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Right to happiness

For 32-year-old Rabia Khatoon, hailing from a middle-class Muslim family, the ultimate desire after getting married was to have a child. Eight years into the marriage and numerous medical tests later, doctors declared that she was medically unfit to conceive. Both her fallopian tubes were blocked (one infected and the other completely left redundant) after her appendix had burst during childhood. This meant that she could never conceive a child.

Rabia and her husband Shoaib wanted the joy of having a child and were keen on adoption but the elders in the family dissuaded them citing religious reasons. In their desire for Rabia to conceive a child, her family visited numerous religious shrines across the country.

Family elders advised the couple to remain the way they were and maintain their attempts to conceive a child, as religious diktats weren’t in favour of adoption. Luckily for Rabia, the couple’s prayers were answered and now at 40 she has two beautiful daughters. But what if Rabia hadn’t got lucky? There are many couples like them who want to adopt a child but are unaware about what Islam says about adoption.

We must understand here, what Islam’s views on adoption really are. The Quran doesn’t stop you from adopting a child but there is a way you can go about doing it. ‘The Islamic way of adoption is defined in a particular way, which is not conceptually different from the definition of ‘adoption’, as referred to in the Juvenile Justice Act, amended in June 2006. The act says that once you adopt a child, the consequences for the adopted child will include the civil right of succession of property etc., as a biological kin would posses. Essentially, there would be no difference between an adopted and biological child. But succession is an issue, which is differently addressed by every religion and has been protected by law accordingly,’ explained Supreme Court advocate M R Shamshad.

It is important to note two crucial points in case of adoption in Islam. If a Muslim has to adopt a child then it can be done within the boundaries of Muslim Personal Law. As per Islamic Law, firstly the adopted child will not have the right to succession after the death of adoptive parents. Secondly the child will not be given adoptive father’s name. He will still be known after the name of the child’s biological father.

In Islam, the concept of ‘Kafala’ exists, which has been referred to in the Supreme Court judgment as well. ‘Kafala is defined as voluntary material and emotional support to an abandoned or surrendered child. If you are taking the personnel law route, you are immersed in the practice of Kafala, which entails that you will bring the child home and take care of him, fulfilling all his requirements. You will treat him like your child but not as your child. The child still will be attached with the name of his biological father. He can be made your brother if the father is not known. He will not have any right to succession. Kafala says that apart from retaining the father’s name and right to succession, it includes everything else,’ explained All India Muslim Personal Law Board member Naseem Iqtidar Ali Khan.

When it comes to legality in dealing with adoption in Islam, even if the child doesn’t have a right to succession, it doesn’t mean that during the parent’s lifetime they can’t gift him something or transfer money or property in his name. That can definitely be done. ‘As per the Kafala system, parents can do everything which is required to be provided for an adoptive child. As far as property rights are concerned, in their lifetime they can give him whatever they want to and there is no restriction on that. It is only after their death that the personal law of succession will be applicable, where he will be excluded. Therein lies the difference, as the personal law of succession will not entitle the adopted child to claim anything,’ said Shamshad.

Recently the Supreme Court ruled that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of the religion he or she follows and even if the personal laws of the particular religion don’t permit it.

The existing contention is between Islamic beliefs on adoption and what the Supreme Court has ruled : ‘Recognition of the right to adopt and to be adopted as a  fundamental right under Part-III of the Constitution  is  the  vision  scripted  by  the public spirited individual who has moved this Court under Article 32 of  the Constitution.  There is an alternative prayer requesting the Court to lay down optional guidelines enabling adoption of   children   by persons irrespective of religion, caste, creed etc., and further for a direction to the respondent Union of India to enact an optional law the prime focus of which is the child with considerations like religion etc., taking a hind seat,’ stated the judgement.

In his ruling Justice Ranjan Gogoi said, ‘It is contended that Islamic law does not recognize an adopted child to be at par with a biological child.   According to the Board (the All India Muslim Personal Law Board ), Islamic Law professes what is known  as  the ‘Kafala’  system under which the child is placed under a ‘Kafil’, who provides  for  the  well being 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 Supreme Court recorded the contention of the Board stating ‘that  the  Kafala  system,  which  is recognized  by  the  United Nation’s Convention of the Rights of the Child under Article  20(3)  is  one of the alternate system of child care contemplated by the JJ Act,  2000  and therefore a direction should be issued to all the Child  Welfare  Committees to keep in mind and follow the principles of Islamic Law before declaring  a Muslim child available for adoption under  Section  41(5)  of  the  JJ  Act, 2000’. Speaking to Millennium Post, AIMPLB spokesperson Abdur Raheem Qureshi, said that they were planning to avail legal options against the judgement as the verdict ‘interfered’ with fundamental rights guaranteed under Article 25 of the Constitution. ‘We have two options before us which includes seeking a review of the judgement or we should oppose what the Juvenile Justice Act has set out. Most likely we will be taking up the issue with respect to the Juvenile Justice Act,’ said Qureshi.

Explaining what this implies, Shamshad said, ‘The Supreme Court judgment says that this is a secular law and you are free to adopt or not to. Islamic law gives the right to adopt with limited definition of adoption. The issue is that if someone adopts now under the general law then the person will have to give their name and also the right to succession to the adopted child and to this extent this definition of general law is contrary to Kafala’.

‘This is the inherent contradiction with religious law. If Kafala is recognized by the general law, as exception to followers of Islam, then it will harmonise the conflict. Needless to state that there is Muslim Personal Law (Shariat Application) Act, 1937 in force, save Islamic law’, he added.
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