ADOPTION OF CHILD AND ITS FORMALITIES

Published by The Daily Star on 3rd December, 2010 (Link Above)

This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of ‘The Legal Counsel’. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Reader’s query
In the recent DV-2012 under children’s serial #14, I found that, I have to mention names and details of any of my legally adopted children. In the American context, will legal adoption under our Bangladesh “notary public” be acceptable to the DV Authorities in the USA? I have observed in the USA, Notary Public is quite popular and extensively acceptable in the Judiciary/Courts unlike, in our Bangladesh context. Also kindly advise alternative/s and approximate expenses to process through the Court.

Thanking you once again.
Putool

Response
Thanks for your query. From the given fact it appears to me that you are desirous to know the law regarding Adoption and the acceptability of notarial acts executed in Bangladesh in the United States of America. It is noteworthy that in Bangladesh family matters are governed by the personal law of each community to which an individual belongs. Accordingly, the issues like Marriage, Divorce, and Adoption are dealt by the personal religious law along with relevant statutes of the land.

As far as Adoption is concerned, it is not permitted under the Islamic Law. Thus, in Bangladesh Muslims cannot lawfully adopt a child. Although in practice there are many instances of families adopting a child, these are resulting into informal adoptions in consequence having no legal recognition. Muslims can, however, take the custody of a child till the attainment of majority through court order subject to the satisfaction of the court.

Unlike the Muslims, in Bangladesh the Hindus can lawfully adopt as the Hindu law allows the same. However, it is only the son, who may be adopted under Hindu Law. The son to be adopted must belong to the same caste. It is only a Hindu male of sound mind who may adopt a son. An unmarried Hindu female cannot adopt in Bangladesh. A Hindu wife has no right to adopt a son without the express consent of her husband. As far as a Hindu widow is concerned, adoption is not permissible unless she has been permitted by her husband during his lifetime to adopt.

Therefore, a legal adoption may only be declared by way of an Affidavit in front of a notary if it is done under the Hindu Law by a Hindu male or a female as discussed above. Concerning your query as to the acceptability of the notarial act (i.e. the Affidavit before the Notary Public) by the DV authorities, the Notaries Ordinance 1961 appears to be pertinent. Section 14 of the Ordinance provides that the government by way of a Gazette notification may recognize the notarial acts lawfully done in a foreign country or place provided the notarial acts done by notaries in Bangladesh are also recognized in that country or place for all or any limited purpose.

Considering the case law it appears that the section provides for a reciprocal (i.e. mutual) arrangement between the parties. If there is any such arrangement between Bangladesh and the United States, such Affidavit should be acceptable in the United States. On the contrary, the case law further suggests that notarial act in a foreign country can be accepted as evidence, if there is evidence to show that the person before whom the notarial act was done was a notary public and the state in which it was done authorized by him by law to do the notarial act. However, such authorization is also needed in the foreign country in which the notarial work is to be produced. As you have mentioned in your query that Notary Public is extensively popular and acceptable in the United States, it is likely to increase the likelihood of admitting the Affidavit in the given case. I have dealt with many matters involving notary public and have found that the same were admitted by different US authorities.

As an alternative, you may swear the Affidavit in front of a First Class Magistrate in addition to the Notary Public which will increase its strength. As far as expenses are concerned, the notarial acts are not expensive.

I hope that the aforesaid guidelines shall help you to understand your queries regarding the issues of Adoption and acceptance of notarial act in the United States.

For detailed query contact omar@legalcounselbd.com