Philips Alfred Malvin vs Y.J.

Gonsalvis, AIR 1999 Kerela 187

Introduction

Adoption of a child is an ancient practice and was known to the Greeks. In Greece 1 the
earliest adoption laws were provided in a practical way. The rules were simple where
an adult of sound mind and childless could only go for adoption. Three different forms
of adoption were recognized. Firstly, it was adoption inter-vivos, secondly through the
testamentary manner and thirdly some relative could adopt the child in the name of the
deceased. It is in these three types that adoption was structured. Except the first type
where there was a contract between living individuals, the motive of other two type of
adoption was to perform certain religious practices. 2 Adoption was resorted to only
where there was no natural born child. Though the institution of adoption was known,
it was not used in the roman period and later became unknown and then as a practice
developed much later in the modern period. The concept of guardianship in the form
of alumni existed. Abandoned children were taken away for slavery. When many
children were abandoned in the church, the system got institutionalized and the
concept alumni or guardianship got more importance. With this institutional care
developed the system of placing the kids back into families. In the modern period that
is in the 19th century the system of adoption was brought back. But from the
beginning India and China had the system governed by personal laws. The uniform
law of domestic adoption in China came in the year 1981. Even initially Common law
did not permit adoption. Illegitimate children were looked down by the society. Then
church had promoted this institution of adoption. Adoption is defined as a civil death
of a child in the natural born family and the legal birth of the child in the adopted
family. Thus, it is only a mere transplantation of the child from one family to another
family. It is a pious deed by which both a child without a home and parents without a
child would find happiness. It may be a blessing for one or for both. While analysing
the history of adoption law in India, it is quite clear that the ancient Hindu law
1
Code of Hammurabi
2
http://www.un.org/esa/population/publications/adoption2010/child_adoption.pdf
believed that a son3 was needed for the performance of religious practices and for
continuation of the lineage4 . Adoption of female child was neither recognized nor
prohibited. Therefore, people rarely adopted a female child. Women didn’t have the
freedom to adopt. This shows that the Hindu culture though recognized adoption; it
was not free from gender injustice. Religious importance given to this act has led to
the personal law dominance over it. With Hindu Adoption and Maintenance Act 1956,
gender justice was provided and women got the freedom to adopt. It provides for
adoption of both a boy and a girl. This Legislation is said to have adopted a secular
object of adoption. In Sandhya v. UOI5 , honourable judiciary said that this legislation
has a mythological and secular mission. But is it really secular in nature? It is religion
specific. Secularity here is only with respect to adoption of child of any gender.
Otherwise it is a law for Hindus. Instead of personal law dominance there was a need
to bring it under general laws so that every person irrespective of religion could have
adopted. If proper initiatives would have been taken during the period of codification
of laws, adoption would not have been a part of personal laws. Among Hindus it
became a part of personal laws because of the importance of the customary practice of
sonship that existed in families, property and future marriage laws that was based on
personal laws. With the enactment of Hindu law of adoption gender related issues
were removed. So, a male and a female child could be adopted. Married couples need
to adopt with the consent of the spouse. A widower, widow, spinster and a bachelor
can adopt a child. Further the law prohibits a person having a naturally born or
adopted male or female child from further adopting the child of same gender.

Background

3
Sonship: that was recognized in twelve different forms in the ancient period for spiritual reasons.
Manu also defines adoption as a substitution of a son
4
As already decided by Privy council in Rama Subbaya v. Chenchu Rammayya, „that the substitution
of a son of the deceased for spiritual reasons is the essence of the thing and the consequent devolution
of property is a mere accessory to it. ‟ Similar opinion was given in another judgment of
Chandreshekhar Mudaliar v. K. Mudaliar.
5
AIR 1998, Bom 228.
Plaintiff claimed that he is the adopted child of the abovesaid George Correa and Jane
Correa.

According to the him, he was adopted by George Correa and Jane Correa on 8.6.1946
at Kannur Holy Trinity Church, and was brought up by them along with their natural
children. He being an adopted child, with the natural children he is also a legal heir of
Correas, was his case. With the natural children of Correas, he is also entitled to
succeed to their estate left behind, the plaint property, and as such, a decree for
partition of the property into 4 equal shares and allotting of one such share to him, was
applied for in the suit.

The 2nd defendant alone resisted the claim for partition disputing the status of the
plaintiff as an adopted child of her parents. Though he was treated by her parents and
also by the members of the family as a close relation and he was given a lot of
encouragement and assistance, according to this defendant, that would not confer on
him the status of an adopted child of her parents and thus to claim a share in their
estate. There was no valid and legal adoption of the plaintiff by her parents, and even
on the date on which the plaintiff claimed of his adoption, his natural father viz., Sri.
T.J. Netto was alive and so much so, there could not be a legal adoption of the
plaintiff by her parents was the further contention of the above defendant to resist the
suit claim for partition.

On the pleadings of the parties, the trial court raised the following issues for
adjudication:

1. Whether the plaintiff is the adopted son of George Correa?

2. Whether the plaintiff has any right to claim partition of the plaint property?

On the materials placed which consisted of Pws.1 and 2 and Exts. A1 to A8 for the
plaintiff, but with no evidence, oral or documentary for the contesting defendant, the
trial court concluded that the plaintiff is an adopted son of the Correas and as such he
is entitled to a share in their properties with the natural children. Accordingly, a
preliminary decree was passed directing division of the suit properties into four equal
shares and allotting of one such share to the plaintiff.

In the appeal preferred by the 2nd defendant, the lower appellate court, after re-
appreciating the materials tendered, in the backdrop whether the personal law of the
parties, who are admittedly Christians, recognize adoption, expressing the view that it
does not, concluded that the claim raised by the plaintiff for partition as an adopted
child of the Correas has not been established in the case. In that view of the matter,
reversing the decree passed by the trial court, the plaintiff was non-suited. Aggrieved
by the dismissal of the suit, the appeal was preferred. This Court had earlier set aside
the judgment of the lower appellate court and restored the decree of the trial court,
allowing the appeal. The judgment of this court was challenged before the Apex Court
by the 1st respondent, one among the legal heirs of the 2nd defendant. The Apex
Court, after setting aside the judgment of this court, has remitted the appeal, for
hearing and disposal, after specifically formulating the questions of law and answering
the same, in accordance with law.

Substantial questions of law were recast as hereunder for hearing of the appeal.

1. Whether Christianity/Christian law recognizes adoption of children?

2. Whether the appellant as an adopted child is a legal heir of Sri. George Correa
and Jane Correa under the Indian Succession Act?
3. When the respondent admit that the appellant was treated as a family member
of Sri. George Correa and Jane Correa and also as their relation and as the
appellant continued as a member of the Correa family for a considerable period
of time, will it not raise a presumption under Section 114 of the Evidence Act
that the appellant is the adopted child of Sri. George Correa and Jane Correa?
4. When Ext. A2, A3 and A8 show the appellant as the son of Sri. George Correa
and Jane Correa has not the Lower Appellate Court committed an illegality in
finding that the appellant was not the adopted child of Sri. George Correa and
Jain Correa?
Analysis

Till the date of death of George Correa, the plaintiff was living with him and
thereafter he was residing with the second defendant, enjoying all the facilities of a
brother. Thus, from the admissions of the second defendant, it is clear that the plaintiff
was treated as a member of the family by Correa couple and subsequently by the
defendant. The other defendants, except the second defendant, have no objection
regarding the status of the plaintiff. The second defendant would contend that Correa
couple have not adopted the plaintiff as their son. Christian Law also does not
recognise adoption. But it is an admitted fact that the Christian Law does not prohibit
adoption. The Hindu Adoptions and Maintenance Act provides for adoption of
children by Hindu parents. The main purpose of law of adoption is to provide
consolation and relief to childless person. 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. So
far as Hindus are concerned, adoption is to preserve the continuation of ones lineage.
Apart from the 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 the old age and for dying in satisfaction that one has left a heir to one's
property. It is essentially a transfer of dominion over the child from the natural parents
to the adoptive parents and therefore some essential formalities were prescribed to
effectuate the transfer on dominion. The position of an adopted child in respect of
inheritance and maintenance is the same as that of a natural born child. Nowadays
inter-country adoption is promoted for which the Apex Court has given some
guidelines in Lakshmi Kant Pande v. Union of India, AIR 1984 SC 469.

Let us see whether the plaintiff was adopted by the Correa couple. In order to prove
adoption, the plaintiff has produced Ext. A2 extract from the Register of Baptism kept
in the Holy Trinity Church, Kannur, where the alleged adoption took place. Ext. A2
reads as follows:
"Illegitimate child of Anna, adopted by the god parents, mother gave her consent for
the adoption and Catholic education, to the god parents. Both Anna and John were
Marthomites from Travancore as per the entry in the Baptism Register."

Even though the second defendant's counsel objected to the admissibility of Ext. A2,
the Court below did not find any reason to reject the evidence of Ext. A2. The plaintiff
has summoned the baptism register and the parish priest, who is in custody of Ext. A2.
He was examined as PW-2. PW-2 proved the baptism register and the contents of Ext.
A2. Thus, the plaintiff has proved that on 8-6-1946 the plaintiff was baptised as the
son of Correa couple and that he was adopted by them at the Holy Trinity Church,
Kannur.

The Canon Law does not prohibit adoption. The Code of Canon Law, commissioned
by the Canon Law Society of America, goes to show that Canon 110 relates to
adoption, which reads as follows:

"Children who have been adopted according to the norm of civil taw are considered as
being the children of the person or persons who have adopted them.

Adopted children are usually not at all, or occasionally not wholly, related to the
parents adopting them..........................Church law adopts the civil law pertinent to the
area and states that adopted children are held to be the equivalent of natural children
of an adopting couple in those instances in which adoption has been duly formalized
according to the Civil Law."

Canon 111 provides, that-

"A child of parents who belong to the Latin Church is ascribed to it by reception of
baptism, or, if one or the other parent does not belong to the Latin Church and both
parents agree in choosing that the child be baptized in the Latin Church, the child
is ascribed to it by reception of baptism but, if the agreement is lacking, the child is
ascribed to the Ritual Church to which the father belongs."
From the above Canon Laws, it can be seen that the Church has adopted civil law
pertaining to the area. Therefore, adoption made by Correa couple cannot be said to be
invalid.

Mohammaden Law also recognise adoption if there is custom prevailing among

Mohammaden communities. The custom is accepted to have the force of law, as is
held in AIR 1936 Lahore 465. Section 29 of the Oudh Estates Act, 1869 permits a
Mohammedan Talukdar to adopt a son. In the State of Jammu & Kashmir, the
existence of local custom regarding adoption has been recognised by virtue of Sri
Pratap Jammu & Kashmir Laws Consolidation Act, 1977. The right of the couple to
adopt a son is a constitutional right guaranteed under Article 21. The right to life
includes those things which make life meaningful. Correa couple might have thought
of making their life more meaningful by adopting a son.

Thus, the Hindu Law, Mohammedan Law and Canon Law recognize adoption.
Therefore, simply because there is no separate statute providing adoption, it cannot be
said that the adoption made by Correa couple is invalid. Since the adopted son gets all
the rights of a natural born child, he is entitled to inherit the assets of George Correa
couple. The learned Subordinate Judge went wrong in holding that unless adoption is
recognised either by personal law, custom or by Canon Law, the first respondent
cannot claim right over the plaint schedule property, as the adoption itself is invalid in
the eye of law. Therefore, the decree and judgment appealed against are liable to be
set aside.

In the result, the appeal is allowed and the decree and judgment in A.S. No. 92 of
1989 are set aside and the decree and judgment of the trial Court are restored. No
costs.

Conclusion/Suggestion

The concluding question that we cone to is ‘will these issues settle with drafting of
UCC?’ Uniform civil code in India is difficult to be put into practice but through
adoption a step towards it can be initiated. It all started with religion as seen in the
ancient greek period or hindu culture. But now with the changing circumstances it is
always better to associate it with welfare mechanism of the state and release it from
religious shackles. Judiciary has taken brilliant steps towards attainment of the goal in
above mentioned judgments like Shabnam Hasmi and Philip Alfred Malvin. Instead of
encouraging surrogacy as a practice, state should motivate adoption by bringing a
uniform law of adoption and help the children in need of a home. Judiciary supports
the system and the existing laws are there, the need is to structure it and apply
uniformly. As Judiciary has done its duty and now legislature needs to proceed ahead
by providing an, “UNIFORM LAW OF ADOPTION” as it is the need of the hour.