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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Interim Decision #2801 

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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Interim Decision #2801 

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 Mainte416 
Interim Decision #2801 

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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