Christian Law of Adoption in
Christians in
An authoritative exposition of Christian law of adoption
in
Legislative
attempts
There is no specific statute enabling or regulating adoption among
Christians in
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.
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
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.
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”.
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.
Conclusion
The right of adoption for Christians in