Can Indian Christians Adopt?
Currently the position in India is such that this question can neither be answered in the positive nor can it be answered in the negative. This is premised on the fact that there is no statute governing adoption amongst Christians and therefore the law is largely determined through diverse customs and conflicting judicial decisions. This question is further complicated due to diverse positions relating to adoptions in case of abandoned children, adoptions by guardians and adoption from original parents.
The customs in which Indian Christians are allowed to adopt are the agricultural tribes of Punjab (Sohan Lal V. A.Z. Makuin, AIR 1929 Lahore 230) and the Syrian Christians of Travancore, Kerala. (Rao Bahadur L.K. Anantakrishna Ayyar in “the Anthropology of Syrian Christians”.) On the other hand, customs in Goa have apparently considered adoption to be legally impermissible. (Carlos Tavora and Ors. v. Maria Felicidade Fernandes e Lobo and Ors.)
As far as judicial decisions are concerned, Bombay, Kerala, Karnataka (AIR 2007 Kant 121) and Rajasthan High Court (RLW 2008(4)Raj3409) have held that adoption is not prohibited amongst Indian Christians and in fact the Canon law permits it. In Allhabad High Court however, in Ajit Datt v. Mrs. Ethel Walters, G.P. Mathur, J. took the position that there is no custom amongst the Indian Christians that allows adoption. Even in countries like US and UK where there is a predominant Christian population adoption was permitted through statutes. Since in India there is no legislation permitting adoption amongst Christians, they cannot legally adopt.
The greater complexities arise when these courts discuss the question on formalities necessary for a valid adoption and the circumstances of the adoption. The Bombay High Court in the matter of Manuel Theodore D’souza laid down a principle in respect of abandoned children and it held, “In the absence of any legislation setting out who can adopt, person or persons who has/have taken a child in guardianship under the Guardians & Wards Act will have the right to petition the courts to adopt the child.” Thus the scope of this judgment is restricted to Indian Christians who have taken a child in guardianship and are seeking to adopt such child. The Kerala High Court in Maxin George v. Indian Oil Corporation, opines that among Christians also formalities of adoption takes place in the physical act of giving and taking of the child (like under the Hindu Adoption and Maintenance Act). The same court however held in Philips Alfred Malvin v. Y.J. Gonsalvis that the fact of adoption being mentioned in the baptism certificate constitutes valid adoption. Then there is also the Juvenile Justice Act, which permits Indian Christians to adopt but this again governs only institutional adoption.
In conclusion, the current position therefore is that most of the courts excluding one or two have held that according to custom Indian Christians may adopt. Christians can definitely adopt in the states of Maharashtra, Punjab, Kerala, Karnataka, and Rajasthan. In Maharashtra, Christians can adopt only after being guardians of the child and by petition to the court. In Kerala adoption in all cases is possible and various ceremonies may be considered valid like baptism, or physically giving and taking the child. With the entry of Juvenile Justice Act all Indian Christians can adopt institutionally as per the procedures prescribed in the Act.
It is time that the legislators step in and bring into force a legislation that will codify and unify the law governing adoptions amongst Indian Christians, so that there can be certainty in the area of intestate succession especially when the deceased leaves behind adopted children.
The customs in which Indian Christians are allowed to adopt are the agricultural tribes of Punjab (Sohan Lal V. A.Z. Makuin, AIR 1929 Lahore 230) and the Syrian Christians of Travancore, Kerala. (Rao Bahadur L.K. Anantakrishna Ayyar in “the Anthropology of Syrian Christians”.) On the other hand, customs in Goa have apparently considered adoption to be legally impermissible. (Carlos Tavora and Ors. v. Maria Felicidade Fernandes e Lobo and Ors.)
As far as judicial decisions are concerned, Bombay, Kerala, Karnataka (AIR 2007 Kant 121) and Rajasthan High Court (RLW 2008(4)Raj3409) have held that adoption is not prohibited amongst Indian Christians and in fact the Canon law permits it. In Allhabad High Court however, in Ajit Datt v. Mrs. Ethel Walters, G.P. Mathur, J. took the position that there is no custom amongst the Indian Christians that allows adoption. Even in countries like US and UK where there is a predominant Christian population adoption was permitted through statutes. Since in India there is no legislation permitting adoption amongst Christians, they cannot legally adopt.
The greater complexities arise when these courts discuss the question on formalities necessary for a valid adoption and the circumstances of the adoption. The Bombay High Court in the matter of Manuel Theodore D’souza laid down a principle in respect of abandoned children and it held, “In the absence of any legislation setting out who can adopt, person or persons who has/have taken a child in guardianship under the Guardians & Wards Act will have the right to petition the courts to adopt the child.” Thus the scope of this judgment is restricted to Indian Christians who have taken a child in guardianship and are seeking to adopt such child. The Kerala High Court in Maxin George v. Indian Oil Corporation, opines that among Christians also formalities of adoption takes place in the physical act of giving and taking of the child (like under the Hindu Adoption and Maintenance Act). The same court however held in Philips Alfred Malvin v. Y.J. Gonsalvis that the fact of adoption being mentioned in the baptism certificate constitutes valid adoption. Then there is also the Juvenile Justice Act, which permits Indian Christians to adopt but this again governs only institutional adoption.
In conclusion, the current position therefore is that most of the courts excluding one or two have held that according to custom Indian Christians may adopt. Christians can definitely adopt in the states of Maharashtra, Punjab, Kerala, Karnataka, and Rajasthan. In Maharashtra, Christians can adopt only after being guardians of the child and by petition to the court. In Kerala adoption in all cases is possible and various ceremonies may be considered valid like baptism, or physically giving and taking the child. With the entry of Juvenile Justice Act all Indian Christians can adopt institutionally as per the procedures prescribed in the Act.
It is time that the legislators step in and bring into force a legislation that will codify and unify the law governing adoptions amongst Indian Christians, so that there can be certainty in the area of intestate succession especially when the deceased leaves behind adopted children.
Comments
Post a Comment