Adoption Under Customary Law in India: A Juridical Analysis

Introduction

Customary law, as a body of rules that has obtained the force of law through long and consistent usage within a particular community or locality, plays a significant role in the diverse legal system of India. Adoption under customary law, distinct from adoptions governed by codified personal laws or secular statutes, reflects the varied socio-cultural practices prevalent across the subcontinent. While the Hindu Adoptions and Maintenance Act, 1956 (hereinafter HAMA) has largely codified the law of adoption for Hindus, it explicitly saves certain customs and usages, particularly under Section 10. For communities not governed by HAMA or specific statutory adoption laws, customary practices often remain the primary mode of establishing adoptive relationships. This article undertakes a juridical analysis of adoption under customary law in India, examining its nature, essentials, proof, judicial recognition, and its interplay with statutory provisions, drawing upon key judicial pronouncements and legal principles.

The Nature and Essentials of Customary Adoption

Defining Custom in Legal Parlance

The legal recognition of a custom hinges on several well-established criteria. The Supreme Court of India, in cases like DURGA GRAM UDYOG SAMITI(REGD.) v. STATE OF PUNJAB (2008) and Salekh Chand (Dead) By Lrs. v. Satya Gupta And Others (2008), has reiterated that for a custom or usage to have the force of law, it must be ancient, continuous, uniform, certain, reasonable, and not opposed to public policy. These judgments emphasize that "All that is necessary to prove is that the custom or usage has 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 in any local area, tribe, community, group or family." Section 3(a) of HAMA defines "custom" and "usage" similarly, signifying "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: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family" (as noted in Bhimashya And Others v. Janabi (Smt) Alias Janawwa (2006)).

Distinction from Statutory and Personal Law Adoptions

Customary adoptions often differ significantly from those under codified laws like HAMA. For instance, HAMA, under Section 11(vi), mandates the actual giving and taking of the child as essential for a valid adoption, a principle underscored in cases like Lakshman Singh Kothari v. Rup Kanwar (Smt) Alias Rup Kanwar Bai (1961 AIR SC 1378) for Shastric Hindu law adoptions. Customary adoptions, however, may have more flexible requirements regarding ceremonies. Many customary adoptions in Punjab, for example, were historically secular, aimed at appointing an heir rather than conferring spiritual benefit, which was the primary object of traditional Hindu law adoption (Hem Singh And Mula Singh v. Harnam Singh And Another (1954 AIR SC 581); Bharpai v. Sudhan Singh And Another (1968)). Furthermore, for communities like Christians and Muslims, where no general statutory law of adoption exists in India (as observed in R.R. George Christopher, In Re (2009) and M.JAYAM v. THE CHIEF CONTROLLING REVENUE (2022)), customary practices, if proven, can validate adoptions.

Ceremonies and Formalities in Customary Adoption

The formalities required for customary adoption vary widely. The emphasis is often on the unequivocal intention to adopt and the subsequent treatment of the adoptee as a child. In Inder Singh v. Gurdial Singh And Another (1961, also 1967 AIR SC 119), concerning Jats of Ludhiana district, the Supreme Court held that a declaration of adoption and general treatment of the appointed heir as a son were essential, and a mere declaration or deed unaccompanied by subsequent treatment was insufficient. In some Christian communities, a customary adoption might involve a declaration before a Bishop and the issuance of a certificate (R.R. George Christopher, In Re (2009)). The execution of a deed of adoption, coupled with public declarations and treatment as an adopted son, was considered sufficient manifestation of intention in Hem Singh And Mula Singh v. Harnam Singh And Another (1954 AIR SC 581). The mental competency of the adopter at the time of executing any such deed is, naturally, crucial for its validity (Madan Lal v. Mst Gopi And Another (1980 SCC 4 255)).

Proof and Judicial Recognition of Customary Adoption

Burden and Standard of Proof

The onus of proving a custom lies heavily on the party alleging its existence (Bharpai v. Sudhan Singh And Another (1968)). The proof must demonstrate that the custom meets the criteria of antiquity, continuity, certainty, and reasonableness. However, courts have shown flexibility, especially in cases of ancient adoptions where direct evidence of ceremonies may be scarce. In L. Debi Prasad (Dead) By L.Rs v. Smt Tribeni Devi And Others (1970 SCC 1 677), the Supreme Court upheld an adoption based on long-standing recognition and continuous treatment as an adopted son for over five decades, creating a strong presumption of valid adoption even in the absence of direct evidence of the ceremony.

Evidentiary Value of Riwaj-i-am and Other Records

In regions like Punjab, `Riwaj-i-am` (records of customs) have historically been significant evidence. However, their evidentiary value is not absolute and can be rebutted. In Gurdit Singh v. Angrez Kaur And Others (1968 AIR SC 142), the Supreme Court recognized a customary divorce despite finding the local `Riwaj-i-am` unreliable, based on other corroborative evidence, including oral testimonies and practices in neighboring districts. The interpretation of `Riwaj-i-am` entries themselves can be contentious, as seen in Ganga Singh And Another v. Basant And Others (1960 SCC ONLINE P&H 40) concerning the eligibility criteria for adoption in Hoshiarpur District. Sometimes, `Riwaj-i-am` entries were not considered sufficient if the concerned communities did not accept them at the time of compilation (Salig Ram v. Munshi Ram And Others (1954)). Documentary evidence, such as adoption deeds, school admission forms, and income tax records, coupled with consistent oral testimony, can be pivotal in establishing customary adoption (L. Debi Prasad (Dead) By L.Rs v. Smt Tribeni Devi And Others (1970)).

Judicial Approach to Varying Customs

Indian courts have adjudicated upon a multitude of specific customs relating to adoption. Punjab customary law, extensively documented and litigated, provides numerous examples regarding who can be adopted (e.g., collaterals, persons of the same `gotra`), the necessary formalities, and the consequences of such adoptions (Inder Singh v. Gurdial Singh And Another (1961); Ganga Singh And Another v. Basant And Others (1960); Hem Singh And Mula Singh v. Harnam Singh And Another (1954); MOHAR RAM v. BHIM SINGH (2017)). Courts have also recognized customs permitting the adoption of individuals older than the age limits generally prescribed under Shastric law or HAMA (unless custom is saved), as discussed in Anirudh Jagdeorao v. Babarao Irbaji And Others (1983) concerning the Pillay community in Maharashtra, where the Bombay School of Hindu Law historically did not recognize a strict age limit.

Key Legal Principles from Case Law

Primacy of Intention and Treatment

A recurring theme in judicial decisions on customary adoption is the paramount importance of the adopter's unequivocal intention and the subsequent consistent treatment of the adoptee as their child. As established in L. Debi Prasad (1970), long and continuous treatment can create a formidable presumption in favor of adoption. The cases of Inder Singh v. Gurdial Singh (1961, 1967) and Hem Singh (1954) further reinforce that a clear expression of intent coupled with corresponding conduct often forms the bedrock of a valid customary adoption, sometimes outweighing the absence of specific ceremonial rigor.

Flexibility in Formalities v. Essential Requirements

While Shastric Hindu law, and subsequently HAMA, prescribe certain essential ceremonies like "giving and taking" (Lakshman Singh Kothari (1961)), customary law often exhibits greater flexibility. Rules relating to ceremonies and preferences in selection under customary law are frequently treated as directory rather than mandatory, especially when the primary object is secular, such as appointing an heir (Hem Singh (1954); Bharpai (1968)). However, this flexibility does not imply a complete absence of requirements; the core elements of the specific custom alleged must still be proven and adhered to.

Custom as a Source of Law

The judiciary has consistently recognized custom as a legitimate source of law, capable of validating practices not otherwise sanctioned by general personal laws. In Yamanaji H. Jadhav v. Nirmala (2002 SCC 2 637), the Supreme Court, while dealing with customary divorce, affirmed that custom could provide for dissolution of marriage outside statutory frameworks, a principle applicable by analogy to adoption. Similarly, Gurdit Singh (1968) upheld a customary divorce, and R.R. George Christopher, In Re (2009) acknowledged customary adoption among certain Christian communities as having legal force.

Interaction with Statutory Law (HAMA 1956)

The enactment of HAMA in 1956 significantly impacted customary adoption practices among Hindus. Section 4 of HAMA gives the Act overriding effect over any text, rule, or interpretation of Hindu law, or any custom or usage as part of that law, unless otherwise expressly provided in the Act (Bhimashya And Others v. Janabi (Smt) Alias Janawwa (2006)). However, HAMA itself saves customs in certain areas. For example, Section 10(iv) allows the adoption of a person who has completed the age of fifteen years or is married if custom applicable to the parties permits. In M. Gurudas And Others v. Rasaranjan And Others (2006 SCC 8 367), an alleged adoption of a daughter was found invalid under Hindu law where a contrary custom permitting it was not established. Conversely, in S.T Krishnappa v. Shivakumar And Others (2007 SCC 10 761), the court noted that if a customary adoption was in vogue and attached to it all consequences of a full and formal adoption under Hindu law, it would be recognized. The presumption under Section 16 of HAMA regarding registered adoption deeds also plays a role, though it is a rebuttable presumption.

Rights and Consequences of Customary Adoption

Inheritance Rights

A valid customary adoption generally confers upon the adoptee the status and rights of a natural-born child within the adoptive family, particularly concerning inheritance. However, a notable distinction often arises regarding rights in the natural family. Under Punjab customary law, for instance, an adopted son did not necessarily sever all ties with his natural family and could retain rights of collateral succession therein, unlike an adoption under classical Hindu law or HAMA, which typically results in a complete transfer from the natural family to the adoptive family (Sohan Singh, Etc., v. Gurtej Singh, Etc. (1971 SCC ONLINE P&H 211)). The adopted son of a father is also considered the adopted son of the adoptive mother under such customs.

Challenges to Customary Adoption

Customary adoptions can be challenged on various grounds, including the non-existence or invalidity of the alleged custom, failure to comply with the essential requirements of that custom, or lack of capacity of the adopter (e.g., due to unsoundness of mind, as in Madan Lal v. Mst Gopi And Another (1980), which dealt with the validity of an adoption deed). The locus standi of collaterals to challenge an adoption, particularly concerning ancestral property, has also been a subject of litigation, with the customary appointment of an heir sometimes being likened to a gift (Lachhmi Narain v. Ghisa And Another (1959)).

Contemporary Relevance and Future Directions

Despite increasing codification and urbanization, customary adoption remains relevant for many communities in India, particularly those whose personal laws are not fully codified or who adhere strongly to traditional practices. The primary challenge continues to be the rigorous proof required to establish a custom, demanding clarity and certainty. The evolving jurisprudence on child rights, influenced by international conventions like the UN Convention on the Rights of the Child (as noted in Manuel Theodore D'Souza (1999)) and domestic legislation such as the Juvenile Justice (Care and Protection of Children) Act (referenced in M.JAYAM v. THE CHIEF CONTROLLING REVENUE (2022)), also informs the broader context of adoption. While these do not directly alter established customary law, the "best interests of the child" principle is an increasingly pervasive consideration in all family law matters, including adoption. The question of further codification or reform of customary adoption laws remains complex, requiring a delicate balance between preserving cultural diversity and ensuring legal certainty and protection for all parties involved.

Conclusion

Adoption under customary law is an integral component of India's pluralistic legal fabric, reflecting a rich tapestry of socio-cultural traditions. Characterized by its local variations, emphasis on intention and treatment over rigid formalities, and its secular nature in many instances, customary adoption has been consistently recognized by the Indian judiciary when proven according to established legal standards. While challenges in proving ancient and unwritten customs persist, judicial pronouncements have often adopted a pragmatic approach, especially where long-standing family relationships are evident. The interaction between customary law and statutory enactments like HAMA continues to evolve, underscoring the dynamic interplay between tradition and modernity in Indian family law. Ultimately, the continued recognition and sensitive adjudication of customary adoption practices are crucial for upholding legal pluralism and ensuring justice within diverse communities across India.