This article has been written by Ms. Komal Rawat, a 2nd year student of Lloyd School of Law, Greater Noida, Uttar Pradesh.
INTRODUCTION:
The article aims to present before you the inheritance rights of an adopted child which are provided under Christian Law. This article will talk about it in detail firstly how it evolved then how regulated by the legislature and precedents of judgements. In past a person who wishes to adapt a minor child usually approached the court under the provisions of Guardian & Ward Act of 1890. And there is no specific statue enabling or regulating adoption among Christians in India. Adoption under Christian law is not recognised under any of the legislative enactments, be it the Christian Marriage Act 1872 and Divorce Act 1869. Devolution of property among Christians in India is regulated by ISA of 1925 which recognises the relationship only by consanguinity that is blood hence adopted children have no right in property as heir. The property of an intestate devolves upon those who are kindred of the deceased and kindred have been defined as a relation of the person descended from the stock or common ancestor. Following the principle of consanguinity, the surviving child in the absence of any other lineal descendant, inherits the entire estate leaving no room for the inheritance rights of adopted children. The Guardianship & Ward Act of 1890 was under which who wishes to adapt a minor child usually approached the court under this provision.
Inheritance rights of Christians under Indian Christian Law
The current Indian legal system has been significantly influenced by the British rule in India. It is essential to understand that era of Indian history because many of the laws that the British passed are still in effect today. Basically, the situation of Christians in India was not good as they were the one Muslims or Hindus who were converted into Christians and their old religious laws no longer applied to them, so it was unclear what kinds of Laws applied to them and their offspring. And it was also impossible to apply English laws on them in case of succession, marriage, divorce, etc. because they were not even Britishers. At present they were under challenging position as they were having no personal laws through which they would we regulated in property, succession, adoption, marriage, etc. The situation then become a little uncertain and then the need for a new personal law emerged because Indian Christians found themselves in a legal void which then resulted in need for a new personal law for them as they were not having it in the same sense of Hindu or Muslim law. Also, people usually refuse to give their property to them who were converted but even though the law of the previous religion could be applied to converts in terms of inheritance, such a thing would be completely impossible in terms of marriage, divorce, or adoption. The current Indian legal system has been significantly influenced by British rule in India. It is essential to understand that era of Indian history because many of the laws that the British passed are still in effect today.
Legislative developments as regards to adoption under Indian Christian Law
After Independence, the matters relating to the manner and method of adoption, the rights and obligations of the adoptive parents and of the adopted child, are all to be governed by statute made by the Indian legislature. As Christians of India were converted from Hindus and Muslims so they were not having such laws in India, the law of Church or the Canon law of Christians does not prohibit adoption and legislature has still yet to take a positive step in this direction. The right of adoption for Christians in India has come to be judicially recognised, but it has to be pleaded and proved on the facts of each case. In the absence of a customary adoption recognized by court or adoption orders obtained under the provisions of the Juvenile Justice (Care and Protection of Children) Act 2006, 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 as the foster child or children do not have any right of succession. There were no specific provision or statue earlier but after 1865 legislature started looking into these critical issues and then in 1972 the Adoption of Children Bill, 1972 was enacted from 1980 and then Christian Adoption & Maintenance Bill, 1990 came up. Legislature came up with lots of Adoption Laws.
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Judicial developments as regards adoption under Indian Christian Law
The Supreme Court of India has expanded the scope of one’s right to adopt but yet to give a definite ruling on the rights of Christians to adopt. Contradicting judgements of various High Courts have explored the rights of Christians to adopt by delving into Canon Law or the customary law of adoption, or by giving an expansive meaning to the right to life of the adoptive child or adoptive parents. On the subject of adoption, the Supreme Court, in its landmark judgement Lakshmi Kant Pandey v. Union of India (AIR 1984 SC 469), has accepted the right of a child to include the right to a home, a name and a family as a part of his or her right to life. Although Lakshmi Kant does not deal with adoption rights for Christians in India, it is a breakthrough case relating to adoption of Indian Children by persons outside India. The question regarding the rights of Christian Indians to adopt a child came up for consideration for the first time before the Kerala High Court in Philips Alfred Malvin v YJGonsalves,31 wherein the single judge bench held Christian law does not recognise adoption but at the same time accepted that neither Christian lawnor Canon Law prohibit adoption. Accepting the philosophy of adoption under Hindu law, it observed that in addition to 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 old age and for dying in satisfaction that one has left an heir to one’s property. The right of the couple to adopt a son is a Constitutional right guaranteed under Art 21 of the Constitution.
In absence of statutory law on adoption of Christians, Personal law & Customary law on adoption has to come to be recognized by the Indian Courts in some of the Judgements like Sohan Lal v. A. Z. Makuin (AIR 1929 Lahore 230), Ranbir Karam Singh v. Jogindra C. Battachargi (AIR 1940 All. 134), Makhin Than v. Ma Ahma (AIR 1934 Rangoon 72) and Philip Alfred Malvin v. Gonsalvis (AIR 1999 Ker. 187).
Adoption as means of rehabilitation under the Juvenile Justice (Care and Protection of Children) Act 2006
The right of adoption for Christians in India has come to be judicially recognized, but it has to be pleaded and proved on the facts of each case. In the absence of a customary adoption recognized by court or adoption orders obtained under the provisions of the Juvenile Justice (Care and Protection of Children) Act 2006, 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 as the foster child or children do not have any right of succession. The children were adopted under this act under Section 41 of this act. The decisions of the Bombay, Kerala and Allahabad High Court were delivered before Parliament amended the JJ Act 2000, through the Juvenile Justice (Care & Protection of Children Amendment) Act 2006. The interpretation of the provisions of the JJ Act 2000, as amended in 2006, and HAMA 1956 came before the Bombay High Court in 2010. At times the High Courts have taken proactive steps with regard to recognising rights under Christian law to adopt a child.
The Guardians & Wards Act, 1890
Under, Guardians & Wards Act of 1890 the Muslims, Parsis and Christians were guided as they were not having their own personal laws on adoptions. In this act there are total of IV chapters with fifty- three sections.
Chapter- I: usually talks about title, extent, definitions and jurisdiction of courts of Wards & Chartered High Courts,
Chapter- II: usually talks about appointment & Declaration of Guardians
Chapter- III: usually talks about Duties, Rights & Liabilities under which based on General, Guardian of person & Guardian of property & Termination of Guardians.
Chapter- IV: usually talks about Supplemental Provisions which is the important most and the heart of the act.
In India, there is no legal way for non-Hindus to adopt a kid; instead, they are only able to take on a “guardianship” under the 1980 Guardian and Ward Act. Also, it does not give the adopted child same status as being a biological child as children adopted under it does not have a legal right to inherit property under it, also the parents who have adopted a child under this act they would we considered as an guardians of that child not the parents as if that child attains the majority age mentioned under the Indian Majority Act can take its own decisions and the parents which were appointed though this act will doesn’t have an binding effect on that child as they were only considered them its guardians not parents according to this act. So, this would we considered as a big loop hole which is faced by these Christians, Muslims and Parsis who adopt child under it and also this would be the main reason because of which some are not adopting Childs who belongs to these religion. Christians can adopt a child from an orphanage with the permission of the relevant court following the Guardian and Ward Act of 1980, just like Muslims and Parsis can. According to the Act, a Christian can only adopt a child. When the child turns 21, he or she can stay with the guardian or sever all ties. Additionally, such a child is not entitled to inherit the property by law.
CONCLUSION:
The Indian Christians encountered a legal gap at some point in history that needed to be filled. Due to the British decision to forgo enforcing a uniform civil code in favour of letting Indians maintain their traditions, there are no laws governing newly converted Christians. In order to succeed or inherit after the members of their family, the Christians needed to demonstrate that they were still Muslims or Hindus. However, they also desired to establish their own legal system and establish their hybridity. Adoption is mentioned in the Christian Bible several times. Many of those scriptures and verses use adoption as a metaphor for belonging in the universal family of faith. In context, adoption means you are loved by God. You may also find comfort in knowing that several biblical heroes were adopted. There are more than two crore Christians living in India. When the countries laws are being applied, it is crucial to take their wishes and rights into account and need to establish proper adoption laws. The courts with their practical approach are filling the gaps left in the personal laws with respect to adoption. Courts have facilitated adoption under Christian law but no specific law has yet been laid down. There is no suggestion of the reintroduction of the Adoption Bill or any remedy to the long felt need to have a uniform law of succession. The position must be rectified, especially since adoption is recognised within the religious custom of Christians in India.
REFERENCES:
https://legalupanishad.com/christian-laws-in-india/
https://www.christianfort.com/ICAA.htm
https://www.indiakanoon.org/doc/1166543/
ACTS
The Guardianship & Ward Act, 1890
Juvenile Justice (Care & Protection of Children’s) Act, 2006
CASES
Sohan Lal v. A. Z. Makuin (AIR 1929 Lahore 230)
Ranbir Karam Singh v. Jogindra C. Battachargi(AIR 1940 All. 134)
Makhin Than v. Ma Ahma(AIR 1934 Rangoon 72)
Philip Alfred Malvin v. Gonsalvis(AIR 1999 Ker. 187).