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Children adopted by Muslims on a par with biological child: SC

Rejects plea for directions to follow Islamic law before declaring a Muslim child for adoption.

The court turned down a plea for declaring right of a child to be adopted and right of a parent to adopt a fundamental right under the Constitution. The court turned down a plea for declaring right of a child to be adopted and right of a parent to adopt a fundamental right under the Constitution.

Emphasising that personal beliefs and faiths cannot negate operation of a law, the Supreme Court Wednesday dismissed a plea by the All India Muslim Personal Law Board (AIMPLB) to hold that children adopted by Muslims will not be on a par with a biological child.

A Bench led by CJI P Sathasivam said people, irrespective of their religion, caste and creed, were free to adopt children under the provisions of the Juvenile Justice Act and this enabling provision “cannot be stultified by principles of personal law”.

The Bench, also comprising Justices Ranjan Gogoi and S K Singh, noted that the 2006 amendments in the Act was a “small step” towards the concept of Uniform Civil Code and that it was applicable to only those who opted to exercise the enabling provisions to adopt a child.

“To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution (Uniform Civil Code). Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute,” it said.

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The court underscored that the Act did not mandate any compulsion to use the Act for adopting children and that “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 was responding to a demand by the AIMPLB to issue directions to all Child Welfare Committees to follow the principles of Islamic Law before declaring a Muslim child available for adoption.

Asserting that Islamic law did not recognise an adopted child to be on a par with a biological child, the Board said it professed what is known as the “Kafala” system. Under this, a  child is placed under a ‘Kafil’ who provides for the well-being of the child, including financial support. The Board added that a ‘Kafil’ was thus legally allowed to take care of the child, although the child remained the true descendant of his biological parents and not that of the “adoptive” parents.


The Bench however refused to issue such direction. “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.”

On the issue of the Uniform Civil Code, the court said this could become a reality only “by the collective decision of the generation(s) to come, to sink conflicting faiths and beliefs that are still active as on date”.
The court also turned down a plea for declaring right of a child to be adopted and right of a parent to adopt a fundamental right under the Constitution, saying that such order cannot be passed at this stage in view of conflicting practices and beliefs.

The Bench was hearing petitions filed by social activist Shabnam Hashmi, seeking court’s direction to frame uniform guidelines for adoption of children irrespective of their religions.


During the pendency of the petition, the Centre amended the Act in 2006 and the responsibility of giving in adoption was cast upon the court and Central Adoption Resource Agency (CARA).

According to government data, the number of reported adoptions in the country from January 2013 to September 2013 was 19,884 out of which 1,712 cases are of inter-country adoption.

First published on: 20-02-2014 at 03:35:57 am
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