Critical Analysis of Adoption Under Muslim Law

Evolution of Adoption

The Juvenile Justice (Care and Protection of Children), 2015 defines adoption as the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child. Adoption is derived from the Old French word adoptare, meaning “to choose for oneself. In legal language, adoption refers to a legal proceeding that develops a parent-child relation between persons not related by blood; therefore, creating a non-biological relation between the parent and the child. The adopted child receives the same privileges as the natural child of the adoptive child, therefore creating no difference between the two except that of blood. It is pertinent to note that the right of inheritance is available to an adopted child. The practice of adopting isn’t new, in fact it was an ancient practice and could be traced back to the Code of Hammurabi and Codex Justinianus.

Adoption was prevalent in ancient India due to cultural and religious reasons. A prominent reason for this being the need of a son during funerary rights which are practiced until today.

The nineteenth-century witnessed certain legislations that were being formulated for the process of adoption. The laws revolving children, especially laws that deal with adoption are formulated keeping in mind the ‘best interest of the child’. But the main question that lies is as to why people look forward to adopt. The main reason behind this is the decline in fertility rate amongst couples. Another obscure reason could be the growing competition amongst the youth that makes most couples sideline family planning.

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Adoption Under Muslim Law

References made to Adoption in Quran

In Pre-Islamic Arabia, the practice of Adoption was common. It was not perceived as taboo. The adopted member of the family was considered no different from the other family members. It is extremely important to note that the adopted member had all rights to inheritance which was not witnessed later.

Prophet Mohammed had adopted Zayd, the son of Haris. But some authors are of the belief that the Prophet himself disapproves adoption as inflicted by a few verses in the Quran. The relevant verse of the Quran as contained in S. 33. 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 (only) 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 their father’s names, (then they are) your brothers in faith, or your friends but there is no blame on you if ye make a mistake therein: (what counts is) the intention of your hearts: and Allah is Oft-Forgiving, most merciful. The Prophet is closer to the believers than their own selves, and his wives are their mothers. Blood relations among each other have closer personal ties, in the Book of Allah, than (the Brotherhood of) believers and Muhajirs.”

This verse nowhere explicitly forbids adoption but it reflects the idea of the prophet that an adopted boy cannot be equated with a real son as it may create complications by calling another man’s son his own son. The Prophet simply believes that it wouldn’t be right to call another’s son his own in the eyes of the Almighty.

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As stated earlier, Zayd is the adopted son of the Prophet. The Prophet married Zayd’s wife, Zaynab b’ Jashn. Some scholars are of the belief that Zayd and Zaynab divorced only so the Prophet could marry her. The Prophet came under attack for this as pre-Islamic custom regarded it a taboo for a man to marry the divorced wife of his adopted son. Further, even the Holy Quran also forbids a man from marrying the divorced wife of his son. The jurists believe that Quran 33:4-6 and 33:37-40 were revealed to defend the Prophet and to clarify the position of Islam on this very issue.

Furthermore, Zayd’s adoption was rescinded too. This issue and the resulting verses made it possible in Islam for a man to marry the divorced wife of his adopted son in spite of it being in contravention with the customs prevailing in Arabia. This led to the Jurists concluding that the Quran also negated the creation of fictive relationships like adoption.

Adoption by Customs

The custom of adoption exists amongst many classes of Mohammedans in India like in Punjab, Ajmer, Kashmir, Bombay, Madhya Pradesh, and amongst Mahavatan in Rajasthan. In Abdul Hakim v. Gappu Khan, the Rajasthan High Court made an observation of there being significant oral evidence supporting the custom of adoption among the Mahawats.

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In Neeno Khan v. Mst. Sugani, it was held by the same High Court that by virtue of custom, Mohammedans might also have system of adoption. In Mst. Bibi v. Syed Ali, the Rajasthan High Court came up with the following findings:

(i) Adoption, as a rule, an alien concept in Muslim Law.
(ii) Mohammedans may also have the system of adoption by custom.
(iii) If a muslim claims to have been adopted by custom, it is necessary for him to prove the same.

There are numerous cases indicating that adoption by custom is still in existence amongst Muslim communities.

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Reasons why legal adoption prohibited

A woman is forbidden from marrying her marham. A woman’s marham is someone who she is prohibited to marry due to close blood relations or due to radaa’ah or being breastfed by the brother’s wife or the man whose wife breastfed her or because of being related due to marriage. An adopted child is not believed to be the marham of the mother or father. In fact, on the adopted boy attaining maturity, the mother is required to wear a hijab and the daughter likewise.

The Muslims strongly respect biological relations. Therefore, a mark of respect for the biological father of the child, the child must carry the name of his biological father in spite of being adopted by a different family. Muslims do not believe in the alteration of original identity. But such a practice at times can prove to be problematic for the child. For instance, if one’s biological father is a criminal, carrying the biological father’s name may bring shame to the child, might lead to mental infliction of pain due to harassment and bullying by their peers. Even society at times might shun such a child. This might result in severe trauma and can drastically affect the mental well-being of the child.

A mentioned in the beginning, inheritance rights are guaranteed to the adopted child, but the Islam is of a different view in this regard. Some scholars have strongly argued that the right of inheritance of a woman ought to be sabotaged if an adopted child comes into play.

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According to Sura-al-Nisa, a woman is entitled to 1/4th of the property in absence of a son. Therefore, if legal adoption is practiced, the woman is entitled to not more than 1/8th of the property. There is also a provision of gifting 1/3rd of the property to others.

Loopholes in these reasonings

The arguments put forth by some scholars are illogical and have no sensible explanation to it whatsoever. The problem of mahram is not even a substantive problem. It encircles around the concept of ‘acceptance’. Most of these arguments revolve around the fact that the adopted child is not considered as the ‘legitimate child’ of the adopter simply because of direct biological relation. For most, legitimacy equates with blood relation. The problem of mahram could be tackled by acknowledgment, recognition as one’s own, as this problem seems to be more psychological than simply biological. A more conservative way of dealing with this would be to breastfeed the child.

The problem with using the name of the biological parent has been debated earlier. Therefore, we now deal with the question of inheritance. It is extremely important to shine light upon the fact that motherhood is not just a state of being, it is an emotion, an experience. It is considered one of the most beautiful experiences experienced by a woman in her lifetime. Thus, the question that lies ahead is if inheritance could prevail over the experience of motherhood for a woman? This question could receive different answers as it is simply a personal choice. But the fact that some consider it as the most intimate experience cannot be denied either. Whether a woman would give upper hand to her property or a child is solely a question for her to answer. And it is not the job for any religious scholar to determine that on her behalf. We are in the age of feminism where women prioritize their careers, which in no way is wrong, but the choice of having a child is partly hers to make along with her partner. By letting religion preside over this choice of a woman, we’re not progressing, rather regressing to the age-old practices that dictated the life of women.

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Shabnam Hashmi Vs Union Of India And Others

The above case could be considered as landmark judgement with respect to the practice of adoption under Muslim Law. In the notable judgment, the petitioner filed a writ petition under Article 32 of the Constitution requesting the court to lay down optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed etc. The petitioner had taken her daughter in custody in 1996. But due to the prevailing adoption laws applicable to Muslims, the petitioner was simply regarded as a guardian and her daughter, a ward. Therefore, the petitioner approached the Hon’ble Supreme Court to be regarded as the lawful parent of her adopted daughter.

The issues laid down before the Supreme Court were as follows:

(a) Whether adoption of a child could be regarded as a fundamental right?
(b) In case of contradiction between personal law and secular law, what would prevail?
(c) Whether caste, creed and religions affect the adoption procedure?

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The petitioner rightly argued that the Juvenile Justice (Care and Protection of Children) Act, 2000 is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Juvenile Justice (Care and Protection of Children) Rules, 2007 and the CARA Guidelines. The Act was a small step in reaching the goal enshrined by Article 44 of the Constitution of India that lays emphasis on a Uniform Civil Code.

The personal beliefs and faiths, must not dictate the operation of the provisions of an enabling Statute. The petitioner also put forth an argument in favour of right to adopt being a fundamental right. On the contrary, the respondent contended that Islamic Law fails to recognize an adopted child to be at par with a biological child. Islamic law follows the “Kafala” system under which the child is placed under a ‘Kafil’ who provides for the well-being and betterment of the child. Under this system, the child continues to remain the true descendant of his biological parents and not that of the adoptive parents.

The Hon’ble Supreme Court held that the Juvenile Justice Act, 2000 being a secular law is applicable to all people, including Muslims. Thus, a Muslim, in spite of being governed by the Muslim personal law can adopt a child. The Apex court opined that it is up to the prospective parent to decide whether he chooses to be governed by the Juvenile Justice Act or the personal laws applicable to him. The court also stated that it is not an appropriate time and stage to declare right to adopt as a fundamental right under Article 21 of the Constitution.

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Adoption: A Personal Choice

The laws revolving around adoption have evolved with time. The rights of children have been recognized; several countries are enacting and amending their laws in order to give effect to this right. But along with children’s rights, parents’ rights also step into the picture. The case of Shabnam Hashmi will act as a precedent highlighting both rights of parents as well as children to adopt and be adopted. Religious practices must be duly honoured but we must know where to draw the line. Personal laws are of utmost importance to religious communities but it is our duty to recognize the toxicity of certain practices and customs and abolish them. The recognition of the rights of the adopted child is a matter of grave concern amongst the Muslim community. The laws revolving around adoption and the practices have to be reviewed.
As discussed before, adoption can be due to fertility issue and for a couple facing these issues, adopting a child may seem like a ray of hope. By inflicting personal laws upon them, telling them that they’d be nothing more than guardians to the child they’d take into care is not only insensitive but also unjust. Every woman deserves to feel the bitter sweet experience of motherhood by ‘choice’. We must make a constant effort to irradicate the customs and traditions that take away the right of being a parent from individuals. Guardianship can in no way be equated with being a parent. Being a parent is not just a title one gets for rearing child, but is also an emotional experience. Therefore, we must make a constant effort to make sure every person is entitled to be a parent by his own choice and not that by traditions and personal laws.

References

  • Juvenile Justice (Care and Protection of Children), 2015 (2 of 2016) S. 2 (2)
  • Bhandari, A. K. “ADOPTION AMONGST MOHAMMEDANS—WHETHER PERMISSIBLE IN LAW.” vol. 47, no. 1, Journal of the Indian Law Institute, pp. 110–114. , 2005.
  • Vinita Bhargava, Adoption in India: Policies and Experiences, page 45 (SAGE Publications Pvt. Ltd; First edition, 2005
  • Juvenile Justice (Care and Protection of Children), 2000 (56 OF 2000)
  • Abdul Hakim & Ors. V. Gappu Khan, S.B. CSA No. 115/1950
  • 1974 WLN (UC) 8
  • S.B. SA No. 132/1990
  • Shabnam Hashmi V. Union of India and Others 2014 SCC online SC 144
  • Quran, Surah – 33

This article is written by Aayushi Mittra, Student (B.L.S LLB) at Pravin Gandhi College Of Law.

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Also Read – Is Consent of the Husband Required for Adoption in India?

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