Muslim law and adoption: India

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Personal law can’t curtail a Muslim’s right to adopt: SC

Dhananjay Mahapatra TNN

The Times of India

New Delhi: In a landmark judgment indirectly pushing for the Constitution-suggested Uniform Civil Code, the Supreme Court on Wednesday ruled that personal law’s bar on adoption would not stop a Muslim from adopting a child if he chose the secular Juvenile Justice (Care and Protection of Children) Act route.

Giving the judgment on a PIL filed by Shabnam Hashmi nine years ago, a bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and S K Singh said a Muslim was always free to exercise his option either to adhere to the personal law’s prohibition against adoption or choose the JJ Act route to take a child into his/her family, the bench said.

“To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution,” it added.

Article 44 of the Constitution provides, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

‘Islam follows Kafla system’

New Delhi: The Supreme Court on Wednesday refused to restrain a Muslim if he/ she chose to take the Juvenile Justice (Care and Protection of Children) Act route to adopt a child. Noting that the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution, the SC bench said, “The vision contemplated in Article 44... that is a Uniform Civil Code, (is) a goal yet to be fully reached.”

The Muslim Personal Law Board had vehemently opposed one Shabnam Hashmi’s plea for a uniform adoption law that would prevail over all religious prohibitions. The board had given elaborate arguments against permitting Muslims to adopt children.

The board had said Islam did not recognize adopted child to be treated at par with a biological child. “Islamic law professes ‘Kafla’ system under which the child is placed under ‘Kafil’ who provides for the well-being of the child including financial support and this is legally allowed to take care of the child though the child remains true descendant of his biological parents and not that of the ‘adoptive’ parents,” it said.

The board attempted to give legal recognition to its religious ‘Kafla’ system by informing the court that even United Nation’s Convention of the Rights of Child recognized it as an alternative to child care contemplated under JJ Act.

Writing the judgment for the bench, Justice Gogoi said: “An optional legislation (JJ Act) that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of Uniform Civil Code is achieved.”