Interim Decision #2801
MATTER OF PATEL
In Visa Petition Proceedings
A-23557515
Decided by Board June 18, 1980
(1) Notwithstanding the requirement of the Hindu Adoptions and Maintenance Act of
1956 that a Hindu male can only adopt with the consent of his wife and that a child's
natural father must also have the consent of the mother, an adoption may be valid
without the -written consent of the wife and the natural mother, since paragraph 16 of
the Act provides that an adoption will be presumed to be in compliance with the Act if
the adoption document is signal by both the person giving and the peraou Lekiug the
child in adoption and is duly registered and recorded.
(2) Where a Deed of Adoption and a Declaration contained the signatures of the
adoptive faller, the petitioner in this case, and of the beneficiary's natural father, the
requirements for adoption under the Hindu Adoptions and Maintenance Act will be
deemed to have been met.
(3) Since the requirements of section 101(b)(1)(E) that an adopted child must live with
his adoptive parents for 2 years may be fulfilled by residence with only one parent
prior to the adoption, the record was remanded for the submission of proof in support
of petitioner's allegation on appeal that the beneficiary lived with the petitioner's wife
in India from 1971 until 1974 while he was residing in Canada.
ON BEHALF OF-PETITIoNER: Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The lawful permanent resident alien petitioner applied for preference status for the beneficiary as his adopted son under section
203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2).
In a decision dated December 21, 1979, the District Director denied the
petition. The petitioner has appealed from that decision. The record
will be remanded.
The petitioner is a 35-year-old native and citizen of India. The
beneficiary is a 9-year-old native and citizen of India. The record
reflects that the petitioner adopted the beneficiary in India on
December 22, 1976.
The District Director denied the visa petition on the ground that the
beneficiary had not lived with the petitioner for two years since the
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adoption, so the residency requirement of the statute had not been
met. He further concluded that the adoption was invalid under the
Hindu Adoption and Maintenance Act of 1956, because the Deed of
Adoption did not indicate that the petitioner's wife and the beneficiary's natural mother gave their consent to the adoption as required by
the law.
In regard to the District Director's determination that the adoption
is invalid under the law in effect in India, we have examined the statute
and disagree with his conclusion. As the District Director noted, the
Hindu Adoptions and Maintenance Act of 1956 provides that a Hindu
male whose wife is living can only adopt with the consent of his wife
unless she has renounced the world, has ceased to be a Hindu, or has
been judicially declared to be of unsound mind. See Appendix A. It
further states that only the child's natural father can give the child in
adoption, but he, too, must have the consent of its mother, with the
same above-mentioned exceptions. See Appendix A.
The District Director examined the documents submitted by the
petitioner, including the Deed of Adoption and the Declaration, by
which the beneficiary's natural father gave him in adoption to the
petitioner, and could find no mention of consent to the adoption by
either the petitioner's wife or the beneficiary's natural mother. We
agree that no such consent appears to have been recorded in the
adoption documents. However, upon further scrutiny of the applicable
law, we conclude that written consent of the wife and the natural
mother is not required.
The paragraph of the Hindu Adoptions and Maintenance Act critical
to our determination provides as follows:
16. Whenever any document registered under any law for the time being in force is
produced before any court purporting to record an adoption made and is signed by the
person giving and the person taking the child in adoption, the court shall presume that
the adoption has been made in compliance with the provisions of this Act unless and
until it is disproved
From this language, it appears that the law only requires the signatures of the persons giving and taking the child in adoption. The
adoption will then be presumed to be in compliance with the other
provisions of the Act, including the consent requirement, until it is
shown to be invalid. Since, in the case of married couples, only the
husband can give or take a child in adoption, with the same exceptions
set forth regarding the wife's consent, the required signatures would
be those of the husbands. Therefore, the appropriate signatures
needed in the instant case were those of the petitioner and the beneficiary's natural father. See Appendix A. We believe that the petitioner's
adoption of the beneficiary was thus performed in compliance with the
Hindu Adoptions and Maintenance Act and is valid under the law of
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India. We shall, therefore, recognize it as valid for purposes of our
immigration laws.
On appeal, the petitioner states that the beneficiary lived with the
petitioner's wife in India from 1971 until April 1974, when she joined
the petitioner in Canada. The petitioner also indicates that he was
supporting the beneficiary at that time and would have brought the
child with him to Canada, except that his United States citizen sister
had applied for preference status for his entire family and he planned
to wait until the beneficiary could join him in the United States.
Section 101(b)(1)(E) of the Act, 8 U.S.C. 1101(b)(1)(E), includes
within the definition of the term "child":
a child adopted while under the age of fourteen years if the child has thereafter been
in the legal custody of, and has resided with, the adopting parent or parents for at
least two years ...
This Board has held that the two years of residence of the child with
his adoptive parents need not be subsequent to the adoption, although
the legal custody requirement can only be met after the adoption. See
Matter of Cho, 16 I&N Dec. 188 (BIA 1977); Matter of M , 8 I&N Dec. —
118 (BIA 1958; A.G. 1959). It has also been determined that the residence requirement is satisfied if the child lived with only one of the
adopting parents for the two year period. See Matter cif Y
- — W, 9
I&N Dec. 176 (A.G. 1961).
Inasmuch as the petitioner has indicated that his wife lived with the
beneficiary for several years prior to the adoption, we believe that the
record should be remanded to the District Director to give the petitioner an opportunity to submit evidence in support of his claim.
Accordingly, the record will be remanded to the District Director for
further proceedings consistent with the foregoing opinion and for the
entry of a new decision. In the event of a decision adverse to the
petitioner, the District Director should certify the record to the Board
for review.
ORDER: The record is remanded to the District Director for
further proceedings consistent with the foregoing opinion and the
entry of a new decision.
FURTHER ORDER, In the event of a decision adverse to the
petitioner, the record shall be certified to the Board for review.
APPENDIX A
Extracted provisions of the Hindu Adoptions and MainLeaance Act
of 1956.
1. (1) This Act may be called the Hindu Adoptions and Mainte-
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nance Act, 1956.
(2) It extends to the whole of India except the State of Jammu
and Kashmir.
2. (1) This Act applies—
(a) to any person, who is a Hindu by religion in any of its
forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya
Samaj;
(I) to any person who is a Buddhist, Jaina, or Sikh by
religion;
(c) to any other person who is not a Muslim, Christian,
Parsi or Jew by religion, unless it is proved that any such
person would not have been governed by the Hindu law
or by any custom or usage as part of that law in respect
of any of the matters dealt with herein if this Act had not
been passed.
(2) Notwithstanding anything contained in subsection (1), nothing contained in this Act shall apply to the members of any
Scheduled Tribe within the meaning of clause (25) of article 366
of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. .
(3) The expression "Hindu" in any portion of this Act shall be
construed as if it included a person who, though not a Hindu by
religion, is nevertheless, a person to whom this Act applies by
virtae of the provisions contained in this section.
Save~ as otherwise expressly provided in this Act, —
( a) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force immediately
before the commencement of this Act shall cease to have
effect with respect to any matter for which provision is
made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in
so far as it is inconsistent with any of the provisions
contained in this Act.
5. (1) No adoption shall be made after the commencement of this
Act -by or to a Hindu except in accordance with the provisions
contained in this chapter, and any adoption made in contra
vention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in
the adoptive family in favour of any person which he or she could
not have acquired except by reason of the adoption, nor destroy
the rights of any person in the family of his or her birth.
Interim Decision #2801
6. No adoption shall be valid unless-
(i) The person adopting has the capacity, and also the
right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and,
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
7. Any male Hindu who is of sound mind and is not a minor has the
capacity to take a son or daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with consent of his wife
unless the wife 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 he of unsound mind.
8. Any female Hindu —
(a) who is of sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose marriage has
been dissolved or whose husband 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,
has the capacity to take a son or daughter in adoption.
9. (1) No person except the father or mother or the guardian of a
child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of subsection (a), the father, if
alive, shall alone have the right to give in adoption, but such
right shall not be exercised save with the consent of the mother
unless the mother 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.
(3) The mother may give the child 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.
16. Whenever any document registered under any law for the time'
being in force is produced before any court purporting to record an
adoption made and is signed by the person giving and the person
taking the child in adoption, the court shall presume that the adoption
has been made in compliance with the provisions of this Act unless and
until it is disproved_
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