Interim Decision #2468 

MATTER OF IRANI 

In Visa Petition Proceedings 

A-21769965 

Decided by Board February 4, 1976 

(1) Prior to the Hindu Adoptions and Maintenance Act of India which became effective 

December 21, 1956, the rule of Hindu law was that adoption by a woman of a son to 

herself was invalid and conferred no legal right upon the person adopted, and that a 

woman could adopt a child to her husband if she obtained his express consent during his 

lifetime. The woman's power to adopt could not be greater than the husband had in his 

own lifetime. The adoption of a son by a male Hindu was invalid if he had a son, 

grandson or great-grandson, natural or adopted, living at the time of the adoption. 

(2) Petitioner has failed to sustain her burden of proving that the beneficiary qualifies for 

preference classification under section 203(a)(2) of the immigration and Nationality Act. 

as amended, as her adopted son, since she has not submitted evidence to establish that 

she complied• with the applicable provisions of Hindu law in effect at the time of the 

alleged adoption of beneficiary in Bombay, India, on December 1, 1964. Further, it 

appears that, even if petitioner !mold establish that she had the express consent of her 

husband to adopt beneficiary, the adoption would be invalid under Hindu law because 

she had a son living at the time of the adoption. 

ON BEHALF OF PETITIONER: Brian J. Tucker, Esquire 

1501 Broadway 

New York, New York 10036 

The lawful permanent resident petitioner applied for preference classification for the beneficiary as heir unmarried adopted son under section 

203(a)(2) of the Immigration and Nationality Act. In a decision dated 

May 7, 1975, the district director denied that petition. The petitioner 

has appealed. The appeal will be dismissed. 

The beneficiary is a 24-year-old male alien, native and citizen of India, 

who is presently residing in the United States as a nonimmigrant 

student. The petitioner is the sister of the beneficiary's father. 

The record contains two documents dated February 27, 1974, and 

December 7, 1974, which purport to be declarations by Homai Irani, the 

natural mother of the beneficiary. The beneficiary's natural mother 

alleges in her "Declarations" that the beneficiary was born on December 

20, 1951; that the petitioner adopted the beneficiary in Bombay, India, 

on December 1, 1954; and that the petitioner provided for the welfare 

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Interim Decision #2468 

and education of the beneficiary since that date of his adoption. The 

record indicates that the petitioner was married at the time of the 

alleged adoption, is presently married, and has one living male child of 

her own, who was born on September 3, 1944. 

In the last paragraph of the brief in support of the petitioner's appeal, 

counsel contends that the district director "refused to consider the 

primary evidence of the adoption decree". We note that the record does 

not contain a document purporting to be an adoption decree. 

In visa petition proceedings, the burden of establishing the claimed 

relationship is upon the petitioner. Matter of Brantigan, 11 I. & N. Dec. 

493 (BIA 1966). In order for the petitioner to establish that the beneficiary is her adopted son, she must show that the beneficiary had 

qualified as an adopted "child" as that term is defined in section 101- 

(b)(1)(E) of the Act. Matter of Ng, 14 I. & N. Dec. 135 (BIA 1972). 

Section 101(b)(1)(E) includes: 

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... 

Inasmuch as the adoption allegedly was accomplished in India, we 

must look to the provisions of the Hindu law which were in effect at the 

time of the alleged adoption. Inquiry was directed to the Library of 

Congress to ascertain whether the beneficiary had any status under 

Hindu law as an adopted child. A memorandum of law prepared by the 

Library of Congress dated January, 1976 is attached hereto and made 

a part hereof. According to the information furnished by the Library of 

Congress, the Hindu Adoptions and Maintenance Act became effective 

on December 21, 1956. Prior to the adoption of that Act, the rule of 

Hindu law was that adoption by a woman of a son to herself was invalid 

and conferred no legal right upon the person adopted; and that a woman 

could adopt a child to her husband if she obtained his express consent 

during his lifetime. The report of the Library of Congress also indicates 

that prior to the enactment of the Hindu Adoptions and Maintenance 

Act of 1956, the adoption of a son by a male Hindu was invalid if he had a 

son, grandson or great-grandson, natural or adopted, living at the time 

of the adoption. 

The petitioner has not submitted evidence to establish that she complied with the provisions of the Hindu law which were in effect at the 

time of the alleged adoption. Apart from the uncorroborated "declaration" of the beneficiary's natural mother, Homai Irani, no other evidence 

has been submitted by the petitioner to support the claimed relationship. Further, we note that in the petitioner's application for status as 

Prepared by Itrishan S. Nellie, Senior Legal Specialist, American-British Law Divi 

sion, Law Library, Library of Congress. 

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Interim Decision #2468 

permanent resident filed October 19, 1972, she listed a male child, 

Ardesher Irani, born on September 3, 1944 as one of her own children. 

In light of this fact, it appears that even if the petitioner could establish 

that she had the express consent of her husband during his lifetime to 

adopt the beneficiary, the adoption would be invalid under Hindu law 

because she had a son living at the time of the adoption. 

Therefore, we conclude that on the basis of this record, the petitioner 

has failed to sustain her burden of proving that the beneficiary qualifies 

as her adopted son under section 203(a)(2) of the Act. The following 

order will be entered. 

ORDER: The appeal is dismissed. 

APPENDIX 

India 

Before the commencement of the Hindu Adoptions and Maintenance 

Act, 1956, No. 78, on December 21, 1956, the general rule of Hindu law 

relating to adoption was that every male Hindu of the ,a.ge of discretion 

could take a son in adoption provided he was of sound mind and had no 

son, grandson or great-grandson, natural or adopted, living at the time 

of adoption. 1 

A woman could only adopt "to her husband." 2A wife could not adopt 

in her husband's lifetime without his express consent. 3After his death, 

she could adopt a son if the husband had so authorized her However, 

the woman's power to adopt could not be greater than the husband had 

in his own lifetime. 4Thus, the existence of a son, natural or adopted, 

was a bar to an adoption by a woman also. 

In the present case, the adoption made in 1954 of a son by a woman, 

who had a son living since 1944, would appear to be invalid, and the 

following statements are, therefore, correct: 

(1) Adoption by a woman of a son to herself was invalid and conferred no legal right upon 

the peison adopted; and 

(2) A woman could adopt a child to her husband if she obtained his express consent 

during his life time. 

Prepared by 

Krishan S. Nehra 

Senior Legal Specialist 

American-British Law Division 

Law Library, Library of Congress 

January 1976 

1W. Stokes, Hindu Law Books 531-534 (1865). 

2 Puttulal v. Parbati Kunwar, 37 Indian L.R. Allahabad Ser. 359 (P.C. 1915); Narendra 

Nath Bairagi v. Dina Nath Das, 37 Indian L.R. Calcutta Ser. 224 (1909). 

aNarayan Babaji v. Nana Manobar, 7 Bombay II. Ct. R. 155 (1570) . 

IL Srinivasan, I Principles of Hindu Law 187 (4th ed. 1969). 

571