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Article Published in the Express Magazine Dated
November 03, 2002
General Attorney : Rajiv K. Luthra
My younger brother died leaving his wife and a
minor 4-year old son. The lady has now married a
widower, who has a 12 year old son from his
deceased wife. This man is claiming to have
adopted the child. You have once stated that an
adoptive father cannot adopt a child of the same
sex if he already has one living. Can this man
then legally adopt our child? Can the child stay
in the new family? What chance do we stand to get
the custody of the child?
Sanjay Bali
Presuming that the child is a Hindu and that the
widower your sister-in-law is married to is also a
Hindu, the Hindu Adoptions and Maintenance Act,
1956, and the Hindu Minority and Guardianship Act,
1956, shall apply.
According to Section 11 of the Adoptions Act, if a
son is adopted, the adoptive father or mother by
whom the adoption is made must not have a Hindu
son living at the time of adoption. Hence, the
widower cannot legally adopt your deceased
brother’s son. The mother is alive and she is the
natural guardian of the child. The mother’s
remarriage is not a disqualification to act as a
natural guardian. The natural mother can be
disqualified from acting as a natural guardian
only if she ceases to be a Hindu by conversion or
if she becomes an ascetic.
Section 6(a) of the Guardianship Act states that
the custody of a minor son below five years shall
ordinarily be with the mother. However, the
interest and welfare of the minor child is of
paramount consideration before the court, which
has been vested with sufficient discretion. To get
the custody, you will have to prove that the
mother in some way has made herself unfit to
retain the custody of the minor.
I had rented my house for a term of 11 months,
upon the expiry of which my tenant refused to
vacate the house. On his request, we entered into
an agreement to sell and he said that he was
applying for a housing loan and that he would pay
the balance amount on a specified date. He gave me
a post dated cheque for the balance amount with
the understanding that I would not encash the same
before the fixed date and return the cheque if the
housing finance loan cheques were issued. He
failed to fulfill the contract and I also found
out that he has not applied for any housing Loan.
Please suggest ways to get my money or property
back and claim damages from him.
N. Dhanraj
At the outset, it may be noted that the title in
the property does not get transferred in the name
of the intended purchaser merely by virtue of
execution of an 'agreement to sell' -- for that a
registered sale deed is required. Since your
tenant has not performed his obligations under the
contract, you have the option of terminating the
agreement to sell and suing him for recovery of
damages suffered by you, on account of his breach
of contract. As regards eviction, you can initiate
proceedings under the provisions of the Transfer
of Property Act or the Rent Control Act of the
State, whatever maybe applicable. However, a
detailed analysis of the agreement and other
relevant facts and circumstances will be required,
for which it is advisable that you seek legal
advice.
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