A remarkable Supreme Court judgment of February 19th, 2014 allows Muslim parents the “right to adopt” and the kids the “right to be adopted”. Hearing the writ petition filed by civil rights activist Shabnam Hashmi eight years back for gaining parental rights for her ward Seher Hashmi Reza whom she had adopted eighteen years ago and remained a guardian till the judgment, a three judge bench noted that the provisions of the Juvenile Justice Act (JJ ACT) 2000, on adoptions would prevail over all personal laws. According to the JJ Act 2000 duly amended in 2006″adoption” means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship”
The Court noted that “adoption was a matter of personal choice and there was no compulsion to adopt a child”. The Muslim personal law forbids adopted children the legal rights in property or in personal matters of their parents thus terming them as just the guardians and not parents of the child. The court cited the petitioner’sclaim that the JJ Act, 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption. It is akin to the Special Marriage Act 1954,which enables any person living in India to get married under that Act, irrespective of the religion he follows. JJA 2000 with regard to adoption is an enabling optional gender-just law and the court found the contention satisfying.
Whereas the All India Muslim Personal Law Board that was allowed to intervene in the legal matters filed a detailed written submission that it was satisfied with the fact that according to the JJ Act, 2000 adoption is only one of the methods contemplated for taking care of a child in need of care and protection and that Section 41 of the Act “explicitly recognizes foster care, sponsorship and being look after by after-care organizations as other/ alternative modes of taking care of an abandoned/surrendered child” . “But the Islamic Law does not recognize an adopted child to be at par with a biological child”.
According to the Board, Islamic Law professes the “Kafala” system under which the child is placed under a ‘Kafil’ or “Guardian” who provides for the wellbeing of the child including financial support and thus is legally allowed to take care of the child though the child remains the true descendant of his biological parents and not that of the “adoptive” parents.
The court instead observed that “a person was always free to adopt or choose not to do so andinstead follow what he comprehends to be the dictates ofthe personal law applicable to him”. In this case as petitioner Hashmi had also asked for a declaration thatthe right of a child to be adopted and that of the prospectiveparents to adopt be declared a fundamental right under the “Article 21 of the Constitution”.But the court did not find it necessary to go into the details of the matter.
Before this path breaking judgment the adoption laws prevailing in the country permitted only Hindus, Sikhs and Jains,the right to be legally recognized as a parent whereas other parents were left to be just the guardians of their wards. As activist Hashmi sums up “It is the parent child bondage that mattered. All children want to be the sons and daughters of their parents and not just the wards.”
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