Top 10 Landmark Supreme Court & Important Judgments on Adoption

 

In India, Adoption finds a place under personal laws. But, it can take place legally the following three legislations: 

1. The Hindu Adoption and Maintenance Act of 1956;
2. The Guardians and Wards Act of 1890; and
3. The Juvenile Justice (Care and Protection) Act, 2015.

Muslims, Christians and Parsis have no adoption laws in their personal laws, thus they have to approach the court under the Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child under the said Act only under foster care. But, the position has changed after the Supreme Court ruling in the case of Shabnam Hashmi v. Union of India AIR 2014 SC 1281, where the Hon’ble Supreme Court has held that non-hindus can also adopt the children under the Juvenile Justice Act, 2015.

 

I. RELIGION NO BAR FOR ADOPTION

1.    Shabnam Hashmi v. Union of India, AIR 2014 SC

 

In this case the petitioner was a Muslim who had adopted a young girl when she was small. She filed the petition for recognition of the right that a person belonging to any religion could adopt a child since the Muslim law did not allow for adoption.

A three judge bench of the Supreme Court comprising of P. Sathasivam CJI, Ranjan Gogoi and Shiva Kirti Singh J.J. decided this case which dealt with the right to adoption by virtue of the Juvenile Justice Act, 2000, the Rules of 2007 and the CARA guidelines.

It was argued by the All India Muslim Personal Law Board that adoption was only one of the contemplated methods under the JJ Act, 2000 and Islamic Law did not recognise the concept of Adoption. They objected that Islam did not recognise adoption but rather it recognised the concept of Kafala which was similar to adoption.

The Supreme Court held that the JJ Act was an enabling legislation and it aims at achieving the purpose of a Uniform Civil Code. Thus it was held that any person belong to any religion could adopt a child subject to the rules framed. On the point of giving Adoption the status of a Fundamental Right it hesitated but recognised the statutory right to adopt.

 

II. ADOPTION UNDER HINDUS

2. Sawan Ram v.  Kalawanti, AIR 1967 SC 1761

 

In the instant case the deceased had died leaving behind a widow. At the time of his death the deceased several properties and some portion of the property were mortgaged by the widow to another person and some was gifted to the Grand niece. A  case was filed by the appellant on the ground that the mortgage and transfer of property was illegal since the appellant was the nearest relative of the deceased stop. During the pendency of the case the widow adopted a child and thus the litigation failed. After the widow died, the appellant again filed a case for a share in property on the ground that the adoption was fictitious and also because the adoption will not give rights in property.

It was held by the court that an adoption by the female Hindu will not only be for herself but also for her husband who is dead. An adopted son would be deemed to be a member of the family of the deceased husband. Since the adopted child loses all the rights to his biological family, the same are to be replaced by similar rights in the adoptive family. Thus he would get rights of a member of that family as an adopted son of the husband.

 

3.    In Re: Adoption of Payal @ Sharinee Vinay Pathak and his wife Sonika Sahay @ Pathak, 2010(1) BomCR434

 

In this case a petition was filed before the Court wherein the question before the court was that whether a Hindu couple governed by the Hindu Adoptions and Maintenance Act, 1956, who was having a natural child of their own could adopt a child of the same gender by taking recourse of the provisions of Juvenile Justice Act of 2000(JJ Act).

It was held by the Court that the JJ Act provided for the adoption of specific children i.e., those children who were abandoned and were in need of care and protection. It was a different category of children for which a procedure was laid down.

It was held that the Hindu Adoption Act imposed a restriction on the adoption of a child who had the same sex as the Natural child, but the two Acts would have to be read harmoniously.

Therefore, a child could be adopted by a Hindu couple under the JJ Act if the child completed the description of the specific class of children for whom the JJ Act was made. In the instant case the adoption was allowed since the child fulfilled the criteria which were made by the JJ Act.

 

4.    Shrinivas Krishnarao Kango v. Narayan Devji Kango, 1954 AIR 379

 

In this case a petition was filed by an adopted child for a share in the property of his joint undivided property. It was argued by the defendants that the adopted child was only entitled to the property which was ancestral in nature and not the self acquired property.

It was held by the court that in cases where a child was adopted, the effect of adoption is such that it creates a legal fiction and the child becomes the natural heir. Where an adoption is made by the widow of a Hindu then the effect of adoption is such that it relates back and makes him eligible for all the rights of a son from the date of death of the Father.

It was further held that the effect of adoption is such that the son becomes eligible for the share in the properties of the adoptive father. But where a claim is made for the properties of someone else then the rule of adoption back is not followed. The rule which is followed in such cases is that the property which is once vested in some one cannot be divested.

 

III.FOREIGN ADOPTION / INTERCOUNTRY ADOPTION

5.  Laxmi Kant Pandey v. Union of India, 1984 AIR 469

 

In this case, a letter by an advocate was treated as a Public Interest wherein it was stated that voluntary and social organizations and agencies were indulging in malpractices by offering services of inter-country adoption. The children were ending up in poor condition, being forced into beggary and other horrendous things. This case pertained to Adoption of children who were abandoned, destitute and living in the child or social welfare homes.

The Supreme Court took judicial notice and directions were issued.  A regulatory body known as Central Adoption Resource Agency (CARA) was directed to be formed which was to oversee the whole process of adoption.

It was directed that every application for adoption by a foreigner must be sponsored by a child/social welfare agency of the foreigner’s country. The Biological parent must never get to know who is adopting the child.  All the details of the family, assets, liabilities, recent photographs, tax details, medical history etc must be submitted along with the application.

It was further directed that the Government would intimate the embassy in that country to keep a watch on the welfare of the child and safeguard against any ill-treatment.

 

IV. ADOPTION IN CHRISTIANS

6. Philips Alfred Marvin v. V. J. Gonsalves AIR 1999 Ker 187

 

In this case a suit for partition was filed by the adopted child of the deceased. He claimed that he had been brought up as a Christian which was the religion followed by the deceased. it was further contended by him that he was brought up as their natural child, thus he had a share in the property just like the natural children.

The question before the court was that whether adoption was allowed in Christian law.

It was held by the court after referring to Cannon Law that adoption was recognised by Cannon Law however it would have to be proved that the child was an adopted child and the same was done as per the civil law. It would also have to be shown that the parents followed the Cannon Law which allowed adoption or there was a custom in the family which allowed adoption.

It was held that since the Appellant could not prove that he was the adopted child or that the parents followed the cannon Law which allowed adoption he would not be entitled to the share in the property.

 

VI. PROOF OF ADOPTION

8. Rahasa Pandiani (Dead) By Lrs. v. Gokulananda Panda, AIR 1987 SC 962

 

In this case, a Child was adopted by a woman and the child belonged to the sister of her dead brother. The child passed away after some time, and the woman bequeathed her property to some relatives. A suit was filed by another person after several years praying for a declaration that he was the adopted child of the woman.

It was held that when there is a claim for adoption then the same has to be proved by way of clinching evidence. An oral adoption must be presented with some documentary evidence which could dispel the clouds of uncertainty.

It was further held that the process of Adoption makes a huge change in the course of succession. It results in depriving the rights of a wife or a daughter from transferring property to a complete stranger, thus the claim of adoption would have to be scrutinised on the basis of evidence adduced to clear the court of all doubts.

In the absence of any evidence which would show that there was an adoption, it would be wrong and unreasonable to give a declaration for adoption, especially in cases where the claim is being made on the grounds of an Oral Adoption.

VII. ADOPTION IN MUSLIMS

9.    Yaqoob Laway v. Gulla, 2005 (3) JKJ 122

 

In this case a petition was filed by a person for declaration that he was the adopted child of the Couple and he was entitled to a share in the property of the couple. It was submitted by the defendants that they were Muslims and the Muslim law did not allow for adoption and hence he had no right in the share of the property.

It was held by the Court that there is no law for adoption in the Muslim Law, however in certain instances if there is a local custom which is prevalent and allows for adoption then adoption may be allowed. However, just merely that the custom allowed for adoption does not mean that a right in the property is created.

It was further held that a person would have to show that the property was gifted or given to him by way of a deed or document which could prove that the an interest in the property has been created.

In this case the lower court had held that since the claimant was living in the house of the deceased, there was a valid adoption. The High Court invalidated this finding and held that there was no adoption and even if the customary law is taken into account there was no document to show that the property had been gifted to the claimant.

 

VIII. CASTE OF AN ADOPTED CHILD

10. A.S. Sailaja v Principal, Kurnool Medical, AIR 1986 AP 209

 

In this case a girl had applied for an entrance exam for a medical course and she filled the details of her biological father. In the application for taking the admission in the College, she filled the name of her adopted father and also stated that she was claiming social status and had previously not claimed it.

She also filed a Xerox of an adoption deed and a certificate of caste belonging to her adopted father. She was given provisional admission as a backward class, however later she was asked for her adoption and caste certificates and she was also threatened that in the absence of the same her admission will be struck off.

The court in this case held that as far as the adoption goes it seemed valid and the petitioner had every right as the natural child of her adopted father. However, with regard to the caste it was held that the same could not pass to her since she had not faced in any difficulty in her upbringing or faced any disability. She was only entitled to the rights under the personal laws, however she could not gain the benefits of the caste reservations.

 

VIII. ADOPTION BY TRANSGENDERS

 

At present in India, a child can only be adopted by a Male, Female or a Couple. The third gender which has been accorded status and has been recognized by the court as a part of our society have still been kept at bay from receiving this right.

The Shabnam Hashmi case has although opened the gates for people from all religion to adopt a child, still there are areas which are to be looked at. Maybe one of the reasons why the Court stopped short of making adoption a fundamental right was the after-effects of such a status because then all people belonging to the LGBTQ would have become stakeholders.

However, a Transgender Bill has been introduced in the Parliament and the Standing Committee of the Parliament has also recommended the inclusion of provisions related to marriage, divorce and adoption with regard to the transgender.

Several years back a very heart-wrenching advertisement was aired by a company which had shown the relationship between a child and her caretaker who was a transgender and had been accorded the status of a parent by the child. It cast a light on a reality which actually exists and there are many people from the trans-community who have brought up abandoned babies as their own.

Hopefully, the existing scenario will change and parliamentary notice of this point would also be taken and accepted.