By M Reyaz, TwoCircles.net,
New Delhi: Opinions remain divided on the issue of adoption by Muslims even as the Supreme Court passed a land-mark judgement on February 19, in a 2005 writ petition field by social activist Shabnam Hashmi allowing Muslims to adopt.
While disposing the petition, a bench of Chief Justice P. Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh allowed the adoption under the amended juvenile justice law.
While ‘progressive’ Muslims have hailed the decision as the “best situation,” and as milestone; clerics and the All India Muslim Personal Law Board (AIMPLB) have taken strong objection to the Apex Court decision and are mulling to challenge the judgement for a review.
Reacting to the Court judgement, Abdur Raheem Qureshi, Spokesperson of the AIMPLB informed that the Board will ponder over all legal issues and may file a review petition to challenge the court decision.
General Secretary of the Welfare Party of India, who is also a member of the AIMPLB, too echoed the same sentiments, calling it “against Muslim personal law and shariat.”
President of Zakat Foundation of India Syed Zafar Mahmood, meanwhile, has welcomed the court decision calling it the “best situation,” where the court has allowed Muslims adoption rights, while refraining from making it a fundamental right, as originally urged by the petitioner.
The court noted that the Juvenile Justice Act, 2000, as amended in 2006, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the act, rules and the Central Adoption Resource Agency (CARA) guidelines.
The AIMPLB had argued in the Apex Court that the Islamic Law professes what is known as the “Kafala” system under which the child is placed under a ‘Kafil’ (guardian) who provides for the wellbeing of the child including financial support and thus is legally allowed to take care of the child though the child remains the true descendant of his biological parents and not that of the “adoptive” parents.
The Board contended that the “Kafala” system which is recognized by the United Nation’s Convention of the Rights of the Child under Article 20(3) is one of the alternate system of child care contemplated by the JJ Act, 2000 and therefore a direction should be issued to all the Child Welfare Committees to keep in mind and follow the principles of Islamic Law before declaring a Muslim child available for adoption under Section 41(5) of the JJ Act, 2000.
Union Government had informed the court in a counter affidavit on May 15, 2006 that prospective parents, “irrespective of their religious background, are free to access the provisions of the Act for adoption of children after following the procedure prescribed.”
Shabnam Hashmi had argued in the court that the JJ Act, 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption; and prayed that in view of the enactment of the JJ Act, 2000 and the Amending Act of 2006 to “enable and facilitate adoption of children by persons irrespective of religion, caste, creed etc.”
The Court observed that the JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, Rules and the CARA guidelines, as notified under the Act.
“The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him,” the Court argued, adding, “Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute.”
In an attempt to distinguish between personal law and ‘uniform Civil Code,’ the Court said, “At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved.”
The reference to the “Uniform Civil Code” too had angered the Muslim groups. SQR Ilyas criticised the reference “unnecessary and uncalled for.”
The Court, however, refrained from making the right of a child to be adopted and that of the prospective parents to adopt be declared a fundamental right under Article 21 of the Constitution, as demanded by the petitioner.
“The present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution.”
Contemporary Muslim countries:
Adoption is practiced in various forms in many Muslim-majority countries. Unofficial adoptions within families, as well as secret adoptions, occur alongside the kafala system. In many countries with large Muslim populations, such as Sudan, Tanzania, and India, different laws regulate adoption and kafala for non-Muslim than for Muslim children.
In number of Muslim-majority countries, such as Jordan, Algeria, and Morocco, regulations governing foreign adoption have been modified to allow for, under certain conditions, transfer of guardianship (kafala) of the child to Muslim parents, with the option of later adopting the child under the law of their own country, once the child comes to the new community.
In the five Muslim-majority countries of Indonesia, Malaysia, Somalia, Tunisia, and Turkey, adoption is legal.
Turkey is a particularly noteworthy example, because the Republican civil code allows full legal adoptions; however, several provisions have been put in place to prevent friction with the tradition of kafala in the country.
In addition, adoptive parents in Turkey must care and provide education for the child for at least one year before an adoption can be finalized. This allows the government to monitor whether the adoption is indeed in the best interest of the child before the status is legalized.
In contemporary Egypt, declarations of paternity are accepted as long as the child does not have a known father and the declaration will benefit the foundling. This allows the orphan to become a legitimate member of a family, with the state-recognized protection against sexual harassment and inheritance rights.
What does Islam says?
It’s not that adoption per se is prohibited in Islam, but it is distinct from general practices and customs of adoption in other non-Muslim societies. Raising a child who is not biological progeny is allowed and, in the case of an orphan, even encouraged. In fact, father of Prophet of Muhammad had died even before he was born, and his mother passed away few months after his birth. He was raised by grandfather and later uncle himself. In fact before he attended Prophethood, Muhammad (pbuh) had himself ‘adopted’ a slave Zayed, he was ‘gifted’ by his wife Khadeeza.
Taking care of orphans is an act of piety in Islamic thought. The Quran, the primary source of guidance for Muslims worldwide, repeatedly emphasizes the importance of taking care of orphans and those in need (2:67; 2:147; 4:36). The Quran tells believers that it is a duty to treat orphans with equity (4:127) and a sin to wrong them (93:9). The rejection of orphans is considered a sign of rejection of all moral law, as expressed by Sura Al-Ma’un (107:1-7). In fact, God is depicted as the ultimate caretaker of orphans in the Quran: “Found He you not an orphan and He gave you refuge?” (93:5-6).
According to a Hadith, heavenly rewards await those who take care of orphans. According to Sahih Buhkari (Book 73, Hadith 340), the Prophet noted, “I and the kafil [supporter, one who cares for] of an orphan will be together in heaven like this” and placed his middle and index fingers side by side.
One of the most comprehensive study on adoption – what can be termed as Ijtihad, done by the Muslim Women’s Shura Council in 2011, titled “Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child, conclude that “adoption can be acceptable under Islamic law and its principle objectives, as long as important ethical guidelines are followed.”
However, Muslim scholars who argue against adoptions often bring up specific concerns regarding lineage and naming, inheritance, consanguinity (mahramiyya), and concerns about privacy and boundaries.
The question of lineage is important and if the parentage of a child is know, that must not be hidden from him/her, and should be informed at the opportune time.
The issue of mahram, na-mahram and of marriage with the adopted child has also been put forward while arguing against adoption.
The same study on adoption recommends, “There is no reason to avoid adoption due to varying marriage restrictions. Muslims scholars have historically not considered kafala as a barrier to marriage; however, no ruling recommends marriage between biological and non-biological family members either. Adoptive parents are advised to follow the law of their countries on this matter.” Moreover, children who are breastfed anyway become a mahram.
To be Islamically sound, adoption practices must secure both the best interests of the child and further the public interest (maslaha). There are no verses in the Quran which prohibit guardians from giving money to orphans. Quite the contrary, while blood-relations are considered primary, spending on one’s dependents is highly praised in Islam (2:215).
The Quran recognizes that sharing a life and intermixing are important to the establishment of family ties: “And they ask you about orphans. Say: Making things right for them is better. And if you intermix with them, then they are your brothers/sisters” (2:220).
Clearly it would not be right to say forthright that “adoption is not allowed in Islam,” for there only seems to be some differences on the principles of adoption as we understand in today’s world from the Islamic traditions. There are in fact a variety of adoption practices and laws across the world and many are compatible with Islamic ethics.
Related:
Muslims can adopt child under juvenile justice law: SC
Adoption under Muslim Law – By Dr. Md. Fayaz Khan