Child adoption under Muslim law in India.

Law
28-Nov-2022
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Despite being a long-standing practice, adoption has a legal framework in place to safeguard the adopted child's rights. Child Adoption process in India is governed by personal laws, and because there are so many different religions prevalent there, there are primarily two sets of rules in effect. Muslims, Christians, Parsis, and Jews in India are prohibited from adopting children under their laws, instead, they typically seek guardianship of a child under the Guardians and Wards Act, of 1890.

Formal adoption is permitted for Indian nationals who practice Hinduism, Jainism, Sikhism, or Buddhism. The Hindu Adoption and Maintenance Act of 1956 governs the adoption. Within the purview of personal legislation is adoption. As a result, multiple personal laws from many religions control this law.

Before filing a "suit for partition" in court, you must first gather all the evidence required to prove that your child was lawfully adopted and that he received his half of the family estate. In addition, we might advise you to include the buyer of the subject property as a party to the claim for the division if it has already been sold without your permission.

Child Adoption under Muslim Law

Many people inquire whether Muslims can adopt children. Adoption, whether from an orphanage or elsewhere, is not permitted in the personal laws of Muslims. However, Muslims have an alternative to adopting a child through guardianship under the Guardians and Wards Act, 1890. Additionally, recent court judgments, such as the landmark case "Shabnam Hashmi v. Union of India, (2014) 4 SCC 1," indicate that individuals, irrespective of their religious beliefs, and even if their personal laws do not permit adoption, can explore adoption under the Juvenile Justice (Care and Protection of Children) Act, 2015. This landmark judgment offers a broader platform for Muslim couples to adopt and care for children in need, irrespective of personal law.

However, the panel comprising of three judges, Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiv Kirti Singh, argued that until the goal of a single civil code is realized, personal laws would continue to apply to everyone who chooses to submit.

Ms. Shabnam Hashmi, the petitioner, came before this court in 2005 after learning that she only had guardianship rights over a young child she had brought home from an adoption facility. She was bound by Muslim Shariat Law because she was a Muslim, and this law did not consider an adopted child to be equal to a biological child.

Ms. Hashmi argued in favor of the recognition of adoption and adoption rights as Fundamental Rights. However, the bench rejected the argument, claiming that the country's traditions and beliefs revealed a division of opinion among the people.

The Honorable Court further stated that adoption was a personal choice and that no one was obliged to adopt or adopt a child.

Adoption is defined by Section 2 of the Juvenile Justice Act of 2002. It grants the kid and the adoptive parents all of the rights, advantages, and obligations that come with a typical parent-child relationship.

With this statement, prospective parents would be free to use the secular Juvenile Justice Act's provisions for the adoption of children after following the necessary procedure, regardless of their background in religion.

Source:https://lawbhoomi.com/shabnam-hashmi-vs-union-of-india/

https://indiankanoon.org/doc/105818923/