Can An Adopted Child Claim the Property of their Adoptive Parents?

Introduction

Adoption is the legal procedure through which an adopted kid becomes the legal child of his adoptive parents, with all of the rights, privileges, and duties that a biological child has. It is an incredible social institution that serves the purpose of both the child as well as the parent. Every civilized society should encourage adoption as a means to human relationships. However, in India it is still looked down upon as a social stigma where relatives and parents feel ashamed of adopting a child. Due to the absence of a uniform code, adoption in India is a thwarting process. The presence of a multi faith population in the country obstructs uniformity due to the abidance of personal laws. The paramount consideration is to provide a child a better socio-cultural environment for their best interests and to ensure complete confidentiality on the part of the authorities.

Adoption Laws in India

THE CENTRAL ADOPTION RESOURCE AUTHORITY (CARA)

The Central Adoption Resource Authority under the Ministry of Women & Child [1] regulates adoption through these specified criteria:

• The adoptive parents must be physically, intellectually, and emotionally stable, as well as financially capable and determined to adopt a child. They must also be free of any life-threatening medical conditions.
• Any potential adoptive parent can adopt a child, regardless of his or her marital status or whether or not he or she has a biological son or daughter.
•  Any single female can adopt a child of any gender:
• A single male individual is ineligible to adopt a female kid;
•  Both spouses’ approval is required in the case of a couple;

• No child shall be placed for adoption with a couple until they have been married for at least two years;
• Prospective adoptive parents’ ages as of the date of registration will be used todetermine their eligibility, and prospective adoptive parents’ eligibility to apply for
• children of various ages will be as follows

• In the case of a couple, the potential adoptive parents’ combined age must be taken into account.
• There must be at least a twenty-five-year age gap between the child and either of the potential adoptive parents.
• In the event of related adoptions and step-parent adoptions, the age criteria for prospective adoptive parents will not apply.
•  Couples with three or more children are not eligible for adoption, save in the cases of special needs children as described in sub-regulation (21) of regulation 2, difficult to place children as defined in regulation 50, relative adoption, and step-parent adoption.

HINDU ADOPTION AND MAINTAINANCE ACT

Under The Hindu Adoptions and Maintenance Act, 1956 [2] the specified criteria must be followed for adoption:

• “Any male Hindu (including Buddhist, Jain, or Sikh) of sound mind who is not a minor is entitled to adopt a son or daughter.” However, if such a man had a living spouse at the time of adoption, he can only adopt a kid with his wife’s agreement only (unless she has been declared incompetent to give her consent by the court).
• “Any female Hindu (including Buddhist, Jain, or Sikh) who is unmarried, or if married, whose husband is deceased, her marriage has been dissolved, or her husband has been deemed incapable by the court, has the power to adopt a son or daughter.”

CRITERIA FOR ADOPTION BY HINDU COUPLES OR SINGLE PARENT

1. If a Hindu male or female adopts a son, there must be no living son in the party’s subsequent three generations (whether by genuine blood link or adoption) at the time of adoption.
2. Any Hindu male or female who adopts a daughter should not have any daughters or son’s daughters at the time of adoption.
3. In the case of a male adopting a daughter, the adoptive father must be at least twenty-one years older than the child.
4. In the case of a female adopting a son, the adoptive mother must be at least twenty-one years older than the child.

JUVENILE JUSTICE (CARE AND PROTECTION ACT) 2000

The Juvenile Justice (Care and Protection Act) of 2000 [3] is India’s first step towards secular adoption. Regulated by the central adoption resource authority (CARA) it lays down the procedures for both inter-country and intra-country transactions. In the case of orphaned and abandoned children below two years of age, The Child Welfare Committee declares children who are legally fit for adoption within two months from the date when the child is produced, If the child is above two years of age the time period extends up to four months. In the case of children who are surrendered, parents and guardians are given two months for reconsideration post which the child is declared surrendered.  However, the Nagpur Bench of the Bombay High Court upheld that the criteria of adoption are not limited to abandoned, orphaned or surrendered children. Close relatives are also eligible to adopt under the Juvenile Justice Act.

ADOPTION IN OTHER RELIGIONS

Unlike Hindus, the personal laws of different religions including Islam, Christianity and Parsi do not recognize adoption. Believers of these faiths can undertake “guardianship” of the child which exists only till the ward attains the age of 21 without any right to legally inherit property. In the landmark case of Mohammed Allahabad Khan v. Mohammad Ismail [4] it was held that adoption is not acceptable in Islam. The same was observed in Shabnam Hashmi v. Union of India[5] where the Supreme Court held that Islam does not recognize the adoption, rather it recognizes the concept of Kafala which means guardianship without inheritance rights and change in family name. Similarly, the Parsi law does not recognize adoption. However, under the Guardian and Ward Act,1980 they can opt for adoption from an orphanage. In Christianity the adoptive parents can adopt an orphan with due permission of the concerned court under the Guardian and Ward Act,1980. However, once the child attains the age of 21, he/she is free to live life on their terms. Like Islam and Parsi even Christianity does not allow for legal inheritance of property.

Position of Law with respect to Property Inheritance

The Hindu Succession Act 1956 [6] does not define “Son”. Therefore, under normal circumstances an adopted child would be legally allowed to inherit the property of the adoptive parents as the case would have been if they had a biological kid. The act mentions that in case of death of a man without a will property will be transferred to Class 1 heirs, there by including adopted children.

However, it must be noted that merely raising a step child is no proof of adoption. In the property dispute case of Ram Das v. Gandiabai[7] the Apex Court held that just because the step father bore the expenses of the step son does not imply adoption. Thus, the son was still was a part of his deceased father’s family and had the inheritance rights of that family. Another judgement of Prafulla Bala Mukherjee v. Satish Chandra Mukherjee[8] hasinsights on the fact that merely sharing the same accommodation does not lead to the presumption or establishment of relation through adoption.  In the aforementioned case the adoptive mother claimed rights over the assets and property acquired by her adopted son. However, the facts of the case disapproved of adoption as the deceased son addressed his biological mother as his mother and made her the nominee of all the insurance policies and funds. Thus, the court held that just because the son allowed his adoptive mother to reside in her house does not allow her property rights over his property.

Can an Adopted Child Inherit Property From Biological Parents?

As per the provisions laid down under the Hindu Adoption and Maintenance Act, 1956 all ties and relations of the adopted child from his biological family will be severed and replaced by the adoptive family. This means that once a child is adopted, he/she is no longer the legal heir to the original property and loses all rights of a coparcener, there by acquiring the property rights of the adopting parents. Nevertheless, if the biological parents before their death leaves a will voluntarily transferring property to their biological child a child may be entitled this property depending upon the personal relations and facts of the case.

What are the Exceptions to Full Transfership of Property Rights?

Though the laws guarantee full ownership of property of adoptive parents to the adopted kids, there are a few conditions which serve as an exception to this law. If the procedure prescribed under various statutes is not duly followed, the adoption will be considered illegal. As a result of this, the adopted child loses all coparcenary rights of the adopter’s property. All the requirements and provisions must be duly followed under all circumstances to make a child eligible for property rights else the court does not deem it to be fit.

Another exception to this law can be disqualified adoptive parents. If the parents of the adoptive parents have been disqualified from the ancestral property, the adopted child also loses the right to inheritance. In such a case the adopted child is entitled only to receive maintenance. The clauses of property inheritance also change if an own biological child is born post adoption. In situations if a natural child is born after adoption both of them will be equal owners of the father’s property. According to act 8 of the Hindu Succession Act a father’s property gets devolves to Class 1 heirs which include a legally adopted son since the act does not define the term “Son”. Thus, like the natural son an adopted child will get equal share in property if the father dies without a will.

Conclusion

Adoption proves to be a beneficial cause if it bears fruit for the parentless child who dreams to get the same share of love and affection as a natural child does. The inheritance rights of Hindus have witnessed tremendous improvement in the last decades. However, there is still a need for a uniform civil procedure to ensure legal adoption in case of other religions especially Muslims. There is a sufficient population of kids who are physically and mentally fit but lack proper parenting due to misfunctioning of laws. Under Hindu Law, an adopted kid cannot be discriminated from a natural born in any of the aspects. The inheritance rights of the adopted kids are protected under legislation and if violated, are entertained by suitable authorities. Equal transfer ship of property to adopted kids without discrimination will ensure social justice and help in reducing inequality. Inheritance of property ensures responsibility of an adopted kid towards the adoptive parents and also a sense of belonging in the adopted kids there by fulfilling the void of human relationships.

This article is authored by Muskan Sharma, student at Institute of Law, Nirma University

References

1. http://cara.nic.in/
2. https://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf
3. https://www.advocatekhoj.com/library/bareacts/juvenile/index.php?Title=Juvenile%20Justice%20(Care%20and%20Protection%20of%20Children)%20Act,%202000
4. https://indiankanoon.org/doc/1274751/
5. https://indiankanoon.org/doc/105818923/
6. https://indiankanoon.org/doc/685111/
7. https://main.sci.gov.in/jonew/judis/14754.pdf
8. https://indiankanoon.org/doc/1609488/