Abstract: incongruities sieging the adoption of non-Muslims by

Abstract: India continues to function under multiple personal laws. However, such a system also sustains its own drawbacks and in due course fashions an endless cycle of prejudice and iniquity. The law concerning adoption is one facet of law where the adverse influence of personal laws is perceptible. In this context, the Shabnam Hashmi case has brought into the open the judicial incongruities sieging the adoption of non-Muslims by Muslim parents and the absence of legal rights thereof. At this intersection of affairs, it is imperative for the best interests of the child to be identified and premeditated efforts to be made by the law-makers to resolve the existing differences. The judgment bears significance as it is one of those endeavours made by the Government towards the creation of a uniform Civil Code. This paper seeks to review and analyse the various tenets of the judgment.INTRODUCTIONParenthood is one of the most treasurable accomplishments of a person’s life. Occasionally, however, this wonderful episode of life escapes some of us on many counts, like infertility, economic constraints, spinsterhood, etc. The means of assisted reproductive techniques, by and large, involve hefty disbursements of time and money and the common man often fails to fund it. Thus, mankind formulated the solution of adoption. Adoption is an institutionalized practice through which an individual belonging to one kinship group acquires new kinship ties that are socially and legally defined as equivalent to the congenital ties . The new kinship supplants the old ones wholly or in part. To break it down, adoption is the permission of a stranger to the privileges of a child by birth – a legally recognized form of a relationship. The adopted son is placed in the adoptive family like a natural son. Adoption is a process to incorporate a child permanently into a family with all the rights of a natural child, in which he was not been born. Traditionally, a child was adopted for temporal and spiritual purposes and more recently, to satisfy the emotional and parental instincts of the adopters. Adoption has always been deemed to be a fantastic opportunity to provide a child with a home and parents. Needless to say, it surpasses institutional care of destitute, abandoned and neglected children and places them in an atmosphere of love, affection and understanding which is much needed for their fullest and best development.Straggling under the weight of a multitude of personal laws, the law on adoption knows no uniformity. Conventionally, Hindu law did not recognize the adoption of a daughter since only a son can satisfyingly complete the religious rites and practices essential to the Hindu religion. Prior to the enactment of the Hindu Adoption and Maintenance Act, 1956, adoption of a daughter was unbeknownst to the cohorts of the religion. As far as Islam is concerned, the Shariah does not acknowledge the institution of adoption. However, there are provisions for looking after orphans (kafala) and guardianship whereby a child in need can be taken care of. In fact, the religion enjoins Muslims to take care of orphans and safeguard their person and property. However, in such cases, the child or ward remains to be a part of his biological family only and is not on a level plane as the biological children of the person taking care of him. It is law that gives an adoptive child legitimacy as a biological member of the adoptive family and this supersedes all ties from his biological family. The enactments that deal with Christian personal laws in India, make no mention of adoption. However, if a custom can be proved, there would be no bar to adoption. The Parsis whose personal laws are governed by the Parsi Marriage and Divorce Act, 1936 and Pt. III of Indian Succession Act, 1925, have no provision for adoption. However, a custom prevails among Parsis known as the palak where the widow of a childless Parsi can adopt a child after four days of her husband’s death so that certain religious ceremonies could be performed annually. This child acquires no property rights.In the Shabnam Hashmi v. Union of India  judgment by the Apex Court, it was maintained that the provisions of the Juvenile Justice Act, 2000, shall supersede the personal laws and that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000 irrespective of religion he or she follows and even if the personal laws of the particular religion does not permit it.ADOPTION AS A FUNDAMENTAL RIGHT: A Record of Judicial ResponsesIn the matter of adoption of Payal @ Sharinee Vinayak Pathak  was a case which brought into the judicial sphere the question of adoption as a fundamental right. In this case, the petitioners already had a daughter and they assumed the guardianship of another surrendered baby girl of five months. The girl remained with them for 4 years after which the couple formally applied to adopt the child. The High Court of Bombay observed that adoption is a basic facet of right to life under Art. 21 of the Indian Constitution. The Court held that the right to life is asserted parents and individuals, men and women seek to adopt to give meaning and fulfilment to their lives. Also, the right to life also protected the interests of children who are in need of special care and protection. Therefore, the court held that the embargo on adoption of same sex children by the HAMA would have to give way to statutory provisions in the J. J. Act that allowed the parents to adopt a child irrespective of the number and sex of their biological children. In Philips Alfred Marvin v. V. J. Gonsalves , the Court upheld the legal validity of an adoption undergone through the help of the Church despite the absence of any law or customs. The Court also held that adoption was recognised under Christian law and the adopted child had same rights as that of a natural child.In Mohammed Allahabad Khan v. Mohammad Ismail  it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System. Acknowledgement of paternity under Muslim Law is the nearest approach to adoption. The material difference between the two can be stated that in adoption, the adoptee is the known son of another person, while one of the essentials of acknowledgement is that acknowledge must not be known son of another. However an adoption can take place from an orphanage by obtaining permission from the court under Guardians and Wards Act.In Re: Manuel Theodore D’souza 1999 , a Christian couple wanted to adopt a child. But the petitioner being Christians are only entitled to be appointed as a guardians. The question arose that whether a civilised state committed to the rule of law, governed by a written constitution and signatory to International Conventions on the Rights of a child, could deny to a section of its own citizens the right to adopt a child and to give that child, a home, a name and nationality. The court concluded by stating that the fundamental right to life of an orphaned, abandoned, destitute or similarly situated child includes the right to be adopted by willing parent/parents and to have a home, a name and a nationality. The right to be adopted, therefore is an enforceable civil right which is justiciable in a Civil Court. In the absence of any legislation setting out who can adopt, person or persons who has/have taken a child in guardianship under the Guardians & Wards Act will have the right to petition the courts to adopt the child. Considering that it is the welfare of the child which is paramount the Court before giving the child in adoption must satisfy itself, that it is in the best interest of the child that the person or persons whom guardianship of the child is given is and/or are suitable parent or parents.SHABNAM HASHMI v. UNION OF INDIA (2014) 4 SCC 1A public interest litigation (PIL) was filed under Article 32 of the Constitution requesting the Supreme Court to lay down optional guidelines to enable and facilitate adoption of children by persons irrespective of religion, caste, creed, etc. The petitioner, a Muslim and a civil rights activist Shabnam Hashmi on her visit to an adoption centre in New Delhi’s suburbs, was told that they did not have any Muslim children. Shabman Hashmi who had a son wanted to adopt a daughter to make a complete family. However she learnt that Muslims cannot adopt or be adopted and if they want to do so it can only be done by virtue of The Guardians and Wards Act, 1890, which does not give a legal status of biological parents nor does adoptee have any rights of inheritance. Nevertheless, she took a girl in her custody. The petitioner under the prevailing adoption laws applicable to Muslims, was called only a guardian and her daughter, a ward. Later she approached the Supreme Court to be legally recognized as the parent of her adopted daughter. The petitioner in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 (JJ Act, 2000), stated that the prayer made in the writ petition with regard to the guidelines was satisfactorily answered and admitted before the Supreme Court that the JJ Act, 2000 is a secular law enabling any person, irrespective of the religion she professes, to take a child in adoption. The All Indian Muslim Personal Law Board (AIMPLB) however raised an objection that the Islamic Law (Muslim Personal Law) does not recognize adoption and instead professes “kafala” system under which the child is placed under a “kafil” who provides for the well being of the child including financial support and legally allowed to take care of the child. Further, the Islamic law does not recognize an adopted child to be on par with a biological child and adopted child remains the true descendant of his biological parents and not that of the “adoptive” parents.The Court disposed the matter on 19th February ’14, without issuing any such direction, but it emphasized that the provisions relating to adoption under the Juvenile Justice (Care and Protection of Children) Act, 2000 can be availed by any person notwithstanding the position of adoption under the personal law. The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV under the head ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection. Such rehabilitation and social reintegration was to be carried out alternatively by adoption or foster care or sponsorship or by sending the child to an after-care organization. Section 41 contemplates adoption though it makes it clear that the primary responsibility for providing care and protection to a child is of his immediate family. Sections 42, 43 and 44 of the JJ Act, 2000 deal with the alternative methods of rehabilitation namely, foster care, sponsorship and being looked after by an after-care organization. The JJ Act, 2000, however did not define ‘adoption’ and it is only by the amendment of 2006 that the meaning thereof came to be expressed in the following terms:”2(aa)-“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”Nevertheless, the Supreme Court did not recognize adoption as a fundamental right under Article 21 and claimed self-restraint. The Court’s refusal to the right to adopt is an integral part of Article 21, which guarantees the right to life and liberty, is not convincing. In this era of judicial activism it is absurd to say that the Supreme Court has no Constitutional responsibility to discharge the obligation under Article 44 to strive towards the enactment to a Uniform Civil Code is not satisfactory.ANALYSIS1. Whether Muslims can adopt child with full rights as natural parents – The Bench held that Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in2006 (JJ 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 JJ Act, 2000, the Rules, that is, the Juvenile Justice (Care and Protection of Children) Rules, 2007 and the CARA (Central Adoption Resource Agency) Guidelines, as notified under the JJ Act, 2000. The JJ Act, 2000 does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the JJ Act, 2000, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to the dictates of the Personal law applicable to him. The JJ Act, 2000 is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured cannot dictate the operation of the provisions of an enabling statute. An optional legislation that does not contain an unavoidable imperative cannot be stultified by the 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 a Uniform Civil Code is achieved. The same can only happen by the collective decision of generations to come to sink conflicting faiths and beliefs that are still active as on date.2. Whether right to adopt/ or be adopted can be raised to the status  of a fundamental – The fundamental rights embodies in Part III of the Constitution constitute the basic human rights which inhere in every person and such other rights which are fundamental to the dignity and well-being of citizens. While it is correct that the dimensions and perspectives of the meaning and content of the fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt r to be adopted to the status of a fundamental right, will have to await a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country. The legislature which is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue has expressed its view for the present, by the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the same must receive due respect. Conflicting viewpoints prevailing between different communities, as on date, on the subject makes the vision contemplated by Article 44 of the Constitution, that is, a Uniform Civil Code a goal yet to be fully reached and the Court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain restraint. All these impel the Court to take the view that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/ or to understand such a right to be encompassed by Article 21 of the Constitution.A CRITICAL APPRAISAL OF Shabnam Hashmi v Union of IndiaIn earlier cases, we see that the Court took the role of judicial activism and safeguarded the right of adoption as an inherent right implied in the right to life under Art. 21 of the Indian Constitution.However, this stance changed with the recent decision in the case of Shabnam Hashmi v. Union of India and Ors  In the instance case, the question came up regarding the right of Muslim’s to adopt. The Court took a liberal view and awarded adoptive right to Muslims under the JJ Act. It upheld the status of JJ Act as a secular law of adoption in India and granted the right to adoption across all religious communities in India, irrespective of what their personal laws said. However, the Court rejected the stance that the right to adoption was a right envisaged under the right to life of Art. 21.  The court stressed that it is for Parliament to meet the constitutional obligations of Article 44, that it is for future generations to craft a UCC once there is “a dissipation of conflicting thought processes… prevailing in the country.” The Supreme Court tried to discharge the matter in this case by taking recourse to Art. 44 and the controversy behind a Uniform Civil Court. This decision came as a major blow against the right of adoptive parents and children eligible to be adopted alike.However fair it may be to grant the right of adoption the status of a fundamental right, we are unable to do so due to the Supreme Court’s decision in the Shabnam Hashmi case. The decision brought about a need to revise our adoption laws so that the joy of parenthood can be enjoyed by everyone. Every child in India should have the right to family and often the child adopted is too young at the time of adoption and does not know about biological parents.Thus, in conclusion we can say, since the Supreme Court has expressly mentioned, the right to adopt is not a fundamental right in India. However, it strongly needs to be so since it would provide a respite to childless couples and parentless children. A nurturing home is essential for a child to grow into a healthy human being, mentally and psychologically. It becomes the responsibility of the Courts to make sure to adopt and to be adopted is a fundamental right for both children and parents so that countless orphans and childless parents get some form of respite. The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its subsequent amendment in 2006 is definitely a significant effort of the legislature towards recognition of adoption of orphan, abandoned and surrendered children by people irrespective of their religious status. It can’t be denied that it is a secular legislation only under which any person can adopt a child being orphan, abandoned and surrendered child irrespective of his/her religion. It is more children oriented unlike other legislations. But it may be mentioned at the same time that some more factors need to be considered specifically by the legislature. As for example, this Act stipulates adoption by any person irrespective of his/her marital status, but it does not specify whether the consent of the other spouse is required to be obtained by the adopting spouse in case adoption by a married couple. This might create misconceptions among the Hindus as in Hindu Laws (HAMA) taking consent of the wife by her husband is an essential criteria for adoption. Secondly, the Act is silent about the criteria for age difference between the adoptee and adoptive parents in case they are of opposite sex. This is an essential factor for adoption, which should be considered seriously for the purpose of preventing child abuse and trafficking. All these facts are obviously applicable to all religions and therefore, it is necessary to specify them for the interest of the children. However, there must also be suitable and strict guidelines, rules and regulations to ensure that such an absolute right is not being misused as recent cases have shown us that many a times, adopted children are trafficked, sold or used for scientific experiments or for child pornography. A strong vigilance system should be put in place to carefully and consciously monitor the adopted child as well.CONCLUSIONIt can be concluded from the above discussion the while Hindus have a codified law for Adoption procedure, the Muslims, Christian and Parsis still lack this privilege. It was for this reason that the idea for Uniform Civil Code was discussed and suggested to be enforced. Despite this, the apex court in Shabnam Hashmi v Union of India did not comply with this idea and said that time has not yet come to elevate the right to adopt as a fundamental right. It also observed that the idea of UCC can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date. With regard to this, the project lays down criticism and supports the Kerala High Court Judgement in the case of In Re Theodore Manuel v Unknown which supports the aforesaid idea and hence the need for a Uniform Civil Code. Further the last part of the project, which deals with Competency of a Person in Adoption Process, has laid down the legal provision with respect to the Hindus, Muslims, Christians and Parsis, covering the Hindu Adoption and Maintenance Act and the Guardianship and Wards Act.


I'm Owen!

Would you like to get a custom essay? How about receiving a customized one?

Check it out