Valid Adoption By Christians Made As Per Civil Law Is Recognized Under Canon Law: Kerala High Court

The Kerala High Court has held that there is no prohibition under Canon Law for a valid adoption for Christians. In doing so, the Court referred to the 'Code of Canons of the Eastern Churches', where there is a mention of adopted children. Further Canon 110, which is followed by some sects of Christians, provides that, children, who have been adopted according to the norm of civil law are considered the children of the person or persons who have adopted themThus, Justice A. Badharudeen observed that though there is no personal law in India for Christians recognising adoption, a valid adoption as per the civil law is recognised by Canon Law.“Thus, there is no prohibition in Canon Law for having a valid adoption. But there is no personal law in India applicable to Christians recognizing adoption. But a valid adoption made in accordance with civil law as applicable to the child adopted and the adopted parents is recognized by Canon Law. The essentials of a valid adoption are capacity of the adopter, capacity of the adoptee, capacity of the giver, consent and compliance of the civil law."The Court further observed that the ancient custom applicable in the diocese is to take the person they intend to adopt before the Bishop or Prelate with certain testimonials and declare before him that they take such a person as their child. Upon that, the Bishop will give an 'Olla' or certificate and the adoption is completed. This adoption shall not be done for anyone who has children of their own. Further, the Olla will be invalid if afterwards, they have biological children, the court noted.The Court held that in order to prove adoption, there must be evidence of actual formality of the physical act of giving and taking the child. The Court said that baptism certificate showing the name of the adopted parents or a long association with the family will not give the status of an adopted child to a person.The observations were made while the court was considering a challenge in a partition suit. The suit was filed by the siblings of the deceased. However, the wife of the deceased opposed the suit saying that the suit was filed incorrectly claiming that the deceased had no children. She said that the District Court had given guardianship rights to her deceased husband over a child from a children's home and they have bought up the child as their own with full right of inheritance. The 'adoptee' also challenged the suit claiming he was the adopted son of the deceased. However, the trial Court passed a preliminary decree for partition in favour of the siblings. Against this, the mother and adopted child approached the High Court in an appealThe High Court noted that even though in the petition filed by the deceased and his wife before the District Court, they submitted that they were prepared to bring up the child as their own with full rights of inheritance as a biological child, the court only granted guardianship rights to the deceased. The Court said that there was no order in the form of granting adoption. The appellants had produced the Baptism Certificate and Mamodisa register (Baptism register) to show that the deceased and his wife were shown as the parents of the child. The Court said that to prove a valid adoption, the actual formality of giving and taking of the child must be established which they could not do, adding that a mere expression of consent or the execution of a deed of adoption without proving the physical act of giving and accepting the boy or a girl in adoption will not be sufficient even under the principles of Hindu Law.Upholding the trial court order, the high court dismissed the appeal. Counsel for the Appellants: Advocates George Joseph (Ittankulangara), Jacob ChackoCounsel for the Respondents: Advocates Roy Chacko, Sethuram Dharmapalan, Jomy George, Bhanu ThilakCase No: RFA 166 of 2008Case Title: Mary Joseph and Another v Thomas Joseph and OthersCitation: 2025 LiveLaw (Ker) 202Click Here To Read/ Download Order

Valid Adoption By Christians Made As Per Civil Law Is Recognized Under Canon Law: Kerala High Court

Manju Elsa Isac

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