Gourav Kumar | School of Legal Studies, CMR University, Bangalore | 13th November 2019
Throughout history, adoption has held a contentious and ambiguous role in the social imagination of many cultures. Adoption is a complex social, legal, and economic phenomenon that has existed in one form or another in most societies since ancient history. Religion has served to both advance and restrict adoption and similar childcare arrangements. Some religions have encouraged adoptions, others have initially been interpreted to restrict them, and yet others continue to restrict or advocate alternative arrangements. The belief that closed adoption, as practiced in the West, is the only acceptable form of permanent childcare is a significant obstacle to its acceptance among many Muslims. Adoption rights activists—and prospective adopters—have struggled to find ways around the difficulties this simple binary view causes for the millions of children around the world who could benefit from a loving home. With increasing numbers of abandoned and orphaned children and a growing number of hurdles, there is now an added urgency to tackle this issue. It is beyond the scope of this chapter to grapple with all of the nuances and issues raised by adoption in Islam. The goal of this chapter is more modest. It is to contribute to a better understanding of Islamic views on adoptions. The researcher has tried to throw some light on the history to understand the background behind the concept of Adoption The researcher has further made an attempt to enlighten the readers regarding the verses of Quran and the provisions of Muslim Personal Law (Shariat) Application Act, 1937. At the end of paper an attempt has been made to point out some flaws that are existing and the solutions to those flaws has been put forward by the researcher by making a reference to the recent Apex Court Judgement.
The Secular Constitution does not recognize (…) the existence of different varieties of matrimonial violence like Hindu violence, Christian Violence, Muslim Violence and secular violence.
–Justice Arvind Kumar Tripathi
A popular perception is that it consists of separate bodies of law governing different religious groups. There are many authors on Muslim Law who are of the view that unlike Hindu Law, i.e. creating a relationship of parentage, is unknown to Mohammedan law. Tyabji, a renowned author on Muslim law in his book The Personal Law and Muslims in India and Pakistan has observed that “Adoption is not known to Muslim Law”. Syed Khalid Rashid in his book Muslim Law has observed that Muslim law does not recognize the validity of any mode of filiations where the parentage of the person adopted is known to belong to a person other than the adopting father. B.R. Verma in his Commentary on Mohammedan Law has stated that “Adoption shall not confer upon any person the status of a child except in the cases where subject to the provisions of the Shariat Act (XXVI) of 1937, there is valid custom of adoption and where it is permitted by the provisions of any law for the time being in force.”
Similarly, other authors like Ameer Ali, Wilson, Abdur Rahim have also observed in their commentaries that adoption is unknown to Mohammedan law. According to these authors, the Holy Quran prohibits adoption. It appears that adoption is not permissible amongst muslims or adoption is not known to Muslim law.
Meaning and motives of Adoption
Adoption is the practice through which an individual belonging by birth to one kinship group acquires new kinship ties that are socially defined as equivalent to the congenital ties. These new ties supersede the old ties either wholly or in part.
It is “the voluntary acceptance of a child of other parents to be the same as one’s own child”…., “the taking of an outsider into a clan or tribal group and investing him with the rights and responsibilities of the original members”
According to Black Law Dictionary, Adoption means the act of one who takes another’s child into his own family, treating him a shis own, and giving him all the rights and duties of his own child.
According to Section 2(2) of Juvenile Justice (Care and Protection of Children) Act, 2015, ‘Adoption’ means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.
The most generally known motives of adoption may be summarized as follows. It is an artificial means for satisfying the supreme human desire of procreation, or the most primitive desire of having an heir or the fulfillment of religious obligations of the family. Sometimes its motive is the legitimization of illegitimate children, thus removing the stigma of illegitimacy from the child born of illicit relations. Las but not the least an important motive of adoption is the assurance if child welfare or provision of proper home for children deprived of parent or such facilities provided through adoption by persons who are capable and willing or eligible to do so.
Practice of Adoption among other Communities
The motives behind adoption or the practice and formalities regarding adoption have been varied throughout the world. Among Aryan Hindus, for example, it was practiced mainly from religious motives. Among Jains and Hindu dissenters its object has almost invariably been provision of an heir to an issueless parent or parents. Among the Greeks it was prevalent for the protection of the family estate as well as the performance of religious obligations. In China it was practiced as a religious duty as it was compulsory for every childless married man to obtain a son for the perpetuation of ancestor- worship and the family and tribal organization. In Japan where adoption is widely prevalent today, it is imported from China, where the considerations are both religious as well as mundane.
Generally, the effect of adoption in all communities has been investment of all rights and devolution of obligations of a natural son on the adopted son. However, in some societies, as the ancient Greece, the adopted son was sometimes allowed to return to his natural father’s family and resume his natural rights and duties, provided he was willing to surrender all his claims relating to his adoptive parent’s estate.
Adoption in Pre-Islamic Arabia
Adoption was existing in Arabia in the pre-Islamic period. Its origin was similar to that of the Romans and Hindus in so far as it was connected with religious ideas. In pre-Islamic days, an adopted member was to be regarded as its equal member like the other true-born members of the family. He or she had the right to share in the inheritance as well as in the duties and obligations towards the family.
It was due to the practices prevailing in those days that the Prophet also adopted Zayd b. Haritha as his son.
The Holy Quran and the history behind the term ‘Adoption’
The practice of adoption was prevalent in pre-Islamic Arabia. The system of adoption seems to have received some recognition by the adoption of Zaid. Even Prophet Mohammad himself took Zaid, the son of Haris in adoption.
In the commentary of Holy Quran by Mushaf Al-Madinah An-Nabawiyah edited by The Presidency of Islamic Researchers, IFTA, it has been observed with regard to the above as under:
The reference is to the Muhajirin and the Ansar, the Emigrants and the Helpers, the people who forsook their homes and adopted voluntary exile from Makkah in company with their beloved Leader, and their good friends in Madhinah, who gave them asylum and every kind of assistance, moral and material. Under the magnetic personality of the Holy Prophet these two groups became like blood-brothers, and they were so treated in matters of inheritance during the period when they were cut of from their kith and kin.
Later on, the custom of adoption remained prevalent amongst Mohammedans. It is, however, on the basis of a verse in the Quran, it has been held by the various authors that the Prophet himself disapproves adoption. The relevant verse of Quran as contained in S.33. A.4-6 reads as under: “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.”
From the above passage of the Quran, it has been asserted that adoption in technical sense is not allowed in Muslim law. It is submitted that a careful reading of this passage will show that it nowhere prohibits adoption. The intention of the Prophet was that if a man called another’s son This son” it might create complication with natural and normal relationship if taken too literally. The idea of the Prophet was to convey that the real son is a real son and adopted son is not a real son.
To treat an adopted son, a real son it one has no real son is not a mistake as what connts is the intention of the heart. Even if according to this verse, the adopted sons are to be called by the name of their father and if father’s name is not known then to call them mulls or brother, this verse nowhere says that if any adoptions made by a man who has no son of his own, it will be against the dictates of Allah. According to Prophet if someone will recognize a man by the name of his natural father it will be more just in the sight of Allah. The Prophet has not barred adoption in absolute terms. What is intended is erecting of false relationship to the detriment or loss of true blood relation. The doctrine advanced by Prophet is based on the situation where there is already a natural son. What if there is no son to a couple? Can he adopt a son for himself and treat him like his real son? It may be noted that Prophet has envisaged that in case of slaves, they should be known by their father’s name.
Now in modern world, Slaves in the technical sense no more exist and the social and psychological perspective of this kind of practice cannot be ignored. The impact that this kind of practice can have is very much evident from the history itself where Zayd’s own wife used to treat him like a slave.
In the later part of the history it can be observed that Zaynab b. Jahsh, who was wife of Zayd (adopted son of Prophet) was divorced by Zayd. Subsequently, Prophet Mohammad married her. There is some disagreement about the reasons for the divorce with some scholars stating that she was divorced for the sole reason that the Prophet Mohammad could marry her. Now, pre-Islamic custom considered it as a taboo for a man to marry the divorced wife of his adopted son due to the fictive relationship of descent created upon public announcement of an adoption. Moreover the Holy Quran also prohibited a man from marrying a woman divorced by his son.
Naturally, the Prophet came under heavy attack from people who thought this was against the prevalent custom and from people who thought it violated the Quranic prohibition on marrying a son’s divorcee. The classical and pre-modern and contemporary jurists believe that Quran 33:4-6 and 33:37-40 were revealed to defend the Prophet and to clarify the Islamic position vis-à-vis marriage to an adopted son’s divorced wife.
Further, Zayd’s adoption was quickly rescinded and his name returned to his former name upon the revelation of these verses. This incident and the resulting verses made it Islamically permissible for a man to marry the divorced wife of his adopted son contrary to the prevailing custom in Arabia. Jurists also took this to mean that the Quran also negated the creation of any fictive relationship.
It can therefore be very clearly understood from the history and the verses that earlier there was concept of proper adoption i.e closed adoption but after the revelation it was declared not valid. From the history, the intent is very clear, although the revelation is from almighty God. These verses appears to be very illogical in the status quo and has a draconian side of it which cannot be just ignored in the name of religion.
Custom of Adoption amongst Mohammedan
It is be noted that the custom of adoption is prevalent amongst many classes of Mohammedans in India. It has been prevalent in Punjab, Sindh, Ajmer, Kashmir, Bombay, Madhya Bharat, and amongst Mahavatan in Rajasthan. As already pointed out above, the Prophet appears to have recognized the custom of adoption at the time when he adopted Zayd.
It is pertinent to mention that the custom of adoption, which is prevalent amongst Mahavatan community of Muslims is quite similar to that of adoption system amongst Hindus. In Abdul Hakim v. Gappu Khan, the Rajasthan High Court observed that there is overwhelming oral evidencein support of the custom of adoption among the Mahawats.
In Neeno Khan v. Mst. Sugani, it was held by the same High Court that by virtue of custom, Mohammedans might also have system of adoption. In Mst. Bibi v. Syed Ali, the same high court has considered the matter in details and has come to the following findings:
(i) Adoption is, as a rule, not unknown to Muslim Law.
(ii) By virtue of custom, Mohammedans may also have the system of adoption.
(iii) A Muslim who alleges that by custom he is subject of adoption must prove it.
Thus, there are plenty of decisions to support the fact that Muslim law recognizes adoption by custom.
Arguments by Muslim Community for Prohibition of Legal Adoption
There are people who have plenty of arguments for not permitting legal adoption. Some of the major reasons or arguments given by Muslim Community are as follows:
- Concept of Marham-
A woman’s mahram is a person whom she is never permitted to marry because of their close blood relationship (such as her father, grandfather, great-grandfather, etc., and her son, grandson, great-grandson, etc., her paternal and maternal uncles, her brother, brother’s son and sister’s son), or because of radaa’ah or breastfeeding (such as the brother and husband of the woman who breastfed her), or because they are related by marriage (such as the mother’s husband, the husband’s father, grandfather, etc., and the husband’s son, grandson, etc.).
The reason put forward by the people in muslim communities is that the adopted child is not a Mahram to his mother, and in case of adopted child being a girl, she will not be a mahram to her father; and because of which the mother or the adopted girl will have to put hijab when adopted son becomes mature or adopted girl becomes mature.
The researcher is of the view that this particular concept is very much orthodox in nature and should not be followed. But even though it is followed the problem can be solved by breast-feeding the adopted child. Now, there are some controversies regarding the lactation time of a woman. The general view is that women starts lactating as soon as she delivers a child or is pregnant. But, there are other methods like by the use of some kinds of medications lactation can be started without getting pregnant or without even delivering the child(in case where women is not able to deliver a child or there is infertility). So, by adopting these methods and by breast-feeding the adopted child, the issue of mahram can be easily resolved without even going against the Holy Quran.
- Giving own father’s name
The second most important argument given by the muslim community is that the biological father must be respected and the original identity should not be altered. Holy Quran in the verses have dealt with this view. But the verses are very much clear and it is evident that this particular doctrine was given keeping in mind one particular situation and by seeing to the scenario of slaves, which do not even exist in present society. There exists the social and psychological problems also if the adopted child is recognized by the name of original biological parent. For example- if someone adopts a child of a rapist who has been awarded death penalty and the child is known by the name of biological father, the trauma or the societal response that the child will get cannot be even imagined by the normal people.
It is also argued that if legal adoption will be allowed, then injustice will be done to women. According to Sura-al-Nisa, if there is no son of a women then she will get 1/4th of the property. Hence, it is the argument that if legal adoption will prevail, then women can only get 1/8th of the property which will not be justifiable and injustice will be done to women. There is also a provision of gifting 1/3rd of the property to others.
The researcher here finds this argument very vague and illogical because for a women who has no child of her own, having an adopted child will be of greater importance than getting more share in the property. Even assuming she wants more share in the property, the 1/3rd part that can be given as gift can be given to the adopted child. Therefore, putting forward the argument that injustice will be caused to the women by way of legal adoption sounds very much illusionary and illogical in nature.
What does the Muslim Personal Law (Shariat) Application Act, 1937 say on Adoption ?
This Act of 1937 aws promulgated to make provision for application of Muslim Personal Law (Shariat) to Muslims. Section 2 of this Act provides as under:
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
It is evident that this section specially enumerates the subjects or areas which are to be governed by Muslim Personal Law notwithstanding any custom or usage to the contrary. The matters enumerated in Section 2 do not include adoption. For the interpretation of this section, reliance can be made to judgements in Puthiya Purahil Abdurahiman Karnavan v. Thayth Kancheentavida Avoomma and Maulvi Mohd. v.. Mahboob Begam, where it has been held that the non-mention of other subjects such as adoption in respect of which a valid custom could govern and be binding on the parties does not mean that it is not permissible.
The Mysore High Court has also followed the above mentioned view of the Madras High Court in Hajee Abdul Sait v. Controller of Estate Duty.
Therefore it will be no wrong to say that The Shariat Act does not abrogate the custom of adoption prevailing amongst Mohammedans.
Flaws in Muslim Law regarding Adoption
The Muslim law of adoption can be argued to be more restrictive and regressive. Islam does not recognize adoption. The only system it recognizes is of acknowledgment which in itself is quite restrictive and does not give the right to a Muslim male or female to take a child in adoption. In 1972, the Adoption of Children Bill was introduced in the Indian parliament in order to make a uniform law of adoption applicable to all the citizens of India regardless of their religion. However, the Bill was withdrawn by the Government in 1978 and could not be passed. The basis of this restriction is that it shall hamper the rights of the natural born children of the adoptive father or mother. However, the personal law is silent with regard to a childless couple which is the flaw in the Muslim personal law. There is no law in place to grant protection to orphan Muslim children.. The restriction in religion is a genuine criticism of the law. The concept of acknowledgment does no good as it has its own restrictions.
There are other social and psychological problems attached to the restriction imposed by the Muslim law. . For example- if someone adopts a child of a rapist who has been awarded death penalty and the child is known by the name of biological father, the trauma or the societal response that the child will get cannot be even imagined by the normal people.
As per the prevailing practice, father can marry his own adopted daughter just because he has not legally adopted her and that is because of unreasonable restriction imposed by Muslim Law. For example- In Iran, a bill was presented which permitted marrying of adopted daughter by father. This kind of practice is completely against morality and public decency.
In Muslim Law, as per the prevailing practice, adopted child will have no property rights. The whole object behind ‘Adoption’ i.e. welfare of child is of no use and is not fulfilled just because of the restrictive and regressive nature of Muslim Law. The researcher believes that due to this sort of restriction only problems and trauma will be faced by the adopted child and that should not be the condition in society.
Recent case of Shabnam Hashmi verses Union of India and Others 2014 SCC OnLine SC 144
Facts of the case:
In this particular case a PIL was filed under Article 32 of the constitution requesting the Supreme Court to lay down optional guidelines to enable and facilitate adoption of children by persons irrespective of religion, caste, creed, etc. The petitioner, a Muslim and a civil rights activist had approached the Supreme Court to be legally recognized as the parent of her adopted daughter. The petitioner had taken her daughter in custody way back in 1996 but under the prevailing adoption laws applicable to Muslims, the petitioner was called only a guardian and her daughter, a ward.
The petitioner in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, stated in the written submissions that the JJ Act, 2000 is a secular law enabling any person, irrespective of religion he professes, to take a child in adoption.
The All India Muslim Personal Law Board contended that the Islamic law does not recognise an adopted child to be on a par with a biological child. According to the Board, the Islamic law professes what is known as the “kafala” system, and thus the child remains the true descendant of his/her biological parents and not that of the “adoptive” parents.
The Juvenile Justice (Care and Protection of Children) Act, 2000 is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the JJ Act, 2000, the Rules i.e. the Juvenile Justice (Care and Protection of Children) Rules, 2007 and the CARA Guidelines. The JJ Act, 2000 is a small step in reaching the goal enshrined by Article 44 of the Constitution of India. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling Statute.
The concept of adoption among Muslims was discussed in detail in the case of Shabnam Hashmi v. Union of India. The Honourable Apex court invoked the Juvenile Justice Act, 2000 saying that it is a secular law and applies on all people, including Muslims. Thus, a Muslim also even if he is governed by the Muslim personal law can adopt a child.
Conclusion and Suggestions
Adoption is a lifetime decision and the individual who’s most affected by it is the child. Hence, welfare of the child shall be the only ground while giving in adoption to someone.
From the above discussions, it can be clearly inferred upon that the Holy Quran does not prohibit adoption amongst Mohammedans in absolute terms. The custom of adoption amongst Mohammedans has also been held valid. Muslim Personal Law (Shariat) Application Act, 1937 does not abrogate the custom of adoption.The restriction in Muslim law to not take a child in adoption is a denial of personal freedom and more so in case of a childless couple, an alternate for which is not provided under the personal law. This needs serious reconsideration.
There is a need to have a uniform law for adoption irrespective of religious hindrances in a secular country like India when the basis of the law is only the welfare of the child. Article 44 of the Indian Constitution reads as, “The state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” A Uniform Civil Code (hereinafter, ‘the UCC’) administers a uniform set of secular civil laws to govern all people irrespective of religion, caste and tribe. Such a provision supersedes various personal laws. Fundamental right to practice a religion of one’s choice under Article 25 of the Indian Constitution is not an absolute right. The sole basis of adoption is the welfare of the child. All personal laws have some or the other defect in principle or in application. Hence, a uniform law for adoption has now become imperative in India.
Lastly, it can be said that any law is made to serve a purpose and make things easy for people. Unreasonable restrictions in laws deny people basic rights and that is not what is expected of a democratic country. The law of adoption in India needs serious amendments and enactments to have a more conclusive and effective law in place.
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 Supra 6.
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