“What is the law of adoption under Muslim Law?”
Adoption is forbidden in Islam. It bears no resemblance to the provisions of Hindu law. Only ‘Acknowledgement of Paternity’ is recognised under Muslim law. It is the premise that establishes the child’s validity. When a Muslim recognises a child as his legitimate offspring, that child’s paternity is proved against him. It cannot be used to legitimise a child who has been proven to be illegitimate.
However, in a groundbreaking decision, the Supreme Court recently extended the right of adoption to Muslims as well. The Supreme Court ruled that a person’s right to adopt a child under the Juvenile Justice Act will take precedence over all personal laws and religious rules in the country.
Section 2 of the Juvenile Justice Act of 2002 defines adoption (aa). It gives the adoptive parents and the child all of the rights, advantages, and obligations that come with a regular parent-child relationship.
With this announcement, prospective parents, regardless of their religious identity, will be able to use the Juvenile Justice Act — a secular act – to adopt children after following the authorised procedure.
Under Muslim Law
There are no adoption rules in place for Muslims, thus they must go to court under the Guardians and Wards Act of 1890. Under the aforementioned Act, Muslims can only take a child into foster care. When a child in foster care reaches the age of majority, he is free to cut all ties. Aside from that, such a child is not entitled to inherit under the law.
According to Muslim law, the father has the dominant position. It also distinguishes between custody and guardianship. The father is chosen for guardianship, which mainly refers to the guardianship of property, according to Sunnis, and his executor in his absence. If the father has not named an executor, the guardianship is passed down to the paternal grandfather.
The difference among Shias is that the father is recognised as the sole guardian, but it is the grandfather’s right, not the executor’s, to take over duty following his death. Both schools, however, agree that the father is the only guardian while he is alive. Even after the father’s death, the mother is not recognised as a natural guardian.
There is no question that a father’s claim to property and person applies to both property and person. Even if the mother has custody of the minor child, the father retains the basic right of monitoring and control. The mother, on the other hand, can be named as a testamentary guardian by the father. As a result, even if the mother is not recognised as a natural guardian, there is no reason why she cannot be nominated under the father’s will. According to Islamic law, a mother’s right to custody of minor children (Hizanat) is unalienable. Even her father can’t take it away from her. Only misbehaviour has the potential to deprive the mother of this right.
Adoption under Muslim Law
Adoption is the gift of a boy from his natural parents to his adoptive parents, which allows him to be transplanted from his birth family into a new family. Adoption is forbidden in Islam. There is nothing in Mohammedan law that is comparable to the Hindu concept of adoption.
Recognition of paternity under Muslim law is the closest thing to adoption. The material difference between the two can be expressed as follows: in adoption, the adoptee is the known son of another person, whereas, in acknowledgement, one of the essentials is that the acknowledged is not the known son of another person. However, by gaining approval from the court under the Guardians and Wards Act, an adoption from an orphanage can take place.
Juvenile Justice Act
The Supreme Court held that under the Juvenile Justice (Care and Protection of Children) Act 2000, any person, regardless of faith, can adopt a child, even if the personal laws of that religion prohibit it. The court decision will open the road for the creation of a uniform civil law, allowing thousands of orphaned kids to find stable homes regardless of the religion of their adoptive parents.
Why adoption is prohibited
Adoption is forbidden in Islam because it opens the door to sexual connections between an adopted son and his mother, or an adopted son and a biological daughter. While it is permissible and even encouraged in Islam to provide for orphans, they cannot remain with you as a family unit once they reach puberty. It is not allowed to have physical contact with someone with whom nikah and sexual interactions are possible. As a result, an adopted son cannot live with his mother or biological daughter.
The issue of inheritance
The board’s judgement was sought on a number of other topics, including girls’ inheritance rights. In Islam, a daughter is entitled to half of her brother’s property portion.
While the Law Commission recognises that Islam is one of the few religions that grant women property rights from the outset, it has inquired of the board as to why girls are only entitled to half of their male counterparts' share.
Even after marriage, the daughter remains her father’s duty, therefore she receives a piece of the property. Her major obligation, however, is to her husband, and he is responsible for all of her requirements.
Adoption among some Muslims was recognised by customs prior to the 1937 Shariat Act. As a result, a Muslim never recognises another’s child as his own unless the child is a legitimate direct descendant. When a child is adopted, he or she preserves his or her biological family name (surname) and does not modify his or her name to match the adoptive family’s.
The Hindu Adoptions and Maintenance Act, 1956 is clearly the sole statute that recognises adoption. This Act differs from previous legislation in that it is more liberal. However, there are certain flaws in this Act as well. This Act solely applies to Hindus, and no other faith has a similar rule controlling adoption.
Though the Act attempted to eliminate gender bias, it was unable to accomplish so completely. Adoption should be done with both parents’ agreement and with equal participation from both parents; otherwise, the child will be the only one who suffers. Because children are fragile and completely reliant on the people who make their life decisions, protecting their rights and interests is critical. Adoption not only fulfils the adoptive parents’ yearning for parenting but also provides a family for the child.
There are a large number of children who do not have parents or a home. They will be able to be provided suitable education, relationships, and so on by adopting them. The only thing that must be ensured is that the child is placed in the appropriate hands. This can be verified by looking into the adoptive family’s background, marital status, adoption attitude, financial stability, and so on. A uniform civil code for adoption is required to safeguard the well-being of the children.
In contrast to Hindus, it is clear that the role of custom among Muslims is essentially non-existent. A custom that is in violation of Muslim Personal Law has no legal standing. As a result, an adopted son’s status is no better than that of a stranger, even though it is fully established by tradition because he does not become ipso facto heir of his deceased adoptive father. Recognizing the importance of adoption, particularly in the case of Childless Couples, the usually adopted son needs a better deal under Muslim Personal Law, which can only be mended and enhanced through statutory action.