Christian law of adoption in India
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[edit] Introduction
Christians in India can adopt children by resort to section 41 of the Juvenile Justice (Care and Protection of Children) Act 2006 read with the Guidelines and Rules issued by various State Governments. Apart from that there are customary laws permitting them to adopt children especially in Punjab. There is a peculiar custom among the Syrian Christians of Kerala for adoption of a son-in-law. Where there are no sons, the husband of the youngest daughter is taken in adoption under this custom.
An authoritative exposition of Christian law of adoption in India is given in the book “Christian Law on Marriage, Adoption & Guardianship and Canon Law on Marriage” by Dr. Sebastian Champappilly and published by Southern Law Publishers, Cochin-22, Kerala, India.
[edit] Legislative attempts
There is no specific statute enabling or regulating adoption among Christians in India. In the absence of a statutory or customary adoption recognized by court, the foster children will not be treated in law as children and upon the death of the foster parents their estate would be distributed among the legal heirs of the intestate to the detriment of the foster child or children.
In the past persons who wished to adopt a minor child usually approached the Court under the provisions of the Guardians and Wards Act of 1890 and an order of guardianship in respect of the minor child is obtained. The difficulty would arise when the child attains the age of majority as the order obtained under the Guardians and Wards Act would cease to have any effect and the child, who has become a major, will not get the benefits of an adopted son or daughter.
In order to overcome the difficulties in the matter of adoption, the Central Government introduced the Adoption of Children Bill, 1972 in the Rajya Sabha but it was subsequently dropped, presumably because of the opposition of Muslims stemming from the fact that it was intended to provide for a uniform law of adoption applicable to all the communities including the Muslims. In view of the rather strong sentiments expressed by the members of the Muslim community and with a view not to offend their religious susceptibilities, the Adoption of Children Bill, 1980 which was introduced in the Lok Sabha eight years later on December 16, 1980 contained an express provision that it shall not be applicable to Muslims. Apart from this change in its coverage the Adoption of Children Bill 1980 was substantially in the same terms as the Adoption of Children Bill 1972. The Adoption of Children Bill 1980 has, unfortunately, not yet been enacted into law. Later, in 1990 the Christian Adoption and Maintenance Bill, 1990 was mooted by various Christian Organizations, but that too could not make its entry in the statute book. Had any of these been enacted, Christians and such other communities could have availed of the benevolent provisions for adoption.
[edit] Personal and customary law of adoption for Christians
In the absence of statutory law of adoption for Christians, personal law and customary law on adoption has come to be recognised by the Indian Courts. The earliest decision on this subject seems to be the one rendered in connection with a case of Indian Christians of Punjab reported in Sohan Lal V. A.Z. Makuin (AIR 1929 Lahore 230) . The Lahore High Court held that in the case of Punjabi convert Christians it may be possible to prove the customary right of adoption applicable to them as members of their original caste. Again, in 1945 a Full Bench of the Lahore High Court held that among the agricultural tribes of Punjab, adoption is in no sense connected with religion and is a purely a secular arrangement resorted to by a sonless owner of land in order to nominate a person to succeed him as his heir. The object of such an adoption is not to secure any religious benefit for the soul of the adopter but to obtain a practical and temporal benefit. During his life time, the adopter secures the assistance of the appointed heir in cultivation and after his death the appointed heir inherits the estate of his adoptive father to the exclusion of the adoptive father’s collaterals. In yet another case, the Allahabad High Court held that it is necessary for the party to allege and prove that there is a custom of adoption among the Christian community in Punjab or any section of that community, before any question as to whether any such adoption confers on the alleged adopted boy the same rights as an adoption in Hindu law confers on him, can be considered (see Ranbir Karam Singh V. Jogindra C. Bhattachargi, AIR 1940 All. 134 at 139). Irrespective of religion, people belonging to the agricultural tribes of Punjab can prove adoption and it is valid in the eye of law. By virtue of these decisions customary law on adoption among Panjabi Christians can be proved from case to case and that right seems to be judicially recognised. However, in a case where a girl child was adopted while the adoptive parent was a Buddhist and the adoptive parent subsequently became a Christian and died as a Christian, the Rangoon High Court held that an adopted child is not an heir entitled upon intestacy to inherit the estate of his deceased adoptive parent (see Ma Khin Than V. Ma Ahma AIR 1934 Rangoon 72).
[edit] Adoption among Kerala Christians
As far as Kerala is concerned, among the Syrian Christians of Travancore, there is an ancient custom of adoption. If a Syrian Christian had only one daughter, she becomes the heiress to his property after his death. If, on the other hand, he has several daughters and no son or sons, the elder daughters are given in marriage with proper streedhanom (dowry), and sometimes even a portion of his property. When the youngest daughter is given in marriage, her husband becomes the adopted son of his father-in-law and assumes the latter’s family name. He generally resides with his wife in her house along with his father-in-law and mother-in-law. This peculiar custom has been noted by Rao Bahadur L.K. Anantakrishna Ayyar in his book on the Anthropology of Syrian Christians printed and published from the Cochin Government Press, Ernakulam in 1926.
[edit] Historical evidence
If one examines the history of adoption among Christians in Kerala, it can be found that the Synod of Diamper issued certain decrees in the year 1599 A.D. It provided that adoption of sons must not be practised where there are natural children, and that the persons adopted otherwise are not capable of inheriting anything, except what is given to them by way of legacy, which must not exceed the third of the estate. The Synod further forbade the Bishops from sanctioning adoption and decreed:- "Whereas the way of adopting by ancient custom in this diocese is to carry the parties that are to be adopted, before the bishop or prelate, with certain testimonials, before whom they declare, that they take such a one for their son, whereupon the bishop passeth an ola or certificate, and so the adoption is perfected; the Synod doth command, that from henceforward, the prelate do not accept of an adoption from any that have children of their own; or in case they have none yet it shall be declared in the ola. That if they shall afterwards happen to have any, the said ola shall be void to all intents and purposes; by which means the great injustices that are now so common in this diocese, will be prevented." Therefore, it is evident that customary adoption among Syrian Christians was prevalent from ancient times”.
[edit] Judicial precedents
However, no precedent could be traced as regards judicial recognition of this customary right or the rights under their personal law on adoption, till the decision rendered in Philip Alfred Malvin V. Gonsalvis, (see 1999 (1) KLT 292 = AIR 1999 Ker. 187) wherein a Single Bench of the High Court of Kerala held that it is an admitted fact that Christian Law does not prohibit adoption and also that Canon Law recognises adoption. It was further held that the main purpose of law of adoption is to provide consolation and relief to childless persons. An adopted child is transplanted in the adoptive family creating all rights and relationships as if the child was a biological child. On the other hand, all his rights and relationships cease in the natural family. Apart from the religious motives, secular motives are also important such as man’s desire for celebration of his name for the perpetuation of his lineage, for providing security in the old age and for dying in satisfaction that one has left an heir to one’s property. The position of an adopted child in respect of inheritance and maintenance is the same as that of a natural born child. The Court opined that simply because there is no separate statute providing for adoption, it cannot be said that an adopted son would not be entitled to inherit the properties of his adoptive parents.
The same view was taken by a Division Bench of the High Court of Kerala in the case of Maxin George v. Indian Oil Corporation Ltd [2005 (3) K.L.T 57]. However, the court added that an abandoned child fostered by a couple does not attain the status of an adopted child unless the formalities of adoption takes in the physical act of giving and taking of the child and the giver of the child is duly empowered or competent in that behalf. Obtaining an order appointing one as the guardian of such a child under the Guardians and Wards Act also does not confer on the child the status of an adopted child.
[edit] Conclusion
The right of adoption for Christians in India has come to be judicially recognised, but it has to be pleaded and proved on the facts of each case. In the absence of a customary adoption recognized by court or adoption orders obtained under the provisions of the Juvenile Justice (Care and Protection of Children) Act 2006, the foster children will not be treated in law as children and upon the death of the foster parents their estate would be distributed among the legal heirs of the intestate as the foster child or children do not have any right of succession.
