Non-Hindus Now Allowed to adopt Children; SC in Pharez John Abraham v. Arul Jothi Subramaniam (2019)
Updated: Apr 21, 2020
The author in this post has analysed the landmark case of 2019 post which now Non-Hindus can now adopt children even though when there is no such law in their personal laws.
Pharez John Abraham (Dead) v. Arul Jothi Subramaniam K. & Ors. AIR 2019 SC 4235
Muslims, Christians, and Parsis did not have adoption laws but after the decision in the landmark case of Shabnam Hashmi v. Union of India, Honourable Supreme Court held that non-Hindus can also adopt children under the Juvenile Justice Act, 2015. Also, it was held that adoption created a legal fiction and the child becomes the natural heir. All these recent developments in family law had led to prove the legitimacy of adopted or live-in children. Instant case deals with the family settlement between a family which include natural children and adopted children as well. The judgment has been decided by Honorable Mr. Justice L. Nageswara Rao and Honourable Mr. Justice M.R. Shah.
Facts of the Case
In the instant case, John D. Abraham died in the year 1964 without bequeathing any property to his family. The genealogical tree is given below.
The details of the parties to petition:
1. Whether the defendant no 3 to 5 have any share in the suit property belonging to John D Abraham?
2. Whether the settlement incurred and pleaded by the defendants binding upon the parties?
Arguments of Petitioner
1. It was contended that the High Court has acted vehemently by not taking into matter the case of defendant no 1 & 2 and also there was a family settlement, as a result of which A.S. Meenakshi had given up her share.
2. It has been contended on behalf of the petitioner that at the time of marriage of A.S. Meenakshi to a Hindu guy, there was no support from her family and they prohibited her to marry. As a result of which she converted to Hinduism and relinquished her share in the suit property of John D Abraham by accepting the amount of Rs. 50,000/-. The High Court dismissed to accept the same as there was no Deed of Relinquishment executed by her to which petitioner argued that family settlement need not be registered.
3. It has been contended that A.S. Meenakshi did not claim her share when she was alive, although John D Abraham died intestate. Also, Defendant, no 1 & 2 spent a huge amount in the repair of the suit house.
4. It has been contended that the suit was barred by limitation. The High Court ignored that the suit was within the period of limitation as it was filed within one year of the demise of A.S. Meenakshi. Also, the High Court disregarded the fact that in Christianity, the property is divided immediately after the death of an intestate person. The suit was clearly barred by limitation as the period of limitation was 12 years from the death of John D Abraham.
5. It has been contended that the fact that defendant no 3 to 5 had 1/4th share in the suit property despite the fact that defendant no 3 and late Maccabeaus were the illegitimate children of John D Abraham was also ignored. Even otherwise, the High Court dismissed the fact that adopted Christian children are entitled to his/her share in the property.
6. Also, it has been contended that the defendant no 3 to 5 would not have claimed any share in the suit property in the absence of any counterclaim.
Arguments of Respondent
1. It has been submitted on behalf of the respondent that in absence of any Deed of Relinquishment executed by A.S. Meenakshi to prove her relinquishment in the share and in absence of any evidence regarding this, the same was rightly interpreted by the High Court.
2. It has been contended that according to the provisions of the Indian Succession Act 1925, even a non-Christian (in the instant case; Hindus) can claim a share in the property of Christian died intestate.
3. It has been contended that with regard to the issue of limitation, the learned trial court had not farmed any explicit issue and hence, not to hold that the suit was barred by limitation.
4. It has been contended that defendant no 3 and deceased Maccabeaus were the illegitimate children of John D Abraham. But even adopted children can claim share in the suit property.
5. It is submitted that in a partition suit, every heir of the deceased who died intestate would possess a right and the share in suit property can be claimed without any filing of the counterclaim. Also, never before such a plea was entertained by the High Court, hence is not allowed.
The reasoning behind the case
It has been contended that the High Court had acted vehemently in giving plaintiffs 1/4th share in the suit property. The defendant argued that A.S. Meenakshi converted into Hinduism and the married to original plaintiff no. 1 and this was opposed by her family. She was paid her some of the money and some gold ornaments for relinquishing her rights. So, the Trial Court relied on evidence and the conduct of A.S. Meenakshi and dismissed the case on the ground of limitation.
Now, the High Court held that original defendant no 3 to 5 are having 1/4th share in the property. The defendant no 3 to 5 did not field any counterclaim in the suit claiming a share in the property and the suit was dismissed. The original defendant no. 3 to 5 are aggrieved by the impugned judgment and hence their appeal is maintainable under § 96 of CPC.
The court relied on the judgment of Baldev Singh v. Surinder Mohan Sharma, in which it was held that the suit under § 96 of CPC is maintainable only at the instance of aggrieved person dissatisfied by the judgment or the decree passed. Now, the appeal filed by original plaintiffs for dismissing the suit for partition is allowed for cross objection by the defendant no. 3 to 5. As per settled proposition of law, the cross objection is nothing but one form of appeal. In the instant case, instead of filling cross objection, original defendant no. 3 to 5 filed a separate appeal challenging the order passed by the trial court. So, they can be said as aggrieved by the impugned judgment.
Initially, defendant no 3 to 5 were not the parties to the suit but were added on the objection taken by the defendant no 1 & 2. The claimed that defendant no 3 and late Maccabeaus were also the heirs of deceased John D. Abraham and hence the suit is bad for non-joinder of proper parties. In the Written Statement, they admitted that defendant no 3 and late Maccabeaus were the children of John D. Abraham despite they being the adopted children of him. Also, there are no restrictions in Christian religion regarding the adoption of children hence, they were entitled to claim a share in the property. It was also seen as above stated that there are no restrictions in Christian religion regarding the adoption of children; so they were entitled to their share in the property. In the case of A.S. Sailaja v. Principal, Kurnool Medical, it was held that adopted children have every right as the natural-born child has.
Therefore, by virtue of adoption, a child gets all the rights he/she is entitled to like that of the natural-born child. The rights of the natural children are replaced by the adoptive child and he would be entitled to those rights as being a member of the family. So, defendant no 3 and defendant no 4& 5(jointly) are the co-sharer in the suit property and had to be divided equally into three parts amongst original defendant no. 2, defendant no. 3 and defendant no. 4 & 5. Hence, the order passed by the High Court giving 1/4th share in the property to original defendant no 2 & 3 and defendant no 4 & 5 is to be set aside.
In the light of the above-mentioned arguments and reasoning, the order passed by the High Court had to be quashed and set aside and the decree passed by the trial court is restored. The appeal by original defendant no 3 to 5 is allowed and modifications are to be made in the order passed by the High Court and it has been held that original defendant no 2, original defendant no 3 and original defendant no 4 & 5 will have 1/3rd share in the suit property.
We see that adopted children of John D. Abraham were also given a share in the suit property despite the fact the mother A S Meenakshi has relinquished her share in the property of her father. They being the adopted children were given equal rights as to the natural-born children of John D. Abraham.
 Shabnam Hashmi v. Union of India, WRIT PETITION (CIVIL) NO. 470 OF 200.  Shrinivas Krishnarao Kango v. Narayan Devji Kango, 1954 AIR 379.  D. Velusamy v. D. Patchiammal, 2010 10 SCC 469.  Pharez John Abraham v Arul Jothi Subramaniam K. Ors., AIR 2019 SC 4235 ¶ 6.2.  Id ¶ 6.  Phillip Alfred Malvin v. Y J Gonsalves, AIR 1999 Ker 187.  Indian Succession Act, 1925, No. 39, Acts of Parliament, 1925 (India).  Civil Procedure Code, 1908, § 96, No. 05, Acts of Parliament, 1908 (India).  Baldev Singh v. Surinder Mohan Sharma, (2013) 1 SCC 34.  Id. ¶ 8.  Philip Alfred Marvin v. V.J. Gonsalves, AIR 1999 Ker 187.  Guardian and Wards Act, 1890, No. 8, Acts of Parliament, 1890 (India).  A.S. Sailaja v. Principal, Kurnool Medical, AIR 1986 AP 209.
Sherry Shukla and Arpit Lahoti,
Maharashtra National Law University, Nagpur
(Images used for representative purpose only)