Inheritance rights of adopted children vary on the basis of religion

Hindu and Christian personal law treat adopted child on a par with natural-born ones

The High Court of Karnataka has ruled that adopted children have the same rights as biological children and can’t be discriminated against when they apply for their deceased parent’s job on compassionate grounds. The court, in the case of Girish, s/o Vinayan K Muttatti Vs State of Karnataka & others, said that the state government must give a compassionate appointment to the adopted son.

Against the backdrop of this case, let us try to understand the legal and inheritance rights of children under various circumstances.

Rights of adopted children

The rights of adopted children vary in different religions. Samir Malik, partner, DSK Legal says, “In some religions, adoption is considered acceptable while others don’t approve of adopting a person and giving legitimacy and rights they were not born with.”

Under Hindu law, an adopted son or daughter is treated exactly the same as a natural-born child. Malik says, “The children who are Hindu and have been adopted legally by people who are either Hindu, Buddhist, Jain or Sikh, or who are not Muslim, Christian, Parsi or Jew, will be governed by the Hindu Succession Act, 1956 which doesn’t consider adopted children on a separate legal footing from natural-born children, making them eligible to a claim over the legal estate.”

Under Christian and Muslim law

There is no prohibition against adoption under Christian law. Malik says, “The Supreme Court of India has acknowledged the tenets of Christian personal law on adoption, which permit adoption even if the parents have natural-born children.” An adopted child would enjoy similar inheritance and succession rights as the natural-born heir. 

Muslim personal law doesn’t regard an adopted child on a par with a biological one. Hence, an adopted child can’t enjoy inheritance or succession rights. A person to whom the Muslim personal law applies can, however, use enabling statute like the Juvenile Justice Act to adopt.

Claim over biological parents’ property

Under Hindu and Christian personal law, no distinction has been made between an adopted and a natural-born child. Therefore, the adopted child doesn’t have any claim to his/her biological parents’ property.

Malik says, “Since adoption is not acceptable under Muslim personal law, the child will naturally have a claim over the property of his biological parents.”

Children of divorced parents

Children of parents who are divorced retain a legal right to their property. Aditya Chopra, managing partner, Victoriam Legalis-Advocates & Solicitors says, “The normal succession laws depending on one’s religion apply in such cases.”  

Children from live-in relationships

A live-in relationship has no legal status or acceptance under the personal laws of any religion. However, in 2015, the Supreme Court held that an unmarried couple living together for a long time can be considered as married. Bharath Gangadharan, senior associate, SKV Law Offices, says, “The offspring of such a couple will have the right to the father’s self-acquired property under Section 16 of the Hindu Marriage Act, 1955.”

However, to be recognised as husband and wife, the parents must cohabit for a significant period of time.

Kirti Dua, partner, ANG Partners Advocates & Solicitors says, “The Supreme Court, in its latest judgment of June 2022, held that children born out of a live-in relationship even have coparcenary right in ancestral property.”

Illegitimate children

The earlier understanding was that an illegitimate child would have the right to his father’s self-acquired property only, and not to ancestral property. Nikhil Varma, managing partner, Miglani Varma & Co–Advocates, Solicitors and Consultants says, “The Supreme Court in a 2011 judgment, however, held that children born out of wedlock have the right to stake a claim to their father’s self-acquired property as well as ancestral property, making the law on the subject slightly uncertain at the moment.”

Soayib Qureshi, associate partner, PSL Advocates & Solicitors says, “The children have no control over their parents’ relationship status. They are entitled to all the rights and privileges available to children born from valid marriages.”

Section 125 of the Criminal Procedure Code deals with the maintenance rights of wives, children (legitimate and illegitimate), and parents. Qureshi says. “Through such provisions, illegitimate children can get a legal remedy regarding maintenance, regardless of their parents’ religion.”

Circumstances in which adopted son doesn’t enjoy rights

I. When there are two sons  

• No adoption can be validly made while a legitimate son exists

• The son affiliated under such circumstances will have no right over the estate of the adopter

• In such a circumstance, each of them will at 21 succeed his own natural father

II. When no mode of adoption is followed

• If a son is adopted without observing the proper rules, the adoption is invalid, and the son can’t receive his adopter’s wealth

III. Adopted son of disqualified heir 

• Suppose that an heir is disqualified, say, on the basis of mental problem

• His adopted son will have no right to succeed to the estate and will only receive maintenance