Can a Christian Adopt? Will an adopted child get share in the property of adoptive parents?

Saji Koduvath, Advocate, Kottayam.

Abstract

Can a Christian Adopt?

  • Answer: Yes.

Will an adopted child get share in the property of adoptive parents?

  • Answer: Yes.

Which is the law applicable for Christian adoption?

  • Answer: No enactment speaks about adoption by Christians.
  • Adoption being a legally recognised affair, and it reigns in the ‘personal law’ (law that pertains to religious communities) courts in India would look into the matter on two counts –
    • First, is there any custom among the group (Sohan Lal v. A.Z. Makuin, AIR 1929 Lahore 230).
    • Second, is it a matter prohibited by the religion or its teachings.
  • Various courts in India, including the Supreme Court (Pharez John Abraham v. Arul Jothi Sivasubramaniam K., AIR 2019 SC 4235) held that Christians can validly adopt children.

Pharez John Abraham v. Arul Jothi Sivasubramaniam

Pharez John Abraham v. Arul Jothi Sivasubramaniam K., AIR 2019 SC 4235 (M.R. Shah, L. Nageswara Rao, JJ.) is an authority on the following matters –

  • In the Christian Law, there is no prohibition against adoption.

By virtue of adoption, or once it is found the child is adopted –

  • he or she is deemed to be a son or daughter of the adoptive parents;
  • the child gets transplanted into the new family; and
  • he or she has the same rights and share which a natural child had.

It is held in Pharez John Abraham v. Arul Jothi Sivasubramaniam K., AIR 2019 SC 4235, as under:

  • “Therefore, all proceeded on the premise that defendant no. 3 and late Maccabeaus were the adopted children. Therefore, we may also proceed further with the case on the assumption that defendant no. 3 and late Maccabeaus were the adopted children of John D. Abraham. It is required to be noted that in the Christian Law, there is no prohibition against adoption. Nothing has been pointed out that unlike in Hindu law, there is any law prohibiting the Christian couple to adopt male or female child, although they may have natural born male or female child, as the case may be. Once, it is observed and held that original defendant no. 3 and late Maccabeaus were the adopted children of John D. Abraham, both of them were entitled to the share in the property of John D. Abraham – adoptive father.
  • 11.2 By virtue of adoption, a child gets transplanted into a new family whereafter he or she is deemed to be member of that family as if he or she were born son or daughter of the adoptive parents having same rights which natural daughter or son had. The right which the child had to succeed to the property by virtue of being son of his natural father, in the family of his birth, is thus, clearly to be replaced by similar rights in the adoptive family, and, consequently, he would certainly obtain those rights in the capacity of a member of that family as an adopted son.”

Codification of Adoption Laws

It deserves notice that (i) Juvenile Justice (Care and Protection of Children) Act 2006 and Guardian and Wards Acts do not deal with ‘adoption’, inheritance and other related matters; and (ii) adoption law exists only to bind the Hindus – Hindu Adoptions and Maintenance Act, 1956. Therefore, several attempts were made to enact a legislation in this field. Following are the main attempts –

  • the Adoption of Children Bill, 1972,
  • the Adoption of Children Bill, 1980,
  • the Christian Adoption and Maintenance Bill, 1990.

Owing to the objections raised by various religious communities, no law could have been enacted.

(See: Biju Ramesh v. J.P. Vijayakumar, AIR 2005 Ker 196.)

General Propositions as to Adoption – Kerala High Court

Philips Alfred Malvin v. Y.J. Gonsalvis, AIR 1999 Ker 187, laid down the general propositions as to adoption as under:

  • Christian Law does not recognise adoption. But it is an admitted fact that the Christian Law does not prohibit adoption. 
  • The Hindu Adoptions and Maintenance Act provides for adoption of children by Hindu parents.
  • The main purpose of law of adoption is to provide consolation and relief to childless person.
  • 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.
  • So far as Hindus are concerned, adoption is to preserve the continuation of ones lineage. 
  • Apart from the religious motives, secular motives were 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 a heir to one’s property.
  • It is essentially a transfer of dominion over the child from the natural parents to the adoptive parents and therefore some essential formalities were prescribed to effectuate the transfer on dominion.
  • The position of an adopted child in respect of inheritance and maintenance is the same as that of a natural born child.
  • Mohammaden Law also recognise adoption if there is custom prevailing among Mohammaden communities. (The custom is accepted to have the force of law, as is held in AIR 1936 Lahore 465.)
  • Section 29 of the Oudh Estates Act, 1869 permits a Mohammedan Talukdar to adopt a son.
  • In the State of Jammu & Kashmir, the existence of local custom regarding adoption has been recognised by virtue of Sri Pratap Jammu & Kashmir Laws Consolidation Act, 1977.
  • The right of the couple to adopt a son is a constitutional right guaranteed under Article 21. 
  • The right to life (Article 21) includes those things which make life meaningful. (One can think of making their life more meaningful by adopting a son.)
  • The Hindu Law, Mohammedan Law and Canon Law recognize adoption.
  • Therefore, simply because there is no separate statute providing adoption, it cannot be said that the adoption made by one is invalid.
  • Since the adopted son gets all the rights of a natural born child, he is entitled to inherit the assets of adoptive parents.

Inter-Country Adoption Apex Court Guidelines

  • Nowadays inter-country adoption is promoted for which the Apex Court has given some guidelines in Lakshmi Kant Pande v. Union of India, AIR 1984 SC 469. (Referred to in: Philips Alfred Malvin v. Y.J. Gonsalvis, AIR1999 Ker 187)

Evidence of Adoption

There is no specific law in this regard. From the aforesaid decision, Pharez John Abraham v. Arul Jothi Sivasubramaniam K., AIR 2019 SC 4235, it is clear that there is no special procedure or legal formality is also provided for ‘adoption’; the court pointed out – ‘all proceeded on the premise that defendant no. 3 and late Maccabeaus were the adopted children‘.

Therefore, all the evidence, including the facts and circumstances, emerges in the case has to be taken into consideration to find whether there is an adoption or not. The declarations made by the adoptive parents will be valuable pieces in this matter.

Philips Alfred Malvin v. Y.J. Gonsalvis

In Philips Alfred Malvin v. Y.J. Gonsalvis, AIR 1999 Ker 187, in order to prove adoption, the plaintiff has proved the Register of Baptism kept in the Holy Trinity Church, Kannur, where the alleged adoption took place. It read as follows:

  • “Illegitimate child of Anna, adopted by the god parents, mother gave her consent for the adoption and Catholic education, to the god parents. Both Anna and John were Marthomites from Travancore as per the entry in the Baptism Register.”

The Kerala High Court thereafter considered Canon Law and found that it did not prohibit adoption. The Code of Canon Law, commissioned by the Canon Law Society of America, Canon 110, 111 and 1094 relates to adoption, which read as follows:

  • “110. Children, who have been adopted according to the norm of civil law are considered the children of the person or persons who have adopted them.”
  • “111-1. Though the reception of baptism, the child of parents who belong to the Latin Church is enrolled in it, or, if one or the other does not belong to it, both parents have chosen by mutual agreement to have the offspring baptized in the Latin Church. If there is no mutual agreement, however, the child is enrolled in the ritual Church to which the father belongs.
  • 2. Anyone to be baptized who has completed the fourteenth year of age can freely choose to be baptized in the Latin Church or in another ritual Church sui juris; in that case, the person belongs to the Church which he or she has chosen.”
  • “1094. Those who are related in the direct line or in the second degree of the collateral line by a legal relationship arising from adoption cannot contract marriage together validly.”

From the above Canon Laws, it can be seen that the Church has adopted civil law pertaining to the area.

Formalities and Evidence Essential

In Biju Ramesh v. J.P. Vijayakumar, AIR 2005 Ker 196, it is pointed out as under:

  • “Even if the Christian Law recognizes adoption, there must be evidence of: the actual formality of the adoption by proving the physical act of giving and taking of the child ……” (Quoted in: In Re – R. R. George Christopher, 2010-2 LW 881; 2009-8 MLJ 309).

In Maxin George v. Indian Oil Corporation Ltd., 2005 (3) KerL T 57, it is held that an abandoned child fostered by a couple does not attain the status of the adopted child of that couple. Obtaining an order appointing one as guardian of such a child under the Guardians and Wards Act also does not confer on the child the status of an adopted child. It continued as under:

  • “14. Though after the amendment of the Hindu Adoptions and Maintenance Act by Act 45 of 1962 an orphan also could be adopted, such adoption also could be made only if the guardian gave the child in adoption. Among Christians also formalities of adoption takes in the physical act of giving and taking of the child. Obviously the giver of the child has to be one duly empowered or competent in that behalf. …
  • … In the absence of evidence of a valid adoption having been made in any of the recognised forms undergoing the formalities of adoption recognised by the community an adoption cannot become legal.”

In T. Crauford v. Ms. Maary Disilva,  AIR 2008 Raj 189, it is held that  ‘baptism is not synonymous to adoption and the baptised child does not get any right in the property of his sponsors i.e. godparents only on account of the baptism’.

Guardian and Adoption

Maxin George v. Indian Oil Corporation Ltd., 2005 (3) KerL T 57, held as under:

  • “Authorities on the subject seem to be unanimous in the view that an abandoned child fostered by a couple does not attain the status of the adopted child of that couple. Obtaining an order appointing one as guardian of such a child under the Guardians and Wards Act also does not confer on the child the status of an adopted child.”

Secular law in India Providing for Adoption

In In Re – R. R. George Christopher, 2010 2 LW 881; 2009 8 MLJ 309 it is pointed out as under:  

  • “13. The JJ Act for the first time provides adoption as a means to rehabilitate and socially reintegrate a child. It had empowered the State Government and the JJ Board to give a child for adoption. This is the first secular law in India providing for adoption. The provision: in Sections 40 and 41 are not restricted to persons belonging to particular religion alone.
  • 14. Sections 40 and 41 of the Juvenile Justice (Care & Protection of Children) Act, 2000 reads as follows:
  • “40. Process of rehabilitation and social reintegration:
  • The rehabilitation and social reintegration of a child shall begin during the stay of the child in a childrens home or special home and the rehabilitation and social reintegration of children shall be carried out alternatively by (i) adoption, (ii) foster care, (iii) sponsorship, and (iv) sending the child to an after-care organization.
  • 41. Adoption:
  • .(1) The primary, responsibility for providing care and protection to children shall be that of his family.
  • (2) Adoption shall be resorted to for the rehabilitation, of such children as are orphaned, abandoned, neglected and abused through institutional and non-institutional methods.
  • (3) In keeping with the provisions of the various guidelines for adoption issued from time to time, by the State Government, the Board shall be empowered to give children in adoption and carry out such investigations as are required for giving children in adoption in accordance with the guidelines issued by the State Government from time-to-time in this regard.
  • (4) The children homes or the State-Government run institutions for orphans shall be recognized as adoption agencies both for scrutiny and placement of such children for adoption in accordance with the guidelines issued under sub-section (3).
  • (5) No child shall be offered for adoption –
  • .(a) until tow members of the Committed declare the child legally free for placement in the case of abandoned children,
  • .(b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and
  • .(c) without his consent in the case of a child who can understand and express his consent.
  • .(6) The Board may allow a child to be given in adoption –
  • .(a) to a single parent, and
  • .(b) to parents to adopt a child of same sex irrespective of the number of living biological sons or daughters”.

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