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
 LITERATURE REVIEW

This review of the literature examines adoption in different religions,

fostering, and the needs of looked-after and adopted children. Two domains of
research about looked-after children are examined.

This assignment is mainly focusing on adoption in Christianity, which cover

different traditions in Christians in various states and regions. Different
research paper and cases are used to complete the document.
 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.

ADOPTIONS IN MUSLIMS

3
Legal Framework Governing Adoption Laws in India,
http://www.lawctopus.com/academike/legal-framework-governing-adoption-laws-india/
Assessed on 5th Feburary, 2016.
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.
“Adoption is not prohibited, but it is an act towards which religion is
indifferent.”8

ADOPTION IN PARSIS
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.

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.
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

ADOPTION IN CHRISTIANS
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.
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
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
10
Sohan Lal V. A.Z. Makuin,AIR 1929 Lahore 230.
11
Singh V. Jogindra C. Bhattachargi,AIR 1940 All. 134 at 139.
12
Ma Khin Than V. Ma Ahma,AIR 1934 Rangoon 72.
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 13, 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

13
Philip Alfred Malvin V. Gonsalvis,AIR 1999 Ker. 187.
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.

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
15
Need for Uniform Civil Code, The Hindu on 23rd Janurary, 2015.
Civil Code, the status of Indian women will definitely improve in all aspects
of social life. One way to avoid 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/)