Date: Apr 5, 2007 6:58 AM
Subject: Parsees and adoption - opinion by various Zoroastrians - Mr Dadrawala, Mr Khojeste Mistree, Mr Ranina etc
[cc: Vada Dasturjis, Ervad Sahebs, Bombay Parsee Punchayat (BPP), Zoroastrian Studies, Religious Anjumans, Priestly Madrassas, Traditional Zoroastrian Home page moderators, TMYZ officials, prominent Zarathushtis, etc ]
By Noshir H. Dadrawala
This has reference to Manoj R. Nair's article "Adopted Girl Enters Parsi Fold, Priests Say Not Rite" (Mumbai Mirror – April 4, 2007).
There is no legal adoption among Parsis in India. The tradition of naming a "palak" for undertaking obsequies of a deceased cannot and should not be confused with adoption.
The "Guardians and Wards Act of 1890" does not give the adopted child "legal rights of a biological child," which are specifically spelt out in the "Hindu Adoption and Maintenance Act of 1956." However, the latter is not applicable to Parsis.
Sometime ago Justice Rebello had passed a judgment "in the matter of adoption by Christian couples". This cannot be made applicable to Parsis.
The question arises, is it illegal or irreligious for Parsi couples, especially child-less couples, to adopt children?
The position in law is quite clear. There is no legal adoption among Parsis and therefore if a couple decides to adopt a child, the latter would not enjoy automatic rights of inheritance etc., which a biological child born out of the couple's wedlock would have in the natural course enjoyed. The couple therefore would have to make wills and such testamentary documents to confer various rights of inheritance.
From a religious point of view, if a Parsi Zoroastrian couple, especially a childless couple, desires to adopt a child born of Parsi Zoroastrian parents, there should be no reason for discouragement. The couple may happily fill the void in their life and shower the child with love, affection and good upbringing. Testamentary and other documents may be executed to ensure the child's right of inheritance. The Navjote of such a child should also be performed at the proper time.
However, one would be treading into a rather grey area as far as 'Religious Rights' are concerned, if a child were adopted from a secular adoption center (where the biological parentage of the child can seldom be ascertained). The question would arise as to how such a child can be allowed to enter and worship at a consecrated fire temple (legally as by long custom and usage restricted to Parsi Zoroastrians only) or participate in a religious ceremony.
Merely performing the navjote ceremony of a child whose parentage is unknown cannot make the child a 'Parsi Zoroastrian'.
India being a secular state, on one hand, and having given constitutional rights of freedom of religion to individual citizens, as also to religious denominations on the other, no civil legislation can have such provisions as may disturb such religious freedom.
Who can be a member of a particular religious denomination or who can have a right to insist on being a member thereof and being entitled to the use of its religious institutions is determined by the personal law of that denomination which, again, is based on the precepts, beliefs and tenets of the religion.
Article 25(1) of the Constitution of India provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. This sub-section in terms provides that it is subject to "public order, morality and health and to other provisions of this part". It is therefore subject to Article 26(b), which provides that every religious denomination or any section thereof shall have the right "to manage its own affairs in matters of religion".
Adoption is not recognized by the Parsi Zoroastrian community. This is an established fact and therefore, no judge of the High Court or Supreme Court can sit in judgment on it. To quote Justice Dinshaw Davar (ILR 33 Bom 122), "If this is the belief of the community and it is proved undoubtedly to be the belief of the Zoroastrian community - a secular Judge is bound to accept that belief - it is not for him to sit in judgment of that belief."
Also, there is no "law of the land" which can force a priest to perform the "navjote" of such adopted children whose parentage is unknown.
Navjotes of such 'adopted' children, whose parentage is unknown, may be good for the emotional satisfaction of the adoptive parents. However, it cannot confer any legal or religious rights to the child.
(end, see below for more)