) living at the time of the adoption.

  This is an appeal from a decision of the District Director denying
a visa petition filed to accord the beneficiary status as the brother
of a citizen of the United States pursuant to section 203(a)(5) of the
Immigration and Nationality Act. The District Director concluded
that the petitioner has not established that the beneficiary is her
brother within the meaning of the Act. We affirm the decision and
dismiss the appeal.
   The petitioner is a 35-year-old married female, a native of India,
who became a naturalized citizen of the United States on September 19, 1963. The beneficiary is an unmarried male, who was born
in India in January 1948. The petitioner claims that the beneficiary is her brother because of the adoption of the beneficiary by the
petitioner's father. In support of this claimed relationship, the
petitioner presented in evidence a document dated January 10,
1957, which purports to effect an adoption of the beneficiary by the
petitioner's father.
  The issue in this case is whether there was a valid adoption. To
determine the validity of the adoption, we must look to the
applicable adoption law. Inasmuch as the adoption was supposed
to have been accomplished in India, we must look to the provisions
of the Hindu law.
  The Hindu Adoptions and Maintenance Act of 1956, which came
into operation on December 21, 1956, applies to any person who is
a Sikh by religion.i The alleged adoptive father and adopted son
belong to the Sikh religion and are subject to this Act. The Act
makes invalid the adoption of a son if the adoptive father or

  1 Hindu Adoptions and Maintenance Act, 1956, Section 2(1)(b): "This Act
applies to any person who io a Buddhist, Solna or Sikh by religion."

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mother has a son (whether by legitimate blood relationship or by
adoption) living at the time of the adoption? Since the petitioner's
father has three sons who were living at the time of the alleged
adoption, the document which purports to effect an adoption of the
beneficiary by the petitioner's father does not meet the requirements of the Hindu Adoptions and Maintenance Act of 1956 and
does not constitute a valid adoption.
  On appeal petitioner asserted that there was a valid adoption
long before the Hindu Adoptions and Maintenance Act of 1956
went into effect because adoption is permissible according to
family custom and usage as well as by Sikh religious tradition.
Although the Hindu law recognized adoptions prior to the Hindu
Adoptions and Maintenance Act of 1956, a Hindu could not take a
son by adoption if he had a son, grandson or great grandson
(natural or adopted) living at the time of adoption. This position
was upheld by the High Court of Bombay in Bharmappa v.
Ujjangauda (1922), 46 Boni. 455.
  Since we find that there was no valid adoption of the beneficiary
by the petitioner's father, the District Director was correct in
holding that the petitioner has not borne the burden of establishing that the beneficiary is her brother pursuant to section 203(a)(5)
of the Act. Accordingly, the following order will be entered.
  ORDER:It is ordered that the appeal be and the same is hereby
dismissed.




   2 Hindu Adoptions and Maintenance Act, 1956, Section 11(i): "In every adoption, the following conditions must be complied with:—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 (whether by legitimate blood relationship
or by adoption) living at the time of adoption."

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