Muslim law and adoption: India
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Custody of adopted child
SC awards custody to adoptive parent
Dhananjay Mahapatra, March 7, 2024: The Times of India
New Delhi: In a rare instance, SC stepped around Muslim personal law and awarded custody of a 14-year old girl to her foster parents reversing an Orissa HC ruling allowing the biological parents to take back their daughter, one of the twins who was left in foster care when she was 2-3 months old.
A bench of Justices C T Ravikumar and Rajesh Bindal interacted with the girl, who categorically stated that she was happy with the foster parents with whom she had lived for a decade and half and concluded that in the best interest and welfare of the child, her custody with foster parents should not be disturbed.
Twin daughters were born at Ranchi, where their maternal grandmother resided, to Rourkela-based biological parents in March 2010. As the parents were unable to take care of twins, one was left with the mother’s unmarried sister Shazia Aman Khan when the child was 2-3 months old. Since then, she had lived with her aunt, who later got married and had two children.
In 2015, the biological mother filed a case of kidnapping against her sister to wrest custody of her daughter. But the police closed the case finding the charges false. The trial court accepted the closure report in Feb 2017. Later the mother filed a petition before Patna HC seeking recovery of the child, but she withdrew her petition unable to sustain her plea with cogent grounds. SC bench said, “The fact remains that thereafter the mother of the child did not avail any other remedy for seeking custody of the child. In fact, they were not interested at all. It was the litigation only for the sake of it. The child was left with her maternal grandmother on account of the financial difficulty faced by the father.”
In 2022, a petition was filed by the biological father in Orissa HC seeking custody of the child on the ground that there is no system of adoption of child in Muslim law and that custody of a child can only be given through Kafalah, even though the child does not cut-off relationship with biological parents.
Countering this and to show bona fide about treating the girl as their own daughter, the aunt said she was “ready and willing to deposit a sum of Rs 10 lakh in FDR in bank in her name and also transfer property worth Rs 50 lakh”. It is the welfare of the child and not the personal law or the statute which deserve paramount consideration, the foster mother told SC.
Reversing Orissa high court decision and allowing the child to remain with her aunt, the bench said the 14-year-old girl “is capable of forming an opinion in that regard. She cannot be treated as a chattel at the age of 14 years.”
Personal law can’t curtail a Muslim’s right to adopt: SC
Dhananjay Mahapatra TNN
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.”
