According to the Juvenile Justice (Care and Protection of Children) Act of 2015, adoption is the process by which an adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all of the rights, privileges, and responsibilities that come with being a biological child. Adoption comes from the Old French word adoptare, which means “to choose for oneself.” In legal parlance, adoption is a legal process that creates a parent-child relationship between people who are not related by blood, resulting in a non-biological relationship between the parent and the child. Adopted children enjoy the same privileges as the natural child of that parent, so there is no difference between the two except by bloodline. It is important to note that inheritance rights are accessible to adopted child. Adoption is not a new practice; in fact, it dates back to the Code of Hammurabi and Codex Justinianus.
HISTORY OF ADOPTION IN MUSLIM LAW
Adoption was a common practise in Pre-Islamic Arabia. It was not considered taboo. The adopted member of the family was treated the same as the rest of the family. It is critical to note that the adopted member had full inheritance rights, which were not witnessed later.
Prior to the arrival of Islam, Prophet Mohammed had himself adopted Zayd, the son of Haris. However, some authors believe that the Prophet himself disapproves of adoption, as evidenced by a few verses in the Quran.
REFRENCES MADE IN QURAN REGARDING ADOPTION
The relevant verse of the Quran, as mentioned in the S. 33. A. 4-6 reads as follows:
“Allah has not made for any man two hearts in his breast: nor has He made your wives whom ye divorce by Zihar your mothers: nor has He made your adopted sons your sons. Such is (only) your (manner of) speech by your mouths. But Allah Tells (you) the Truth, and He shows the (right) way. Call them by after their fathers: that is just in the sight of Allah. But if ye know not their father’s names, (then they are) your brothers in faith, or your friends but there is no blame on you if ye make a mistake therein: (what counts is) the intention of your hearts: and Allah is Oft-Forgiving, most merciful. The Prophet is closer to the believers than their own selves, and his wives are their mothers. Blood relations among each other have closer personal ties, in the Book of Allah, than (the Brotherhood of) believers and Muhajirs.”
This verse nowhere explicitly prohibits adoption, but it does reflect the Prophet’s idea that an adopted boy cannot be equated with a real son because doing so may cause complications. The Prophet simply believes that calling another’s son his own would be wrong in the eyes of the Almighty.
Adoption is practised by many classes of Mohammedans in India, including Punjab, Ajmer, Kashmir, Bombay, and Madhya Pradesh etc.
“The question is whether a Muslim can adopt anyone and it is legally allowed or not, was considered by the Division Bench of Allahabad High Court in a decision in the case of “Mohd. Atiq Khan V. Union of India & Ors.”, 2003 (3) AWC 1818 (Justice Markandey Katju, as he then was, and Justice Prakash Krishna). The Division Bench relied on the Full Bench decision of the Allahabad High Court titled “Muhammad Allahdad Khan Vs Muhammad Ismail Khan, (1888) ILR 10 All 290, wherein, it was held that among the muslims, since the doctrine of acknowledgment of paternity is available and there is no question of adoption in muslim law. The Division Bench also relied on the view expressed in Mulla’s Muslim Law Vide Chapter XVII and the Principles of Mohammedan Law by Amir Ali Vide Part II Chapter I.
ADOPTION IN ISLAM PROHIBITED
Islam does not recognize adoption. Adoption is partially recognised under Muslim personal law. A Muslim couple may adopt a child from another Muslim couple who must be the child’s natural parents. If a Muslim couple wishes to adopt a child from an orphanage, Islam forbids them from doing so. For this reason, Muslims have no choice but to rely on The Guardian and Wards Act, 1890. Because of this law, the adopted child receives the same legal status as if the child were biologically born to the adoptive parents. The adopted child, on the other hand, is not granted an inheritance right to the assets of the adoptive parents. Between them exists a Guardian Ward relationship. The parent-child relation does not exist.
According to Muslim law, there is no such thing as adoption, and an adopted son cannot claim inheritance unless the adopted father’s property is self-acquired. The father can then transfer the property to the adopted son or make a will in his favour.
By adopting someone’s child as one’s own, the rightful and deserving heirs to the property of a man are deprived of their shares. Hence, Islam has made it Haram (forbidden) for a father to deprive his natural children of inheritance. Allah has established the distribution of inheritance in order to give each eligible person his or her share. In matters of inheritance, the Quran does not recognise any claim except those based on relationship through blood and marriage. The Quran stipulates (what means); “And those who believed after [the initial emigration] and emigrated and fought with you – they are of you. But those of [blood] relationship are more entitled [to inheritance] in the decree of Allah. Indeed, Allah is knowing of all things.” [Quran 8;75].
SHABNAM HASHMI VS. UNION OF INDIA
The objection to the concept of adoption in the Muslims under the Muslim Personal law as made by Muslim Personal law Board was that Muslim Personal law does not allow adoption. Though the ‘Kafala system’ exists for the benefit of children. According to this system, a Muslim cannot adopt a child, but he can always become a kafil to the child and can provide for the child’s maintenance and well-being, including financial supports to the child even though he is not a biological parent to the child.
The Hon’ble Supreme Court held, that Juvenile Justice Act, 2000 as amended on 2006 is a secular law and applies to all people including the Muslims and the act was enacted for the welfare of children and allows any person to adopt a child.
In re: Manuel Theodore Dsouza21 and Philips Alfred Malvin Vs. Y.J.Gonsalvis & Ors.22. The Board objects to such a declaration for the reasons stated previously, namely, that Muslim Personal Law doesn’t acknowledge adoption though it does not forbid a couple who doesn’t have child from protecting and taking care of a child with material and emotional support. Adoption that is provided under GAWA offers the couple solely the right of guardianship, which refers that the couple are not the exclusive parents of the child, they’re simply child’s guardians and also the the kid can escape and finish this guardianship once he attains the age of eighteen. Even if the child reaches the age of 18, he or she will have weaker inheritance rights and this can be challenged by alternative children and relatives of the that family.
The Right to inheritance in Islam is based on uterine relationship:
Those related by blood have a greater right to (inherit from) each other in the Book of Allah (8:75)
Adoptive parents, on the other hand, can always use their discretion to leave up to one-third of their estate to their adopted child.
- M/S Shabnam Hashmi vs Union Of India & Ors on 19 February, 2014
- Mohd. Atiq Khan vs Union Of India (Uoi) And Ors. on 20 February, 2003
- Muhammad Allahdad Khan And Anr. vs Muhammad Ismail Khan And Ors. on 7 April, 1888
- Manuel Theodore Dsouza21 and Philips Alfred Malvin Vs. Y.J.Gonsalvis & Ors.22
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