Adoption Law

Chapter 8 of the Civil Code, 2074 ‘Provisions Relating to Adoption’ provides legal provision on adoption. Section 169 says that if a person accepts a son or daughter of another person as his or her son or daughter, then such son or daughter are adopted son or daughter.

As per section 170, adoption is to be made for the best rights and interest protection of the child.

Section 171 says that no person shall adopt son if he or she has own son and no person shall adopt a daughter if he or she has his or her own daughter. But if a man or woman is living separately by taking partition share in accordance with law may adopt a son or a daughter.

Following person may adopt a child according to section 172:

• A couple who has no child born even after 10 years of marriage,
• An unmarried woman who has completed 45 years of age, a widow, a divorcee woman or judicially separated woman, having no son or daughter,
• An unmarried man completed 45 years of age, a widower, divorcee or judicially separated man, having no son or daughter.

But in the following person cannot effect adoption:

• One who is of unsound mind,
• One who is convicted by the court of a criminal offense involving moral turpitude,
• One who is financially incapable and cannot afford for maintenance, health care, education, sports facility, entertainment and care of the minor.

Section 173 says that adoption is not effected of the following persons:

• If the child to be adopted has completed 14 years of age,
• If the child is the only son or daughter of his or her biological father and mother. But adoption can be effected if the father or mother of such child is not traced or the father or mother cannot maintain or care and are being maintained and cared by a person or organization, with the written consent of such person or organization.
• If a child has been once adopted as a son or daughter but this provision is not applied where the adoption is annulled according to law.
• One who is in higher degree of relationship than the person adopting the son or daughter,
• One who is not a citizen of Nepal.

The age difference between the adopter and the adoptee should be at least 25 years. The adoption procedures need to be met like deed of the adoption, fulfillment of the legal requirements as per section 177.

Section 178 says that the entitlements, rights, obligations and responsibilities of an adopted son or daughter shall be the same as that of a biological son or daughter of the adoptive person. The son or daughter may use the surname of either or both of the adoptive father and mother. if the adopted son or daughter desires, he or she may use the surname of his biological father or mother. after the annulment of the adoption, the surname of the minor shall be of his biological father or mother.

According to section 180, the adopted son or daughter cannot claim partition share in the property of his or her biological father and mother. If the adoption is annulled then, he or she may claim the partition from his or her biological parents. And if he or she has already obtained such partition then, he or she may receive such property as well.

Obligation of adoptive person

Section 181 makes provision for the obligation of the adoptive person as following:

• To make arrangements for the maintenance, health care, sports, entertainment and proper education of the adopted son or daughter according to his or her reputation and capacity,
• To protect the rights and interests of the adopted son or daughter, etc.

Obligations of adopted son or daughter

Section 182 says that the obligations of the adopted son or daughter are as following:

• To make arrangements for the maintenance, health care and care of the adoptive,
• To protect, look after and properly manage the property of the adoptive person,
• To protect the rights and interests of the adoptive person.
  The adoptive person shall provide the adopted son or daughter, the facility of visit to his or her biological father and mother.

Void adoption

The following adoption are ipso facto void:

• If any person adopts a son who already has a son and adopts a daughter if he/ she already has a daughter,
• If a couple adopts a child before 10 years of their marriage,
• Adoption made by an unmarried man who has not completed 45 years of age,
• Adoption made by an unmarried woman who has not completed 45 years of age,
• Adoption of a child who has completed 14 years of age,
• Adoption of a child who is the only son or daughter,
• Adoption of child who has been once adopted,
• Adoption of a child who is not a citizen of Nepal,
• If the age difference between the adoptive and adopted person is not at least 25 years,
• If the consent has not been taken. etc.

Voidable adoption
If an adoptive person fails to fulfill his or her obligation, then such adoption may be annulled.

Termination of adoption
The void and voidable adoption are deemed to have been terminated.

Inter- Country adoption

Chapter 9 makes legal provision on Inter- Country Adoption. If any foreigner accepts a child/ minor of a Nepali citizen or of a foreigner domiciled in Nepal as an adopted son or daughter, it shall be deemed to be accepted as an inter- country adoption. Section 190 says that Government of Nepal shall consider whether or not the best interests of the minor will be ensured in granting for adoption, his or her human rights will be protected and such a child will be abducted, sold trafficked or otherwise abused. The following children who have stayed in a children home for at least 6 months may be adopted by a foreigner:

• The orphan children whose father and mother both have died and who are not under protection of any one,
• The children who are voluntarily abandoned.

Section 193 provides for an Inter- Country Board which act as central agency that recommends for granting permission to a foreigner for adoption. The foreigner who wants to adopt should also be eligible and certain legal procedures have to be fulfilled for the process. The eligibility of such person are provided in section 192 whereas the procedures to be done are given in section 194.

Limitation

The time limitation to file a lawsuit against any act done contrary to this chapter shall be within one year after the date on which such an act was done or an action was taken.