Adoption under Muslim Law
When there is a direct proof of marriage and a child born out from such marriage, the question of acknowledgement does not arise because in such cases the legitimacy is ipso facto (by that very fact or act) established. If there is no such direct proof of legitimacy so legitimacy may be proved by indirect proof which is called acknowledgement. Islam does not identify adoption; however it recognizes is ‘Acknowledgment of Paternity’. Muslim Law only recognises the concept of Ikras (acknowledgement). Such an Acknowledgement has to be made by the father only and not mother. Therefore, this only doctrine applies when there is case of uncertainty about the legitimacy of a child. The father (acknowledger) and the mother of the child must have been lawfully joined in marriage at the time when the child was conceived. It is essential to show that the child is not the fruit of an adulterous intercourse; otherwise the issue will be illegitimate and the acknowledgement will be ineffective. The acknowledger must be an adult and of sound mind i.e., competent to make a contract. Also, the acknowledgement must not be made casually. However, a person can always adopt on the order of Court under the Guardianship and Wards Act, 1890.
Muhammad Ali Khan vs Muhammad Ibrahim Khan (1929) PC
The father had made the acknowledgement of child casually and had not intended his acknowledgement to have serious effects. The Privy Council held that the mere act of the father is not sufficient to confer the status of legitimacy on the child. Council further stated that acknowledgement of paternity under Muslim Law is the nearest approach to adoption. Under Adoption the child who is adopted is identified as the son of another person, while in paternity the essential of acknowledgment is that the Acknowledgee must not be known son of another.
Succession under Muslim Law
Muslim law does not recognize the concept of separate property, governed by Shariyat laws. If a Muslim individual happens to die without making a will, then after his/her death the property under his/her ownership would be distributed among the legal heirs. There are two schools under the Muslim law, the Shia and the Sunni school of law. Under the Shia law, the property of the deceased person is divided per strip which means per relationship their share in the family, while under the Sunni law, the property is divided as per capita which means per head according to which they get equal share in the heritable property.
Offspring of Zina
An offspring of Zina means a child born either out of marriage or; from a mother who is married wife of another man or; of void marriage. Such child cannot be acknowledged by the man who has committed Zina.
Notion of All India Muslim Personal Law Board (AIMPLB)
AIMPLB believes that adoption cannot be allowed due to fear of sexual relations between adopted child and mother or an adopted son with a biological daughter and likewise situations. AIMPLB member Kamal Faruqui, “In Islam, all relations are ordained by Allah. Physical intimacy with a person with whom nikah and sexual relations are possible, is not permissible. So an adopted son cannot live in the same house as the mother or a biological daughter. What if a 60-year-old man has a young wife and they adopt a son, who soon grows up? What will his relationship with the mother be?”
Rights of Adopted Person in the Ancestral Property of the Biological Parents under the Muslim Law
Acknowledgement produces all the legal effect of a natural paternity and vests in the child the right of inheriting from the acknowledger.
Shabnam Hashmi v Union of India, (2014) 4 SCC 1
Ms. Shabnam Hashmi (Petitioner) had approached court back in 2005 after she was told that she had only guardianship rights over a girl she had adopted. She was subject to the Muslim Shariyat Law which does not recognize an adopted child on par with a biological child. The Supreme Court extended the right of adoption to Muslims also, under the provisions of Juvenile Justice Act which is to prevail over all personal laws and religious codes in the nation. The Three judge bench (Chief Justice P. Sathasivam and Justice Ranjan Gogoi and Justice Shiv Kirti Singh) stated that personal laws would continue to govern any person who chooses to submit himself/herself until such time that the vision of a uniform civil code is achieved. The Hon’ble Court also stated that adoption is a matter of personal choice and there is no compulsion on any person to adopt a child.
Juvenile Justice Act, 2002
In India, although adoption is allowed under a secular Juvenile Justice Act (Care and Protection of Children) Muslim Laws prohibit inheritance rights or giving one’s name to an ‘adopted’ child. Prospective parents have option to employ the provisions of S. 41 of JJ Act, 2000 to adopt a child or they can choose otherwise and submit to their Personal Laws. However, Personal Laws cannot dictate the operation of this Act and cause hindrance to the person who chooses to adopt a child. Following are the related significant provisions of Act:
- Section 2(aa) of the Act defines Adoption as:
“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.”
- Section 2(k) of the Act defines Child as:
“A person who has not completed eighteenth year of age
- Section 41(2) of the Act provides that:
“Adoption shall be resorted to for the rehabilitation of the children who are orphan, abandoned or surrendered through such mechanism as may be prescribed.”
Therefore, this Act gives the adoptive parents and the child all the rights, privileges and responsibilities which are attached to a normal parent-child relationship. With this adults who would like to go for adoption, irrespective of their religious background, would be free to access this secular act for adopting children, following the procedure prescribed in it.
Therefore paternity of child cannot be established by a Muslim if he happens to adopt a child of whom he is not actual father, so the acknowledgement of parentage is only a substitute for adoption. If an adoption takes place, then an adopted child retains his or her own biological family name (surname) and does not change his or her name to match that of the adoptive family. The adoptive parents thus do not enjoy the status of the natural parents.
Written by Advocate Monika Thakkar
[B.A.LL.B.(Hons.); LL.M. (Business Laws)]
References:
- “Acknowledgement and Parentage of a child in Muslim Law” https://www.writinglaw.com/acknowledgement-and-parentage-of-a-child-in-muslim-law/
- “AIBE: Guardianship, Adoption and Succession under Family Law” By Subodh Asthana, Dated: September 30, 2019 https://blog.ipleaders.in/aibe-guardianship-adoption-succession/
- Adoption: Under Hindu, Muslim, Christian And Parsi Laws – Requirements for a valid adoption”, Romit Agrawal, LSI http://www.legalserviceindia.com/articles/hmcp_adopt.htm
- AIBE: Guardianship, Adoption and Succession under Family Law” By Subodh Asthana, Dated: September 30, 2019 https://blog.ipleaders.in/aibe-guardianship-adoption-succession/
- “Acknowledgement and Parentage of a child in Muslim Law” https://www.writinglaw.com/acknowledgement-and-parentage-of-a-child-in-muslim-law/
- “Child Adoption Under Muslim Law”, Hello Counsel https://www.hellocounsel.com/muslim-law-adoption/#:~:text=Islam%20does%20not%20recognise%20adoption.&text=In%20the%20Case%20titled%20as,religious%20codes%20in%20the%20country
- “Why the Muslim Personal Law Board will not agree to allow adoption in Islam”, Sanya Dhingra. Dated: June 4, 2018 https://theprint.in/india/governance/why-the-muslim-personal-law-board-will-not-agree-to-allow-adoption-in-islam/65757/
- Dated: July 16, 2019 “Adoption in Hindu Law and Muslim Law” https://www.lawteacher.net/free-law-essays/family-law/adoption-in-hindu-law-and-muslim-law-law-essay.php