February 28, 2024
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A legal transfer is what adoption entails. In general, newlyweds would rather adopt a child than have a child of their own. As we can see, orphanages in India are teeming with children who don’t have parents to care for them. Many parents these days give birth to a girl and immediately toss her in the trash without giving it a second thought.

The rate of this crime is rising daily. People in this generation also don’t appreciate the worth of a girl child, even with such advanced educational credentials. Half of the population consists of children who are not being cared for by their legal parents.

What is Adoption?

  • The legal process of adoption involves the transfer of a child’s rights and obligations from the biological parents to the adoptive parents. The welfare of the child is the only goal of adoption.
  • Adopting a child creates a new bond between the adoptive parents and the child, so it’s critical to take into account all the variables that could have an impact on the child before adopting.
  • Once the adoption process is finished, the biological parents will not have any rights over the child.

adoption under muslim law

  • Adoption was widespread in Arabia prior to the advent of Islam. The adopted family member was treated the same as the other family members and it was not considered a taboo practice. It’s crucial to keep in mind that, although this was not later acknowledged, the adopted member had the right to inherit all property.
  • But now, child adoption in muslim law is not recognized under Islam. It contains nothing resembling the provisions outlined in Hindu law. The only recognition granted by Muslim law is the “Acknowledgment of Paternity.”
  • The child’s legitimacy is established by this principle. The paternity of a child is established upon a Muslim who recognizes the child as his legitimate child. It cannot be used to give legitimacy to a known illegitimate child.

judgment on adoption in muslim law

Facts of the Case:

  • In the case of Shabnam Hashmi vs Union of India, in a writ suit filed under Article 32 of the Constitution, the petitioner asked the court to establish optional rules that would allow anyone, regardless of caste, religion, or creed, to adopt a child. In 1996, the petitioner had taken custody of her daughter.
  • However, the petitioner was only considered a guardian and her daughter, a ward because of the adoption laws that were in place at the time and applied to Muslims.
  • As a result, the petitioner asked the Honourable Supreme Court to recognize her as her adopted daughter’s legal parent.

Issues of the Case:

The following were the issues presented to the Supreme Court:

  • Can a child’s adoption be considered a fundamental right?
  • Which would take precedence in the event that secular law and personal law disagreed?
  • Does the adoption process differ based on caste, creed, or religion?

Judgment of the Case:

  • The Juvenile Justice Act of 2000, according to the Honourable Supreme Court, is a secular law that applies to everyone, including Muslims. Therefore, a Muslim is able to adopt a child even though they are subject to Muslim personal law.
  • The decision of whether to be governed by the Juvenile Justice Act or the personal laws that apply to him is left up to the prospective parent, according to the ruling of the Apex court.
  • The court further declared that, in accordance with Article 21 of the Constitution, it is not the proper moment or stage to declare the right to adopt as a fundamental right.

Also, in the case of State vs. Ashabuddin, the Delhi High Court ruled that just because someone is subject to Muslim personal laws, it does not mean that they cannot exercise their rights under the JJ (Care and Protection of Children) Act.

Why is it Forbidden to Adopt in Islam?

  • Though Islam allows and even encourages caring for orphans, the orphans cannot live with you as a family unit until they reach puberty. According to the Islamic verse, Allah has predetermined every relationship in Islam.
  • It is against the law to make physical contact or have sexual relations with someone with whom nikah is possible. As a result, an adopted son and a biological daughter cannot live in the same house.
  • Although adoption is legal in India under the secular Juvenile Justice Act (Care and Protection of Children), it is believed that Islam prohibits giving a “adopted” child inheritance rights or one’s name.
  • Though adoption is forbidden in Islam, the Supreme Court of India ruled in 2014 that a Muslim could adopt a child under the Juvenile Justice Act.

Islam’s adoption regulations have evolved over time. The rights of children have been recognized, and some countries are enacting new legislation or revising existing ones to give these rights legal force. However, it is also crucial to take into account the rights of parents in addition to those of children. In Islamic adoption cases, the Shabnam Hashmi case will set a precedent emphasizing the rights of both adoptive parents and adopted children.

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