Adoption is not legal among Parsis in India. If a Parsi individual desires to adopt a child, the latter would not legally be considered ‘as if born to’ the adoptive individual or couple. Though the 2006 amendment of the Juvenile Justice Act 2000, now defines ‘Adoption’ under section 2(aa) to mean, “the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship,” in view of the fact that adoption is not legal among Parsis in India, Parsi parents adopting children are advised to execute testamentary and other documents to ensure the child’s right of inheritance.

Failed Attempts

Since decades, efforts by the Indian government to pass a comprehensive secular law on adoption has failed. This is mainly on account of stiff opposition from non-Hindu communities, particularly Muslims and Parsis. The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption applicable to all communities other than the Muslim community, was opposed by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the Bill. The National Adoption Bill, tabled twice in Parliament (in the 70s), has yet to enter the statute books.

Article 44 of the Constitution declares: “The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.” However, attempts to bring in the concept of secular adoption into the Indian system of laws is a saga of inaction and action, without conviction on the part of the legislature.

Concept of Paalak

The custom of naming a paalak for undertaking obsequies of a deceased must not be confused with adoption. The First Dastur Meherji was born in a priestly family at Navsari, in 1514 A.D. His father’s name was Rana Jesung (thus the name Meherji-Rana). Dastur Meherji was adopted by his paternal Uncle Vaccha Jesung as a paalak. This is why in our ceremonies, his name is invoked as ‘Dastur Meherji, Ervad Vaccha.’

Naval Tata

Well known industrialist and philanthropist, Ratan Tata who recently passed away, was the son of Naval Hormusji Tata. Naval was only four years old when he lost his father, who was a Spinning Master in the Ahmedabad Advanced Mills. This tragic blow was debilitating for the family, particularly for his mother. Naval was sent to J.N. Petit Parsi Orphanage, where he received his early education. During a visit to the orphanage, Lady Navajbai Tata, wife of Sir Ratanji Tata, saw the young Naval. She decided to adopt him as her son (become his guardian) and transformed his destiny. Naval was only 13 years old at the time.

Incidentally, Jamsetji N Tata had married Hirabai, whose sister, Cooverbai, was Naval’s grandmother. Jamsetji’s two sons, Sir Dorabji and Sir Ratanji, had no heir. Lady Navajbai (wife of Sir Ratanji Tata) adopted Naval while he was still at the orphanage. Although adopted by Lady Navajbai and Sir Ratanji Tata, Naval did not become Naval Ratanji Tata. He remained Naval Hormusji Tata. Essentially Lady Navajbai and Sir Ratanji Tata became Naval’s guardians under ‘The Guardian and Wards Act, 1890’ (GWA).

The Guardian and Ward Act (GWA) 1890

The personal law of Muslims, Christians, Parsis and Jews does not recognize complete adoption.  In India, as non-Hindus do not have an enabling law to adopt a child legally, those desirous of adopting a child can only take the child in ‘guardianship’ under the provisions of ‘The Guardian and Wards Act, 1890’ (GWA).

GWA, however, does not provide the child the same status as a child born biologically to the family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956 the child cannot become their own or inherit their property by right. The GWA confers only a guardian-ward relationship.  This legal guardian-ward relationship exists until the child completes 21 years of age.

Under the GWA, persons belonging to communities such as Muslim, Christian, Parsi or Jew and who wish to adopt can only take up ‘guardianship’ of the child. Under Indian laws, such children do not enjoy the same status as those of a biological child. In fact, under GWA the term ‘Guardian’ means minor for whose person or property or both, there is a guardian. The term ‘Ward’ means a minor for whose person or property or both, there is a guardian. In other words, if a Parsi parent desires to ‘adopt’ a child, the latter would not legally be considered ‘as if born to’ the adoptive individual or couple.

Religious Rights?

Would the ‘adopted’ child be considered a Parsi Zoroastrian after the Navjote ceremony is performed at the appropriate time? Strictly speaking, mere performance of the Navjote ceremony of a child whose parentage is unknown, cannot make him/her ‘Parsi Zoroastrian’. From a liberal perspective, the child would at best be considered Zoroastrian by religion, but not Parsi by race, as was the stand taken by Justice Davar & Justice Beamon, over a century ago, in the historic Parsi Punchayet case. Considering the fact that the right of admission in almost all Agyari and all Atash Behram in India is restricted to ‘Parsi Zoroastrians’, such adopted children, even after having the Navjote ceremony performed, could technically be restrained from entry.

The Hindu Adoption and Maintenance Act 1956

The only codified law available for adoption in India is The Hindu Adoption and Maintenance Act (HAMA). This Act came into force in 1956 and is applicable to:

• any person who is a Hindu by religion in any of its forms or development;
• any person who is a Buddhist, Jain or Sikh;
• any person who is not a Muslim, Christian, Parsi or Jew;
• any child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains or Sikhs;
• any child legitimate or illegitimate one of whose parents are Hindus, Buddhists, Jains or Sikhs and has been so brought up;
• any abandoned child, legitimate or illegitimate of unknown parentage brought up as a Hindu, Buddhist, etc.;
• any person who is a convert to the Hindu, Buddhist, Jain or Sikh religion.

It is clear from the above that HAMA is NOT Applicable to Parsis.

Juvenile Justice Act (JJA)

The Juvenile Justice Act 2000 (and its subsequent amendment of 2006) has neatly tucked in a provision for adoption, but with no reflection on how it is to be implemented or its repercussions. The intentions of this Act are good, but they do not even mention adoption in the statement of object! Thus, the JJA is not precise and clear in its terms and is, in conflict with other pieces of legislation.

One needs to note that nowhere does the Juvenile Justice Act 2000 (or the amendment of 2006) say that it supersedes existing legislation on adoptions. JJA fails to override the provisions of other personal laws. For example, the Muslim personal law does not permit adoption and the government cannot try and plug loopholes in one Act by amending another.

Merely because the JJA has included adoption within its ambit, this is still not an all-in-all adoption law, but brings in adoption as one of the means by which abandoned, neglected, abused and destitute children could be rehabilitated. The Act recognizes adoption as an important process in the rehabilitation and social re-integration of children who are abandoned, orphaned, neglected, or abused in their families or in institutions.

Given its special status within the broader framework of child welfare programme, adoption demands a class of legislation that must either supersede or made compatible with the existing legislation. The existence of a prior law relating to adoption for Hindu and the non-existence of adoption laws for non-Hindu communities as also, prohibition of adoption in the religious laws of some communities (e.g. Muslims) makes the JJA rather ineffective.

It is a well-settled principle of Jurisprudence that when there is a ‘general law’ and a ‘specific law’ on the same aspect of law, the latter has precedence over the former. Consequently, the Juvenile Justice Act is rendered ineffective by the very presence of Hindu Adoptions and Maintenance Act, 1956, in case of Hindus. Regarding the conflict between the Act and the existing legislation, naturally, the multiplicity of laws, each with their own set of operational rules, causes chaos in the field.

Though adoption by itself is a fundamental right of an orphaned, abandoned, or destitute child, the legal consequence of being given in adoption entails application of Family Law or what is termed as Personal law. In the final analysis, it can be said that though the JJA was framed with bonafide intent, yet it has paved way to several doubts and difficulties in its practical implementation.