ABSTRACT
Adoption is a sense of act where a child is taken in and promised to be loved by the adopted parents. Adoption is complicated phenomenon followed by people right from the ancient times. Adoption rights varies according to the religious belief of a person. In this paper we will explain about adoption under Islam and its application under Muslim Law. Indian Muslim Law doesn’t permit adoption and only guardianship is allowed. In their culture it is considered to be a sin. This paper studies the restrictions and demands of adoption under Muslim law.
INTRODUCTION
Muslim in India have no general law for adoption. It is permitted for Hindus on the basis of their customs and usage. Adoption is considered to be a significant aspect of personal law in India. Muslims don’t possess adoption laws, but India being a country promoting equality, the Muslims can approach the court under the Guardians and Wards Act, 1890. The Islamic Jurisprudence do not provide for adoption. The dominant drawback of the Guardians and Wards Act, 1890 is that, Muslim people may adopt a child under foster care only but as soon as the child completed his or her foster age, adoption wont exists anymore. For Hindus, the adoption is under the Hindu Adoption and Maintenance Act, 1956. In section 2 of the said act specifically provides that Hindus can’t adopt Muslim, Christian, Parsi or Jew child. As per Hinduism, adoption is given due recognition but adoption is not recognized by Muslims.
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RESEARCH OBJECTIVES
The main objective of the research is that to study the concept of adoption practiced among Muslim and the laws related to foster care process under Guardian and Wards Act 1890. A overview about customary practice in Kashmir Valley and about the recent development about the concept.
RESEARCH MATERIAL
This paper was drafted using secondary articles, journals available in online and books for reference.
ADOPTION UNDER MUSLIM LAW
There is nothing like adoption in Muslim law. So, Muslim law does mot recognise adoption. In pre-Islamic Arabia, adoption was prevalent but prophet Muhammad was against it and so it was abrogated by a verse of the Quran.
The entire Mohammedan law of parentage is based on legitimacy so adoption must be out of place in it1. Adoption neither confers the status upon any person, the status of child nor any rights nor any rights of inheritance on the adopted child2. But the institution of adoption may prevail in the following circumstances:
- By Custom: If there is some custom prevailing among some Muhammedan communities, then that may be the force of law. Among some Hindu converts to Islam, the custom of adoption still prevails3. But the burden of proof that such custom is prevailing is on the person who asserts.4 But after the coming into force of the Shariat Act, 1937, such custom seems ro be abrogated because custom will prevail over the provisions of Muslim law except to the extent to which they have been abrogated by section 3(1) of this Act and if a declaration is made as required by it, the custom shall stand abrogated.5
- By law: If some provisions of any Act permit adoption, then it may have the force of law. Section 29 of the Oudh Estates Act, 1869 permits a Mohammedan talukar to adopt a son.6 The law has not been superseded by the Shariat Act, 1937.
In Maulvi Mohammad v. S. Mohboob Begum,7 the Madras High Court has held that if in fact the custom of adoption is prevailing it can be pleaded and proved. If such custom or usage is proved, there is no need of any declaration as to be made under section 3(1) of the Shariat Act, 1937 by any one concerned so as to rule out the existence of custom of adoption. This means to suggest that the formal declaration by the parties concerned is not necessary and that id such custom or usage is prevailing and gas been proved, it would be seemed that the parties have implied accepted the application of that custom.
But where the Shariat Act is not application, a Muslim may adopt under te customary law, if it prevails. For example, in Jammu and Kashmir where te Shariat Act is not applicable, adoption by Muslim under the customary law is valid.
CONCEPT OF ADOPTION IN QURAN
The custom of adoption was prevalent in Pre-Islamic Arabia based on a sense of Comrade-Ship in arms in some instances. The system of adoption seems to have received some recognition by the adoption of Zaid. Even the prophet Mohammad himself took Zaid, the son of Haris in adoption.8 But Prophet himself disapproves adoption. The relevant verse of Quran contained in section33, A, A 4-6 reads as under:
“Allah has not made for any man two hearts in his breast nor has he made your wives whom ye divorce by Zihar your mothers nor has he made your adopted sons your sons, such is your (manner of) speech by your mouths. But Allah tells (you) the truth and he shows the (right) way call them by after their fathers: that is just in the sight of Allah but if ye know not heir father’s names (then they are) your brother’s in faith, or your friend’s but there is no blame on you if ye make a mistake there in: (what counts is ) the intention of your hearts: and Allah is forgiving, most merciful. The prophet is closer to the Believers than their own selves and his wives are their mother’s blood relations among each other have closer personalities, in Book of Allah than (the Brotherhood of) believers and Muhajirs.8
From the above passage of the Quran, if has been asserted that adoption in technical sense is not allowed in Muslim law. It is submitted that in it were prohibits adoption, the intention of the Prophet was that if a man called another’s son “his son” it might create complication with natural and normal relationship if taken too literally. The idea of the Prophet was to convey that the real son is a real son and adoption son is not a real son. If the above verse of is interpreted to mean tat the prophet has prohibited adoption it can nit be assumed tat wat is prohibited by the Holy Quran can be permissible by custom and usage. The conclusion therefore, a that the Holy Quran nowhere prohibits adoption.
In Mst Fahmeeda v. Mst Zareefa10 where the party alleges custom of adoption of daughter which has not received any recognition, court held that burden of proof of its validity is on the petitioner. Thus, there is an overwhelming number of decisions that Muslim Law recognizes adoption by custom.
CUSTOMARY ADOPTION
It appears that in the Kashmir Valley, some Muslim families, many be due to the proximity of the Hindu Population, seem to adopt children, especially if they do not have their own natural born Children, A case to this effect has been reported as Yaqoob Laway v. Gulla.11 The Shariat Act of 1937, extends to the whole India except the State of Jammu and Kashmir, nevertheless adoption amongst Muslims in the Kashmir Valley seems to be in vogue as is indicated by the term, Pisarparwarshah (which literally means, adopted son).
Tis could be only as a matter of custom, and nor by way of any established Principle recognized under the Islamic law. This is evident from the fact that the adopted Child of Muslims does not figure among his heirs specially mentioned in the Holy Quran. This implies that customarily adopted son not become an heir to the heritable property of his adopted father.
RECENT DEVELOPMENT
In the present case, Shabnam Hashmi v. Union of India,12 the three main issues have brought before the supreme court. These were the following:
- Recognition of the right to adopt and to be adopted as a fundamental right under Part III of the constitution.
- Optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed, etc.
- Direction to the Government of India to enact an option law the prime focus of which is the child with consideration like religion etc., taking a hind seat
It may be noted here that before this judgement, in Lakshmi Kant Pandey v. Union od India,13 the Supreme Court of India is a high watermark in the development of the law relating to adoption. Dealing with inter-country adoptions, elaborate guidelines as been laid by this court to protect and further the interest of the child. A regulatory body, i.e., Central Adoption Resource Agency was recommended for creation and according set up by the Government of India in the year 1989. Since then, the said body has been playing a pivotal role, laying sown norms both substantive and procedural, in the matter of inter as well as in country adoptions. The said norms have received statutory recognition on being notified by the Central Government under rule 33(2) of the Juvenile justice Rules, 2007 and are today in force throughout the country, having also been adopted and notified by several States under the Rules framed by the States in exercise of the Rule-making power under section 68 of the JJ Act, 2000.
In the case of Shabnam Hashmi case, the Supreme Court has stated that prospective parents have option to employ the provisions of section 41 of Juvenile Justice Act, 2000 to adopt a child or they can also choose not to do so and submit themselves to their applicable Personal Laws.
However, Personal Laws cannot dictate the operation of provisions of an enabling statute like Juvenile Justice Act, 2000 and cannot come in the way of person who chooses to adopt a child under Juvenile Justice Act, 2000. Juvenile justice is a secular law and small steps in reaching the goal of Uniform civil Code under article 44 of constitution of India. Juvenile Justice overrides Personal Law when resorted to by any person. So, Adoption by Muslim permitted vide Juvenile Justice Act, 2000.
Ultimately Supreme Court held that Muslims can adopt a child with full rights as natural parents under provisions section 41 of the Juvenile Justice Act, 2000.
RULES FOR ADOPTION IN MUSLIM LAW:
The rules of adoption under Muslim Law are as under:
- The adoptive parents are not allowed to hide the identity of the Child’s biological family.
- The tie of the child with his biological parents is never severed.
- Adoptive parents are not the biological parents of the adoptive child.
- In Islam adoption means ‘Kafala’. It means ‘to freed’. In other word the foster - parent relationship.
- The adoptive parents are not allowed to change or alter the name and surname of the adoptive child.
- Adoptive child inherits from his biological parents and not from his adoptive parents.
- As soon as the adoptive child becomes grown up the adoptive family ceases to be his blood relatives.
- Adoptive parents are not allowed interfere with the property of the child given for adoption. They are merely the trustee of such property
CONCLUSION
From the above information it is conclude that India is a secular country practicing utmost equality amongst its citizen. Right to adopt a child, right to parenthood in case who are not able to become parents naturally have no other recourse rather than adoption. Thus, adoption in its purest form is universal as well as basic fundamental right which cannot be denied to anyone. It is a well settled universal principle that when there is a conflict or ambiguity between the personal law and the universal fundamental rights then the universal fundamental rights shall exist. Thus, the Supreme Court of India is right in its decision in granting adoption rights to all. The ultimate spirit of the constitution lies in equality to all rather than fragmentation under the name of personal law
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