UNIVERSITY OF MUMBAI LAW ACADEMY

FIFTH SEMESTER

SUBJECT: FAMILY LAW- I

TOPIC- ADOPTION IN CHRISTIANITY

IN THE PARTIAL FULFILLMENT OF BBA LLB(HONS.) 5 YEAR

COUSRE

SUBMITTED TO: SUBMITTED BY:

ADV. VAIBHAVI GADHIA RAVI GUPTA

ADOPTION IN CHRISTIANITY
 INDEX

CRITICAL ANALYSIS OF ADOPTION IN INDIA ........................................................................ 4

ADOPTION IN HINDUS............................................................................................................................. 5
Hindu Adoption and Maintenance Act, 1956 ..................................................................................... 5
ADOPTIONS IN MUSLIMS ........................................................................................................................ 6
ADOPTION IN PARSIS ...................................................................................................................... 7
ADOPTION IN CHRISTIANS ............................................................................................................ 8
Legislative Atttempts .......................................................................................................................... 8
Personal and customary law of adoption for Christians...................................................................... 9
Adoption among Kerala Christians ................................................................................................... 10
Historical Evidence ....................................................................................................................... 10
Judicial Precedents ........................................................................................................................ 11
SUGGESTIONS .................................................................................................................................. 12
Need for Uniform Code related to Adoption ................................................................................ 12
REFERENCES .................................................................................................................................... 15
 CRITICAL ANALYSIS OF ADOPTION IN INDIA

In recent times adoption was to provide childless parents an opportunity to get their own
children but that was to be taken place within the restricted relations. But now the times have
changed and adoption laws are framed as to provide JUSTICE TO CHILDREN.

Adoption provides a very important function in Indian society. India has long tradition of
child adoption. In olden days, it was restricted within the family and was covered by social
and religious practices. But with the changing times, adoption beyond the contour of family
has been institutionalized and legalized.1 But still most of the religions don’t allow adoption
which includes Muslims, Christians etc.

Although there is no general law on adoption, yet it is permitted by a statute amongst Hindus
and by custom amongst a few numerically insignificant categories of persons. Muslims,
Christians and parsis have no adoption laws and have to approach under the Guardians and
Wards Act, 1890. Muslims, Christains and Parsis can take a child under the Guardians and
Wards Act, 1890. They can take a child under the said Act only under foster care.2

1
A.S. Shenoy, Child Adoption Policies in India- A Review,
http://unstats.un.org/unsd/vitalstatkb/Attachment482.aspx Assessed on 5th febuarary, 2016.
2
Romit Agrwal, Adoption under Hindus, Muslims Christians and Parsis Laws,
http://www.legalserviceindia.com/articles/hmcp_adopt.htm , Assessed on 5th Feburary, 2016.
 ADOPTION IN HINDUS

The Hindus can adopt under Hindu Adoption and Maintenance Act, 1956. Only Hindus can
adopt under this Act. Hindus include

1. Hindu by birth Hindu, Buddhist, Jain and Sikhs

2. Hindu by Religion: all converts and reconverts.
3. All those who are not Muslims, Christians, Parsis or Jews.

Earlier only a son could be adopted but now both son or daughter could be adopted. Earlier
only husband could adopt but now any woman married or unmarried, widow can adopt a
child. Under the old Hindu Law, only a male could be adopted and an orphan could not be
adopted. Then even if a male was to be adopted, restrictions were imposed based on Caste
and Gotra. A female child could not be adopted under the Hindu Law. Under the old Hindu
law, only the male had a right to adopt and the consent or dissent of his wife to the proposed
adoption was immaterial.

But such restrictions have changed in the course of time. Such gender biases have been
minimized in today’s modern society. Under the modern Hindu Law, every Hindu, male or
female has the capacity to make an adoption provided he or she has attained majority and are
of sound mind. Most of these laws, rules and regulations have been enumerated in the Hindu
Adoption and Maintenance Act of 1956.3

Hindu Adoption and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act was passed after Independence as part of
modernizing and codifying Hindu Law. The Act to some extent reflects the principles of
equality and social justice by removing several (though not all) gender based discriminatory
provisions.

This Act deals with topics such as capacity to adopt, capacity to give in adoption, effect of
adoption, gender bias and such others.

3
Legal Framework Governing Adoption Laws in India, http://www.lawctopus.com/academike/legal-
framework-governing-adoption-laws-india/ Assessed on 5th Feburary, 2016.
 ADOPTIONS IN MUSLIMS

Muslims, Christians and parsis have no adoption laws and have to approach under the
Guardians and Wards Act, 1890. Muslims, Christains and Parsis can take a child under the
Guardians and Wards Act, 1890. They can take a child under the said Act only under foster
care. Once a foster child becomes major he has all right to break all connections with his
adoptive family. In Mohammed Allahabad Khan v. Mohammad Ismail4 it was held that there
is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu system.
Acknowledgement of paternity under Muslim Law is the nearest approach to adoption.5

When the Prophet married Khadijah, she gave him a slave known as Zayd bin Hâritha (Zayd,
son of Hâritha). The Prophet took such a good care of Zayd that their relationship changed
from that of a master and a slave into one of father and son. Zayd was one of the first persons
to accept Islam. When his father and uncles came to know about his whereabouts, they came
to Mecca and told Prophet Muhammad that Zayd had been captured by some thieves and sold
into slavery. The Prophet set him free. But Zayd refused to leave Muhammad and go home
with his father. Hâritha, the father of Zayd, became very angry and openly declared that from
now on “Zayd is not my son.” The Prophet immediately responded by adopting Zayd. Zayd
came to be known as Zayd bin Muhammad (Zayd, son of Muhammad). But yet the relation
recognized was only of a foster child and not of real parents.6

The biggest and the most important difference between the Hindu law and the Muslim law is
that the latter does not recognise adoption. Muslim Law takes into account the concept of
acknowledgement. The paternity of the child cannot be established by a Muslim if he adopts
a child of whom he is not the actual father. In Mohammed Allahabad Khan v. Mohammad
Ismail7 Khan, it was held that there is nothing in the Mohammedan Law similar to adoption
as recognized in the Hindu System and the acknowledgement of parentage is only a substitute
for adoption.

4
Mohammed Allahabad Khan v. Mohammad Ismail ,(1886) ILR 8 All 234.
5
Supra2.
6
Adoption in Islam, http://www.al-islam.org/articles/adoption-islam-sayyid-muhammad-rizvi, Assessed on 6th
Feburary, 2016.
7
Supra4.
“Adoption is not prohibited, but it is an act towards which religion is indifferent.”8

ADOPTION IN PARSIS

They are even not allowed to adopt under their religious. The only way is given under
Guardians and Ward Act. The reason for legal adoption was never for the sake of the child,
Lyall writes. Children could always be fostered, but adoption was to preserve the family. The
Roman household was a worshiping unit, and it needed a male priest at its head to offer
prayers and sacrifices to the family gods. Worshiping families were the building blocks of
Roman society.9

8
ADOPTION IN HINDU LAW AND MUSLIM LAW, http://www.lawteacher.net/free-law-essays/family-
law/adoption-in-hindu-law-and-muslim-law-law-essay.php#ftn12#ixzz3zUc2BZmJ Assessed on 5th Feburary,
2016.
9
Biblical Adoption Is Not What You Think It Is, http://www.christianitytoday.com/ct./2013/december/heirs-
biblicaliblical-take-on-adoption.html Assesed on 6th feburary, 2016.
 ADOPTION IN CHRISTIANS

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.

Legislative Atttempts
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.

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. Makuin10. 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

10
Sohan Lal V. A.Z. Makuin,AIR 1929 Lahore 230.
adopted boy the same rights as an adoption in Hindu law confers on him, can be considered 11
Ranbir Karam. 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 parent12.

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

11
Singh V. Jogindra C. Bhattachargi,AIR 1940 All. 134 at 139.
12
Ma Khin Than V. Ma Ahma,AIR 1934 Rangoon 72.
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. Gonsalvis13, 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 Ltd14. 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.

13
Philip Alfred Malvin V. Gonsalvis,AIR 1999 Ker. 187.
14
Maxin George v. Indian Oil Corporation Ltd, [2005 (3) K.L.T 57].
 SUGGESTIONS

Need for Uniform Code related to Adoption

The Hindu Adoptions and Maintenance Act, 1956 is limited to only Hindus to adopt. But still
there are many more children left who are orphaned, abandoned. A proposed uniform law of
adoption, applicable to all religious communitieshad been introduced in 1972, but dropped
due to opposition from the Muslim communities. “Every child has a right to love and be
loved and to grow up in an atmosphere of love and affection and of moral and material
security and this is possible only if the child is brought up in a family.” Therefore, if poor,
destitute, abandoned children are to be rehabilitated in a legal and safe manner, then there is a
great need for a uniform adoption law applicable to people belonging to all religions.15

Laws relating to crime and punishment are the same for all citizens in India, and so are the
laws relating to commerce, contracts and other affairs. But there are, as is evident from the
case laws and the authorities put forth above, that there are no uniform laws regarding family
matters in the Indian context. It has been requested since a long time for uniformity in such
laws. To treat all citizens equally, one must have same laws for everybody. In case of
adoption, the conspicuously different laws for Hindus and Non Hindus creates an emotional
problem. The non-Hindu parents, who may want to adopt a child and treat him/her as their
own are not legally allowed to call themselves the parents or claim the child as their own.
Hence, there has been a cry for a uniform civil code with respect to adoption.

A uniform civil code in adoption laws will not violate fundamental right to religion. It should
be remembered that directive principles of States policy mandate the state to bring uniformity
in laws. India being signatory to CRC (Convention on the Rights of a Child), such uniformity
is necessary so that the rights of adoptive children can well be enhanced and protected. Since
Adoption is a salient feature of Hinduism, The Hindu Adoptions and Maintenance Act, 1956
statutorily recognizes adoption. The Act brought about significant changes to the law of
adoption amongst Hindus and has improved the position of women in this regard. It is absurd
that Muslim and Christian Indians cannot legally adopt a child for lack of a uniform code on
adoption. If a Uniform Civil Code is enacted, like the Hindu women, the women following
other religions will also be allowed to adopt. With the coming of a Uniform Civil Code, the
status of Indian women will definitely improve in all aspects of social life. One way to avoid

15
Need for Uniform Civil Code, The Hindu on 23 rd Janurary, 2015.
conflict would be to give people the option to opt out of classification based on religion. It
should not be mandatory that there should be a set of religious personal laws that govern a
person’s life; instead, more laws to ensure basic human rights are the need of the hour. If the
Centre is unwilling to move forward, individual states should take the lead. Goa is one state
that has shown the way and other states may follow suit. A secular India needs a uniform
civil code.

Apart from this, care has to be taken that the uniformity that has been requested for breaks
through the shackles of gender bias too. The different rules regarding adoption for men and
women must stop. Both must have equal rights to adopt a child. Thus this issue also needs to
be addressed.

But the situation has been changed under the following judgment of 2014 which has totally
changed the conditions of adoption under Muslims, Christians and Parsis. This is a step
towards uniform civil code. This is a real good step towards creating awareness and better
feeling of oneness amongst people of same religion.

Harish v. Nair, 2014 Judgement

The court, however, turned down the plea for declaring the right of a child to be adopted and
right of a parent to adopt a fundamental right under the Constitution saying that such order
cannot be passed at this stage in view of conflicting practices and beliefs. The right to adopt a
child - till now restricted to Hindus, Buddhists and Jains - now extends to Muslims,
Christians, Jews, Parsis and all other communities.
In a landmark judgment, the Supreme Court on Wednesday ruled that any person can adopt a
child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of
religion he or she follows and even if the personal laws of the particular religion does not
permit it. "The JJ Act 2000 is a secular law enabling any person, irrespective of the religion
he professes, to take a child in adoption.” The ruling assumes significance as there are over
12 million orphaned children in India but on an average only 4,000 get adopted every year.
"Till now Muslims, Christians, Jews and those from the Parsis community only had the
power of guardianship in which one possess only legal right on the child till he or she turns
an adult. The biological parents have a right to intervene during that period.16

16
Supreme Court gives adoption rights to Muslims, http://indiatoday.intoday.in/story/supreme-court-gives-
adoption-rights-to-muslims/1/344463.html Assessed on 5th Febuarary, 2016.
 CONCLUSION

The Adoption Act is moving toward making it a religious neutral Act which is promoting
Uniform Civil Code. Adoption is a noble cause, which brings happiness to kids, who were
abandoned, or orphaned. This gives a chance for the humane side of civilization to shine
through. It’s a beneficial program where the child is treated as the natural born child and
given all the love, care and attention. At the same time, it fills the void in the parents who
yearned for kids, their laughter and mischief echoing off the walls of a home. Although a few
changes could be made to make all the laws regarding adoption a little, uniform.

Adoption should be with the consent of both the parents, both parents should equally
participate; otherwise it will be the child only who is going to suffer. The children are
vulnerable and totally dependent on the adults who are making their life decisions, and hence
safeguarding their rights and interests is of prime importance. Adoption not only fulfils the
desire of the parenthood on part of the adoptive parents but also provides a family to the
child.

Other aspect could be that adoption in a sense helps in population control. All children are
God gifted. So, there should not be any difference between one’s own child and the other’s
child. Rather than conceiving more number of children, one can adopt which will ultimately
serve two purposes: population control and most important is child welfare.

‘Adopting one child won’t change the world: but for that child, the world will change.’
 REFERENCES

Statutes:

Hindu Adoption and Maintenance Act of 1956

Guardians and Wards Act of 1890
Juvenile Justice (Care and Protection of Children) Act. 2000

Books:

Paras Diwan. "Law of Adoption. Minority, Guardianship and Custody

University Law Publishing Company, (4th, 2010)
"Family Law Lectures - Family Law I", Lexis Nexis Butterworths,
Wadhwa, Nagpur (2nd, 2008)
Paras Diwan. "Family Law", Allahabad Law Agency, (9th, 2009)

Online Sources:

Childline India Foundation (childlineindia.org)

Legal Service India (legalserviceindia.com)
Blog iPleaders (https://blog.ipleaders.in/blog/)
Manuptra (https://www.manupatrafast.com/)