Adoption Custom and Usage in India

The Interplay of Custom, Usage, and Statutory Law in Indian Adoption Jurisprudence

Introduction

Adoption, a socio-legal institution that creates a parent-child relationship between individuals not biologically related, holds profound significance in personal and property laws. In India, a nation characterized by its pluralistic legal framework, the law of adoption is a complex tapestry woven from statutory enactments, diverse personal laws, and deeply entrenched customs and usages. This article undertakes a scholarly analysis of how custom and usage pertaining to adoption are recognized, proven, and interact with codified law within the Indian legal system. While the Hindu Adoptions and Maintenance Act, 1956 (hereinafter HAMA) serves as a cornerstone for adoptions among Hindus, the role of custom remains pertinent not only within its framework but also in the context of other communities where statutory law on adoption may be nascent or absent.

Defining Custom and Usage in Indian Law

For a custom or usage to be legally recognized and enforced by Indian courts, it must satisfy stringent criteria and be proven through cogent evidence. The judiciary has, over time, delineated the essential characteristics of a valid custom and the burden of proof associated with its establishment.

Essential Characteristics of a Valid Custom

A custom is a rule which, in a particular family, class, community, or district, has from long usage obtained the force of law.[9], [11] The Supreme Court in DURGA GRAM UDYOG SAMITI(REGD.) v. STATE OF PUNJAB[8] reiterated that for a custom to be valid, it must have been acted upon in practice for such a long period and with such invariability and continuity as to show that it has, by common consent, been submitted to as the established governing rule. Indispensable elements include certainty and reasonableness.[8] Furthermore, a custom must not be opposed to public policy[8] or be immoral. The Privy Council, in cases like Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, cited in Laxmibai v. Bhagwantbuva,[3] stressed that customs modifying general law must be ancient, invariable, and supported by unequivocal evidence.

Burden and Standard of Proof

The onus of proving the existence and validity of a custom lies heavily on the party asserting it.[1], [3], [7] This principle was affirmed in Thakur Gokal Chand v. Parvin Kumari,[1] where the Supreme Court emphasized the need for clear and convincing evidence to establish a custom. Mere allegations or insufficient instances are inadequate. For instance, in Laxmibai v. Bhagwantbuva,[3] the presentation of only four instances of intra-family adoptions over 375 years was deemed insufficient to establish a binding custom prohibiting adoption from outside the family. Similarly, in Salekh Chand v. Satya Gupta,[9] witness testimony was found wanting in proving a prevalent custom. As highlighted in Thakur Gokal Chand,[1] citing Subhani v. Nawab, customs must be established through long and consistent usage within a community.

Customary Adoption under Hindu Law: Pre and Post HAMA, 1956

Custom has historically played a significant role in shaping adoption practices among Hindus, a role that continues to be acknowledged, albeit in a more defined manner, under the HAMA.

Traditional Hindu Law and Customary Adoptions

The origin of the custom of adoption in Hindu law is lost in antiquity, with the primary object being to gratify the ancestors through offerings.[8] Ancient texts recognized various kinds of sons, of which the Dattaka (formal adoption) and Kritrima (informal adoption, prevalent in Mithila) forms largely survive.[8] Traditionally, the adoption of a daughter was not generally recognized under Hindu law, unless sanctioned by a specific custom.[4], [24] The validity and incidents of such customary adoptions depended entirely on clear proof of the custom.[24]

The Hindu Adoptions and Maintenance Act, 1956 (HAMA) and Custom

The enactment of HAMA codified and reformed the law relating to adoptions among Hindus. While it has an overriding effect, it also carves out specific exceptions for customs.

Overriding Effect of HAMA (Section 4): Section 4 of HAMA stipulates that, save as otherwise expressly provided in the Act, any text, rule, or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of HAMA shall cease to have effect with respect to any matter for which provision is made in the Act.[10], [18]

Definition of "Custom" and "Usage" (Section 3(a)): Section 3(a) of HAMA defines "custom" and "usage" as any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group, or family.[10], [18]

Recognition of Custom under HAMA (Section 10): Section 10 of HAMA, which lays down conditions for persons who may be adopted, explicitly acknowledges custom in two crucial aspects:

  • Clause (iii) states that the person to be adopted must not have been married, "unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption."[10], [18]
  • Clause (iv) mandates that the person to be adopted must not have completed the age of fifteen years, "unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption."[10], [17], [18], [19], [20], [22]
The party relying on such a custom bears the burden of pleading and proving its existence and applicability.[19], [20]

Presumption for Registered Adoptions (Section 16) and its Rebuttal: Section 16 of HAMA provides that whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of HAMA unless and until it is disproved.[3], [19] This presumption shifts the burden of proof to the party challenging the adoption.[3] However, this presumption is rebuttable. For instance, if an adoption deed records the adoptee as being over 15 years, the presumption of compliance would include the existence of a custom permitting such adoption, but this can be disproved by evidence showing no such custom exists or that other mandatory conditions not saved by custom were violated.[20]

Proving Custom in Hindu Adoptions

Courts require strict proof for customs that derogate from general rules of law.[3] Specific customs, such as the adoption of a sister's son, which might otherwise be questionable under older schools of Hindu law, can be validated if proven.[21] The distinction between "general custom" and "special custom" is also pertinent, with the latter requiring specific proof unless it has achieved judicial notice.[5] Authoritative texts like Rattigan's Digest of Customary Laws have been recognized by courts as valuable sources for ascertaining customs, particularly in regions like Punjab.[6], [12]

Customary Adoption in Other Communities

The legal framework for adoption varies significantly for communities other than Hindus in India.

Muslim Personal Law and Adoption

Traditional Muslim Personal Law does not recognize adoption in the sense of creating a legal parent-child relationship equivalent to that created by birth. The Muslim Personal Law (Shariat) Application Act, 1937, mandates the application of Muslim Personal Law in specific matters listed in its Section 2, overriding any contrary custom or usage. Adoption is not initially enumerated in Section 2. However, Section 3(1) of the Shariat Act allows a Muslim to make a declaration before a prescribed authority stating their desire to have the provisions of Section 2 apply to them and their descendants as if adoption, wills, and legacies were also specified.[16] In the absence of such a declaration, it has been argued that a custom relating to adoption could be pleaded and proved.[16], [23] Courts have entertained claims of customary adoption among Muslims, but require robust evidence to establish such a custom.[23]

Christians and Other Communities

There is no specific statutory law governing adoptions for Christians and certain other communities in India.[13] Attempts to enact a uniform adoption law applicable to all communities have not yet succeeded.[13] However, the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), provides a secular legal framework for the adoption of orphaned, abandoned, or surrendered children by persons of any religion. The Madras High Court in Thirumathi N. Faritha Begam v. The Joint Registrar[15] observed that the JJ Act, being a special enactment, could have precedence over personal laws, with the needs of the child assuming paramount importance. International instruments like the UN Convention on the Rights of the Child, ratified by India, also emphasize the child's right to a family and the principle of the child's best interests, influencing judicial perspectives on adoption.[14]

Judicial Scrutiny and Evolution of Customary Adoption

The Indian judiciary plays a crucial role in interpreting and applying customary law in adoption cases, balancing traditional practices with statutory mandates and evolving legal principles.

Role of Authoritative Texts and Judicial Notice

Courts often refer to authoritative compilations of customary law, such as Rattigan's Digest for Punjab customs, to ascertain established practices.[6], [12] A custom that has been repeatedly recognized by courts may acquire the status of judicial notice, meaning it need not be proven afresh in every case.[6] However, as noted in Ujagar Singh v. Mst Jeo,[5] customs generally require proof unless they have been so consistently judicially recognized that they can be taken as judicial notice.

Public Policy, Reasonableness, and Morality of Custom

A fundamental tenet is that a custom, to be valid, must not be unreasonable, opposed to public policy, or immoral.[3], [8] Courts meticulously scrutinize customs on these grounds, ensuring that practices that are regressive or conflict with fundamental legal principles are not upheld.

The Child's Best Interest as a Paramount Consideration

There is a discernible trend in Indian jurisprudence towards prioritizing the best interests of the child in all matters concerning them, including adoption. This principle, enshrined in the JJ Act and international conventions, increasingly informs judicial interpretation and application of customary adoption practices.[14], [15] This may lead to a re-evaluation of certain customs if they are found to be detrimental to the child's welfare.

Conclusion

The law of adoption in India reflects a dynamic interplay between custom, personal laws, and statutory enactments. Custom continues to be a recognized source of law, particularly within the framework of the Hindu Adoptions and Maintenance Act, 1956, which explicitly carves out exceptions for certain established practices. For other communities, while the Shariat Act governs Muslims, and the JJ Act provides a secular path, the space for customary practices, though limited and subject to stringent proof, may still exist. The Indian judiciary maintains a cautious approach, demanding rigorous proof for the establishment of any custom and ensuring its conformity with reasonableness, public policy, and morality. As legal systems evolve, the paramount consideration of the child's best interests is increasingly shaping the contours of adoption law, influencing how both statutory provisions and customary practices are interpreted and applied, thereby striving to balance tradition with contemporary legal norms and the welfare of the child.

References