This article has been written by Ms, Neha Singh, a Third-year student of Lloyd Law College, Greater Noida.

Abstract: 

A legal transfer is what adoption involves. In general, newlyweds would rather adopt a kid than have a child of their own. As we can see, orphanages in India are full with children who don’t have parents to care for them. Many parents these days give birth to a girl and immediately dump her in the trash without giving it a second thought. The rate of this crime is rising daily. People in this generation also don’t appreciate the worth of a girl child, even with such advanced educational credentials. Children who are not cared for by their legal parents make up half of the population. The greatest way to ensure they have a decent life is to adopt them. It also contributes to keeping the nation’s population stable.

Introduction:

Adoption is a long-standing tradition, but the adopted child’s rights are protected by the legal framework. Personal laws control the adoption procedure for children in India. Due to the diversity of religions practiced there, there are essentially two sets of laws in place. In India, it is against the law for Muslims, Christians, Parsis, and Jews to adopt children; instead, they must apply for guardianship under the Guardians and Wards Act of 1890.

For Indian people who follow Buddhism, Sikhism, Jainism, or Hinduism, formal adoption is allowed. The adoption is governed by the Hindu Adoption and Maintenance Act of 1956. Adoption is within the personal legislation category. This means that this law is governed by numerous personal laws from other religions.

Adoption under Muslim Law: 

Adoption was a common practice in pre-Islamic Arabia. It was not seen as a taboo practice, and the adopted member of the family was treated the same as the other members. An important point to remember is that the adopted member was entitled to inherit all property, something that was not observed later.

Zayd, the son of Haris, had been adopted by Prophet Mohammed. However, some academics think that the Prophet himself disapproves of adoption, as evidenced by a few Quranic texts. The pertinent Quranic verse found in S. 33. A. 4-6 is as follows:

“No one has two hearts in his breast; neither has Allah made your adopted boys your sons, nor your spouses whom you divorced through Zihar your mothers. This is the only way you speak with your mouths. However, Allah reveals the Truth to you and the path that is correct. Refer to them by the names of their fathers: that is just what Allah sees. However, even if you are unaware of their fathers’ names, you can still consider them your friends or brothers in faith. It doesn’t matter if you make a mistake; what matters is the intention in your hearts, and Allah is incredibly gracious and forgiving. The wives of the Prophet are their mothers, and the believers are closer to the Prophet than they are to themselves. In the Book of Allah, blood links are more intimately linked to one another than they are to the Brotherhood of Believers and Muhajirs.’’

Although the prophet suggests that an adopted boy cannot be compared to a biological son since doing so could lead to issues, this passage does not specifically condemn adoption. The Prophet merely thinks that in God’s view, it wouldn’t be appropriate to claim another person’s son as his own.

Zayd is the Prophet’s adopted son, as was previously mentioned. Zaynab b’ Jashn, Zayd’s wife, was awed by the Prophet. According to some scholars, Zayd and Zaynab’s divorce was arranged specifically so that the Prophet might wed her. Because it was considered improper by pre-Islamic custom for a man to wed his adopted son’s divorced wife, the Prophet faced criticism for this. Furthermore, a man is prohibited from marrying his son’s divorced wife even by the Holy Quran. Jurists hold that Quran 33:4-6 and 33:37–40 were revealed to support the Prophet and make clear Islam’s stance on this particular matter.

In addition, Zayd’s adoption was revoked. This matter, along with the verses that followed, allowed a man to marry his adopted son’s divorced wife in Islam, despite the fact that this went against Arabian customs. As a result, jurists came to the conclusion that the Quran additionally refuted the establishment of fictional relationships such as adoption.

Rights of adopted child under Muslim law :

Adopted children’s rights in Islamic law differ slightly from those in other legal systems. It is noteworthy that adoption is not recognized in Islamic law in the same manner as it is in many Western countries. Islam has a tradition called “kafala,” which is a kind of sponsorship or guardianship, in place of adoption.

An orphan may be placed under kafala, which allows someone to care for their upbringing and general welfare, but the child does not inherit from the guardian in the same manner as a biological child.

1. Inheritance:  The rights of an adopted child, or kafala, differ from those of biological children. Legal heirs are chosen by familial ties, and Islamic inheritance laws are mostly based on blood relationships. Neither the adopted parent nor the adopted child inherits from the other.

Legal heirs in Islamic inheritance law include parents, siblings, and other immediate family members. The laws governing inheritance are primarily derived from the Quran and Hadith. When it comes to inheritance, adopted or kafala children are not seen as belonging in the same category as biological offspring.

1. Lineage: Islam emphasizes the importance of keeping children’s biological or blood ties to their biological parents. The value of maintaining family ties and understanding one’s ancestry is emphasized in both the Quran and the Sunnah (the teachings of Prophet Muhammad).
2. Mahram Relationship: The term “mahram” in Islamic law designates people who are not deemed suitable for marriage because of their intimate blood ties or familial ties. These connections create an intimate level that keeps some people from getting married. In Islam, the idea of mahram partnerships is important for upholding modesty and avoiding unsuitable marriages. In Muslim law, the mahram relationship plays a role in identifying who is unmarried to whom when it comes to child adoption or kafala (guardianship).

The adopted child does not form mahram ties with members of the adoptive family in traditional adoption procedures when the child adopts the name and ancestry of the adoptive family. This is due to the differences between blood and legal connections.

The adopted or kafala child does not form mahram ties with the adoptive family members in the setting of kafala, where the child retains their original name and lineage.

1. Financial Responsibility: Adoptive parents, also known as kafala parents, are in charge of meeting the adopted child’s fundamental requirements, such as clothes, food, and housing. Adoptive parents, also known as kafala parents, are responsible for making sure the adopted child has access to a quality education. This includes paying for education, books, and other associated fees. It is expected of adoptive parents, also known as kafala parents, to cover all medical costs and necessary treatments for their adopted child. Adoptive or kafala parents are in charge of the child’s entire upbringing, which includes providing emotional and mental health care. Financial support for the adopted child into adulthood may be required, particularly if they experience difficulties or need help.
2. Informed Consent: Usually, the biological parents’ approval is needed before an adoption can happen. This is particularly significant in Islam, where there is a strong emphasis on lineage preservation and acknowledging biological relationships. Getting the child’s consent may include taking into account factors such as their age and level of maturity. As the child grows older and is able to comprehend the ramifications of adoption, this becomes very important. All the legal, social, and religious aspects of adoption in Islam should be explained to adoptive parents. This entails realizing the obligations associated with raising the child, ensuring their welfare, and upholding their legal rights.
3. Naming and  Identity: It is commonly preferred in Islam for an adopted child, also known as a kafala, to keep their original name—the one that their biological parents gave them. The significance of maintaining the child’s identity and ties to their ancestry is emphasized by this practice. In Islamic teachings, the notion of bloodline, referred to as “nawab” in Arabic, is paramount. Children who are adopted or raised under kafala are encouraged to keep in touch with their biological family; kafala allows for the care of orphans without severing these links. In Islamic adoption, or kafala, the kid usually keeps their family name and identity, unlike in many Western adoption methods where the child may assume the adoptive family’s surname.

This is consistent with the Islamic focus on maintaining ancestry. It is crucial to communicate openly regarding the child’s name, origin, and family history. It is recommended that adoptive or kafala parents communicate honestly with their adopted child about their origins in order to help them recognize and value their heritage. Muslim communities may differ in terms of naming customs and cultural expectations. In the context of adoption or kafala, it is crucial to take cultural sensitivities and norms into account while choosing naming standards.

Related Case: 

According to Muslim personal law, adoption is forbidden, whether it comes from an orphanage or somewhere else. However, the Guardians and Wards Act of 1890 offers Muslims an alternative of adopting a child through guardianship.

“Shabnam Hashmi v. Union of India, (2014) 4 SCC 1 : under the Juvenile Justice (Care and Protection of Children) Act, 2015, people can consider adoption regardless of their religious convictions or the fact that their own laws forbid it. Regardless of personal law, this historic ruling gives Muslim families a more flexible legal framework to adopt and care for underprivileged children. However, the panel of three judges—Justices Ranjan Gogoi, Shiv Kirti Singh, and Chief Justice P. Sathasivam—argued that personal laws would still be applicable to those who chose to submit till the goal of a single civil code is achieved.

The petitioner, Ms. Shabnam Hashmi, came before this court in 2005 after discovering that her only guardianship rights concerned an infant, she had taken from an adoption institution. Because she was a Muslim, she was obligated to follow Muslim Shariat Law, which did not treat adopted children equally with biological children. Adoption and adoption rights should be recognized as Fundamental Rights, according to Ms. Hashmi’s argument. The bench, however, disagreed, stating that the nation’s customs and values demonstrated a difference of opinion among the populace. The Honorable Court went on to say that no one was required to adopt or adopt a child, and that adoption was a personal decision.

Section 2 of the Juvenile Justice Act of 2002 defines adoption. All of the privileges, responsibilities, and rights associated with a normal parent-child relationship are granted to both the adopted child and the adoptive parents. With this declaration, prospective parents, regardless of their religious background, would be free to utilize the secular Juvenile Justice Act’s provisions for the adoption of children after completing the required procedure.

Reference: 

Child adoption under Muslim law in India. (restthecase.com)

All you need to know about child adoption laws In India – iPleaders

Critical Analysis of Adoption Under Muslim Law – Law Corner

Shabnam Hashmi vs. Union of India, (2014) 4 SCC 1