Date: Apr 24, 2007 3:42 PM
Subject: Parsis an Adoption - A Legal Analysis by Mr Noshir H Dadrawalla
Dear fellow Zarathushtis,
To: TZML - Traditional Zarathushtrian Mailing List ]
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
Just yesterday we sent you the report from Mrs. Pervin Mistry
explaining how wrong adoption was for Parsis - both from the religious
and legal point of view.
On the heels of that letter, we have received a report from Mr Noshir
Dadrawalla, where he has explained the legal matters connected with
it.
You may also study the expert opinion of Noshirbhai, who has been
writing on community affairs for more than 20 years!
Mrs Pervin Mistry says: "This rebuttal is written by Noshir Dadrawala.
It needs to be circulated widely so Parsis everywhere know the truth
regarding the adoption issue as well as what level of ignorance these
ARZ folks possess! They only end up displaying their foolishness every
time they pen something!
This is a very good response to ARZ's Vispy Wadia who thinks he can
promote wrong, anti religious practices without being held
accountable! It is a fact that the Wadia brothers have displayed total
ignorance about religious, legal, historical and social matters every
time they have tried to show off their "power" to alter our divinely
revealed scriptures, rituals and time-honoured traditions.
Please read the response given by Noshir and do circulate this so the
gullible do not get carried away. Thanks.
So here it is dear friends the authoritative opinion of Mr Dadrawalla
on this subject.
Sincerely
TZML Admins (please see below)
Parsis And Adoption - A Legal Analysis
By Noshir H. Dadrawala
This has reference to Mr. Vispy N. Wadia's article,
"Adoption………………..Nothing Illegal About It" (JJW April 22, 2007).
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.
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 to 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. In India, 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.
Incidentally, even Islam does not recognize adoption. In Mohammed
Allahdad Khan v. Mohammad Ismail it was held that there is nothing in
the Mohammedan Law similar to adoption as recognized in the Hindu
System. Parsi Zoroastrians also hold the same view.
With reference to the recent case of the 'Navjote' of the 'adopted'
girl child by the Bangalore-based Parsi couple, Noshir and Phiroza
Rustomji the legal position is quite clear:
mere performance of 'Navjote' ceremony on a child whose parentage is
unknown cannot make him/her a 'Parsi Zoroastrian';
even assuming that with performance of the 'Navjote', the child has
been initiated as a 'Zoroastrian', it still does not make him/her a
'Parsi Zoroastrian' and, as such, the child cannot enjoy as of legal
right the benefits of religious institutions which have been lawfully
established under Deeds of Settlement and Trust for the benefit of
'Parsi Zoroastrians Only'.
(end of Noshir Dadrawalla's article)
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