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Option to Adopt a Child

Has the legal position changed after the Judgment?

M R Shamshad

The recent judgment of the Supreme Court about the right of a Muslim to adopt a child has been reported with different viewpoints.  However, the core issue is whether a Muslim could adopt a child in the present legal position and at the same time not go beyond the restrictions imposed by the Muslim Personal Law. The grievance of Shabnam Hashmi was that, being a Muslim, she was told that she could not adopt a child.   

Before one goes to state what is the effect of the judgment on personal law, it should be pointed out that the petition was filed in the year 2005 and thereafter there have been various amendments in the existing general laws and guidelines in relation to adoption of a child and the Supreme Court has decided the matter on general laws without affecting the personal law governing the field, but it cannot be said that the judgment has no implication on it.

Earlier, in 1984, the Supreme Court had converted a letter of a practicing lawyer into Writ Petition wherein the stand of a Muslim being opposed to this definition of “adoption” was recorded and further stated that owing to strong opposition of Muslims against a uniform law of adoption, the proposed legislation of 1972 had to be dropped. However, it had laid down various general guidelines regarding adoption. In addition to the 1956 legislation for adoption by Hindus, like 1972 proposal, in the year 2006 a general non-religious legislation defined “adoption” and its consequences and that paved the way for framing consequential guidelines in the year 2007.

The 2006 definition of adoption states that the adopted child gets permanently separated from his biological parents with all rights, privileges and responsibilities attached thereto and the child becomes “legitimate child of his adoptive parents”. The consequences are obvious. This puts the adoptive parents under obligation to call the child as their child like any other biological child of that parent and the child shall have the other civil rights, including right to inheritance of property, flowing from the personal law of the adoptive parent. The objective behind such guidelines is to rehabilitate the children who are orphan, abandoned or surrendered. The mechanism put in place are to ensure that the adopted child is not subjected to vulnerable situation and provides complete dignity with reasonably secure future to them.

In this background, the concern of a practicing Muslim has to be seen. The legal system in India recognises Muslims’ personal law, including intestate succession, guardianship etc to be governed through their personal law (Shariat).  The Shariat law in relation to adoption is stated in the Holy Quran (33:4) as follows: “neither He (God) has made your adopted sons as your own sons” and “call them after their own fathers; that is closer to justice in the sight of God”.  It is further stated that if his father is not known, then treat the adopted person as “brother”.  This injunction of the Holy Quran came after a freed slave Zaid was being called Zaid ibn [son of] Mohammad, after the Prophet Mohammad who had adopted him.  The Qur’anic injunction corrected this practice and again Zaid became Zaid ibn Haritha (4782, Al Bukhari).  

The Quran has justification on this issue as the concept of making the adoptive father and mother as the substitute to biological parents does not fit with the scheme of creation of the human beings as the human beings have got one heart and one brain which cannot be compelled to think non-biological child to be the biological one.  The same principle shall apply to the child who cannot forget their biological parents in the same manner.  It’s a divine law and the same cannot be impeached by logic and changing human perceptions. This does not mean that the orphans and abandoned children have not to be fully protected under the same divine law. There are strict Quranic injunctions to remain good to orphans, to spend on them, to be kind to them and bestow all love and affection to them.  Hence, an obligation has been created on persons who could afford to be providers under the principle of “kafaala”, a voluntary undertaking to provide full care to a child’s welfare and his education with material and emotional support.  

But the question is whether “kafaala” is under exception to the general and wide definition of adoption in the Act of 2000? The answer is: no. The judgment states that the general law is an optional provision and if a person so desires to adopt a child, he may do so. This means that if you opt to adopt a child, there is a mandatorily applicable general law and the said law is conceptually different from the “kafaala”. The result is that if a follower of personal law wants to adopt a child, as per kafaala, there is no scope except entering into the domain of general law by impliedly surrendering the personal law. The option of choosing “kafaala” is missing here and the only option is ‘adoption’, an expanded and conceptually different version of ‘kafaala’.

Comparing this position with the special marriages would be improper as there is no concept of limited definition of marriage in personal law, hence a person choosing to opt that way would not need any protection or exception of personal law as he/she has chosen to surrender the personal law.   

Even prior to Shabnam Hashmi judgement, since 2006, the position was not different. Earlier also, one had option to adopt or choose not to do so. The reports about a change in the legal position after the judgment are far from reality. In fact, the change came when the adoption was defined in general law by way of amendment on 22 August, 2006, in effect bringing part of the 1972 proposed legislation.

The situation would have certainly become different, in case the Supreme Court was of the view that where the parties were Muslims they had option to adopt a child under general law but the said adoption shall be limited to the definition of ‘kafaala’ of their personal law.

The author is Advocate-on-Record, Supreme Court of India

This article appeared in The Milli Gazette print issue of 16-31 March 2014 on page no. 7

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