Bombay High Court

Bal Anand vs Shaun Farrugia, Maltese National ... on 16 June, 2022

Bench: B.P. Colabawalla

1. fap 9-22..doc

Digitally

Bombay High Court

Bal Anand vs Shaun Farrugia, Maltese National ... on 16 June, 2022

Bench: B.P. Colabawalla

1. fap 9-22..doc

Digitally

More than ever, India is witnessing an increase in divorce cases, multiple marriages, live-in relationships, having stepchildren, children from previous marriage, adopted children, children born out of wedlock. In this article we explain to you the inheritance rights of the partner and the child in context of the succession laws and the court judgements for Hindus in India.

Rights of children from divorced parents:

If you have children from your divorced spouse, then such children (your biological children) would be your legal heirs as specified under the Class I legal heirs of the Hindu Succession Act, 1956. Even if you do not have the custody of your child and do not have any ties with your children, they would still be entitled to inherit your properties unless you prepare a succession plan and mention otherwise. The children from divorced spouse will have an equal right over the properties in addition to the other legal heirs even though you may have settled off the matter with your divorced partner in terms of alimony and maintenance. Your biological children will have a right to inherit from your assets and if you wish to distribute your assets in a different manner due to remarriage, change in relations, then you need to prepare a succession plan accordingly.

Rights of stepchildren:

The Hindu Succession Act, 1956 does not recognize stepchildren (children of your spouse from his/her previous marriage), as natural legal heirs unless you lawfully adopt them. In order to bequeath a share of your property to them, you need to include them under your succession plan. Your step son or step daughter will not have any right in your property because under the Hindu Succession Act 1956, a step son or step daughter does not fall within the purview of a “son” or “daughter” and therefore, has no legal right to your property, unless you specifically bequeath a share to him or her under your Will.

There was a poignant report about adoption in the Volkskrant . 'It is around the age of 18 that Zenebe, who comes from Ethiopia, says out loud for the first time that it might have been better if he hadn't been adopted. Zenebe: 'Then I might live in poverty, but I would live with my family and without this hassle in my head all the time.'

Being able to grow up in the family where you were born is a foundation in human life. I am surprised that in the discussion on custodial placements we are no longer learning from the insights of the adoption debate. In general, adopted children are placed in fairly close-knit families. But even then, adoptees often struggle with attachment problems, trauma and grief for life.

Poverty

Poverty plays a fundamental role in adoption and also in youth care and it leads to children being separated from their parents.

Poverty alone is not a ground for the removal of a child, ministers emphasized time and again after parliamentary questions about the children of benefit victims who have been removed from their homes. 'But the practice turns out to be complicated', commented Mariëlle Bruning, professor of juvenile law. 'The government has a duty to provide money and housing, but in the Netherlands you see that this is often not fulfilled. Due to financial problems, stress can become so high that you as a parent can no longer function well enough.'

The Weekend Australian recently featured on its front page a story about the journey Canberra couple Emma and Alex Micallef have undergone to commission a baby in Ukraine. It detailed the obstacles they have experienced along the way, including the logistics of managing such an arrangement in the midst of the country’s ongoing invasion at the hands of Russia (“Miracle of life delivered in a war-torn land far away”).

However, what is interesting to note about the story (and not mentioned in the newspaper article) is that entering into an overseas commercial surrogacy arrangement is illegal in the Australian Capital Territory, the jurisdiction where the couple currently reside. According to the Australian government’s smart traveller website:

“It is illegal for residents of the ACT, NSW and QLD to enter into commercial surrogacy arrangements overseas. Doing so could lead to arrest and jail in Australia.”

The process as described in the news article indicates that the Micallefs, with the assistance of non-profit organisation Growing Families, have entered into a commercial surrogacy arrangement overseas:

“The commercialisation of the process – very different from the altruistic approach in Australia – meant the baby would be legally the Micallefs’ from birth and they would not have to go through bureaucratic processes to adopt their daughter. There is no court decree, no adoption procedure, and the gestational mother, who is paid about €15,000 to €20,000 ($22,200 to $29,640), which is many times the Ukrainian minimum wage, has no legal right.”

The Czech capital Prague is becoming increasingly popular for commercial surrogacy. Officially it is forbidden, but in practice a lot is possible. Gay couples and single men can also pick up a child here.

Czech authorities concluded a three-year investigation into human trafficking in early June. They investigated cases in which Ukrainian women in the Czech Republic gave birth to a child destined for presumably single non-Czech people.

The investigation centered on a private clinic in Kharkiv, Ukraine, that offers people the opportunity to 'order' a child. Research by the Czech news site Seznam Zpravy shows that interested parties from all over the world can choose skin color, gender and hair color via a catalog. The clinic then selects a suitable egg donor, after which a surrogate mother is fertilized.

Single men or gay couples cannot pick up their children in Ukraine; only a heterosexual couple can engage a surrogate mother. That is why there is Prague for other target groups. The surrogate mother gives birth in the Czech capital and then gives the client custody of the child. The man can then simply leave the Czech Republic with the child, without it being known whether he is capable of raising the child and what the motives behind his wish to have children are…

Thing

NEW DELHI: In an important judgment relating to partition of property among Hindus, the Supreme Court on Monday ruled that an illegitimate child of a couple cohabiting for long without marriage would be entitled to a share in the family property.

Reversing a Kerala HC judgment that disallowed property share claim of an alleged illegitimate son of a couple who did not marry, a bench of Justices S ABdul Nazeer and Vikram Nath said the couple in question had cohabited for a very long time to make their relationship as good as a married couple and hence, their son would be entitled to appropriate share in the ancestral property.

Settling a 40 year-old dispute that oscillated between the trial court, High Court and the SC, the bench said, "We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long cohabitation." The SC restored the trial court judgment which had decreed the suit in favour of partitioning the ancestral property with appropriate share to the son of the couple.

The SC said the documents produced by the so-called illegitimate son were much prior to the controversy arising between parties. The other side, children of the brother of the so-called illegitimate son's father.

The bench said, "These documents, coupled with the evidence of a witness, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife. The first plaintiff joined military service in 1963 and retired in 1979. Thereafter he has taken the steps to file a suit for partition of the suit schedule property."

This is a summary of the research report Health and social living conditions of internationally adopted adults , a report from CHESS and Karolinska Institutet in collaboration with the Department of Social Work at Stockholm University on behalf of the Swedish Agency for Family Law and Parental Support (MFoF). The report in its entirety can be downloaded hereLink to another website.. Behind the report are Anders Hjern, Department of Medicine Solna, Karolinska Institutet and CHESS, Stockholm University / Karolinska Institutet, and Bo Vinnerljung, Department of Social Work, Stockholm University.

There are about 60,000 internationally adopted in Sweden today. 20 years ago, register studies from the National Board of Health and Welfare showed that the internationally adopted had a significantly increased risk of psychiatric care and suicide during adolescence and young adulthood. This new report examined whether the high psychiatric morbidity of internationally adopted patients persists into adulthood. The report also focuses on social living conditions in adulthood in the form of family formation, childbirth and work, where the follow-up time in previous studies has been too short to allow any definite conclusions.

Study population and data

The study was based on anonymised data from national registers provided by Statistics Sweden and the National Board of Health and Welfare. The study population consisted of internationally adopted and refugees originating in Asia, Latin America and Africa who arrived in Sweden before the age of eight and native Swedes with a Swedish background. The analyzes of psychiatric morbidity were based on longitudinal data on 1.6 million individuals born 1973-1986 who were followed from the age of 18 until 2017 (31-45 years), of which just over 18,000 were internationally adopted and 22,000 refugees. The analyzes of social living conditions were based on people born in 1972-1983, and this also included a group of more than 900 Swedish adoptees, adoptees who were born in Sweden and had been adopted in early childhood.

Doubled risk for inpatient psychiatric care

Rob Marrevee (60), adoptive father of sons Zenebe (25) and Jarra (22), in his book Vaderland puts an end to the 'fairytale' that a child from a poor country can be 'saved' with enough love. His sons support him. "My mission is to break something open."

"And where are you originally from?"

"From Ethiopia."

'Oh, you speak Dutch very well.'

'Yes, that's right, I grew up here. I've been adopted.'

Giving has been an integral part of India’s culture. Many of us experience it quite early on when we celebrate our birthdays or other special occasions at orphanages or child care institutions (CCIs). While giving to orphanages has been the traditional and one of the oldest ways of engaging in philanthropy, we need to shift our focus towards supporting systems and approaches that address the root causes of child vulnerability,spearhead a movement to shift care reform priorities to prevent separation from family and subsequent institutionalization of children, and invest in research and innovative interventions that build upon the existing efforts by the government and civil society.

According to the Indian National Policy for Children 2013, “All children have the right to grow in a family environment, in an atmosphere of happiness, love, and understanding.” There is a global and national consensus that children can achieve holistic development and mental well-being only in a family and related setup. Research on the institutionalization of children claims that 80% of institutionalized children are below the mean on relevant indicators relating to the delayed brain and cognitive development, 57% of institutionalized children exhibit greater psychological issues, as opposed to only 15% otherwise and staff members often resort to dangerous measures that put the child at a higher risk of future criminal activity according to Lumos Global Research.

A ray of hope

To act on the root causes of child vulnerability in India, there is a need for programs that work as a collective, with on-ground interventions covering rural as well as urban locations, coupled with interventions that strengthen the ecosystem with data, evidence, narrative change, and advocacy. State-based models focused on systems strengthening, that lead to replicable solutions need to involve allied sectors, keeping the child at the center, and leverage resources and structures available or mandated by policy. The philanthropic community can have a multi-fold impact by supporting such collective initiatives, and championing the cause to wider networks.

The work is complex and we have a long way to go in overcoming execution challenges. We need to disproportionately focus on enabling families and communities to provide nurturing environments for their children and building the capacities of child protection actors to undertake all efforts necessary to provide family-based care for children entering the system based on the five priorities for action: