INTRODUCTION

Adoption under Islamic law is practised distinctively from adoption in the western or east Asian countries.
Under Islamic culture adoption is allowed and if she or he is an orphan it is even more encourage however ,
the adopted child that does not become natural/true child of the adopted parents as under the case of the Hindu
law (Hindu adoption and maintenance act 1955 section 7 of Hindu adoption and maintenance act). For
instance there is a practice in which the adopted child is named after his or her biological father and not the
adopted father.

In Islam , it is considered a boon to raise an orphan child or to adopt a child and many people even consider it
as a duty. Henceforth many Islamic people believe that it is forbidden under their law to adoptive child but to
raise an another child. This system of adoption in Arabic is known as kafala.

The adopted child may become a , “mahram” to his or her adopted family if he or she if the child is breast-fed
by the adoptive mother before the age of two in other words, the child can be a mahram due to his or her
fosterage relationship with his or her mother.

Under Islamic law as other than natural born child is recognised. Formally however if a person informally
look after a child. Particularly in case of the orphan. The version of holy Quran are the repeat with the bringing
up of the orphan child and himself is a lot about protection and taking care of the orphans in person and their
property.

BACKGROUND
These days, there have been a number of cases where we see child abuse and exploitation. These children
especially are from orphanages or the children who are left unattended. However, this practice is not new and
as been exiting since the older times. To curve this practise adoption was initiated. There are verses in Quran
that promote adoption. It says adopting or taking care of a child earns good deals to people. Nevertheless Allah
bans treating orphans in harsh condition and pub live niches those who mistreat them :

“Have you seen him who denies the religion? He is the one who harshly rebuffs the orphan and does not urge
the feeding of the poor. So woe to those who do prayer, and are forgetful of their prayer, those who show off
and deny help to others. (Surat al-Ma'un: 1-7”

The believers of Islamic law believe in giving compassionate treatment to the orphans as expressed in the
verse above. Their conscience and humanity forces them to take care of these children and raise them as decent
individuals and never expects anything from them in return :

They will ask you about the property of orphans. Say, Managing it in their best interest is best”. If you mix
their property with theirs, then they are your brothers ... (Surat al-baqara : 220)

Prophet Mohd. wants his people to take of these unattended children to the best f their capability with the
keenness in their heart. He wants them to educate the children, teach them good values of the Quran and to
make them regard Prophet with due appreciation and gratefulness. It is because, it is believed that these are
the gateway of achieving salvation. A child develops in his / her early years.

Allah also issues a staunch warning for all of his believers :

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“People who consume the property of orphans wrongfully, consume nothing in their bellies except fire. They
will roast in a searing blaze. (Surat al-Nisa : 10)”

The above verse explains that those who took upon themselves to take care of an orphan or an unattended
child are not supposed to use their personal property for their own requirements, nor should they expect
anything in return. Instead the Allah expects the people to make them as their first priority and treat them
above themselves. If a rich family is adopting a child, then they should behave decently and have a little
conscience to not use the orphans money. However, if the adoptive parent is poor, then he is allowed to use
but in the limits as mentioned in the Quran. Allah says that using the wealth and property of an orphan is a
grave sin :

“Give orphans their property, and do not substitute bad things for good. Doing that is a serious crime. (Surat
an-nisa : 2)”.

The Islamic people are supposed to take care of the orphans or unattended children and their property till the
age of majority. Once they become old and independent, the adoptive parents are supposed to give them their
property. The terms and conditions relating to this are as follows :

Keep a close check on orphans until they reach a marriageable age, then if you perceive that they have a sound
judgement, hand over the property to them. Do not consume it extravagantly and precipitately before they
come of age. Those who are wealthy should abstain from it altogether. Those who are poor should use it
sustainably and correctly. When you hand over their property to them ensure that there are witnesses on their
behalf. Allah suffices a reckoner. (Surat an-Nisa : 6)

RESEARCH OBJECTIVES
The aim of this research paper is to : -

 To expand my knowledge about the ‘Kafala System in Muslim Law’;

 To understand its nature in different muslim countries;
 To critically analyse it;
 To analyse the case of Shabnam Hashmi v. Union of India & Ors. (2014)

CRITICAL ANALYSIS
 Kafala system : Adoption under Muslim law
Under the Muslim legal system the kafala system is the way of delegation of parental authority in which the
‘Kapil’(Adoptive parents) Consents to raise the ‘makfoul’ (Adopted child) until he or she is a major. The word
Takafala in Arabic means to take care of an orphan by fulfilling all of his or her basic needs i.e. food, shelter,
clothing and education.

In the country of Morocco there are two different typed of kafala system namely – judicial kafala and notary
certified kafala. Judicial kafala is one where a child is abandoned and stays in an orphanage. On the other hand
the notary certified kafala is where the blood lineage of the adopted child is known. Both of them can be
revoked at any point of time.

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Earlier the notary certified kafala used to exist in the same family. The newly born child was left to the care
of a sterile relative or a relative who does not have a male child this child’s education was then taken care of
the whole family. In the contemporary times. Since there is a culture of nuclear families, This practice has
significantly undermined. Especially in some parts of morocco this system was practiced by the rich families
to employ young girls as their domestic servants in exchange for money or any sort of property to their parent’s.
The practice that was initially considered as adoption has now been converted into child exploitation and the
abuse. Hence this practice has been condemned a lot.

 Analysis of Kafala System in countries which follow muslim law

The Arab Republic of Egypt : -

It is the most populous country in the North Africa and the Arab World. The majority of its population are
followers of Sunni Islam. In Egypt, the teachings of Islamic Sharia are the main source of statutes and Islam
is the religion of the state.

Kafala – Children consist of a large population in Egypt. However they are regularly abandoned and left
unattended. There are several reasons for the same, some of them being poverty, unwanted pregnancies, rape
and urfi (customary) as well as misfar (temporary) marriages. Hence, under Egyptian law, the following
children are eligible for foster care: illegitimate children, abandoned children, children who lost their parents
and whose location can’t be located or the children whose parents are unable to take care of them due to social
reasons.

The law has created certain guidelines for applicants wishing to take a child into kafalah. For instance, the
applicants must be married for at least five years and be between 25 to 55 years of age, they should have the
same faith as that of a child, furthermore they must be psychologically and physically healthy and have an
income sufficient to provide the family unit, etc.

The Alternative Families Committee (AFCs) gives approval for an unmarried women, divorcee and widow
who is over forty-five years of age to take a child into fosterage. Prospective foster parents must also take
approval from Social Solidarity Directorate.

The foster family will then come under a duty to look after the foster child and raise him/her as a family
member and informing concerned authorities about any change in the child’s social status or circumstances.
The child whose ancestors are unknown may add the name of his/her foster family as his/her own, but in any
case, he/she won’t get any inheritance rights. However, the families are allowed by law to bequest one-third
of their estate to such children. Besides, they may also bestow money or any property upon the child during
their lifetime.

The Egyptian law also gives the benefits to the foster parents during and after the foster period. The family
foster period expires when the boys reach the employable age and the girls get married. However, if the foster
child does not follow the directives, then the foster period can be terminated earlier. Other case could also if
the foster parents doe or the foster child returns to his/her biological parents.

United Arab Emirates

The United Arab Emirates (UAE) is a federation that was previously known by the name of Trucial Coast in
the Persian Gulf that consists of seven Emirates. Its major population are followers of Sunni Islamic religion.
Its official religion is Islam and Islamic (sharia) law is the main source of law. In the year of 2005, the UAE
passed its first codified family law, the Federal Law on Personal Status.

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In 2012, the UAE President Shaikh Khalifa Bin Zayed Al Nahyan launched an act for the acre and protection
of abandoned children. The main objective of this act is to not only secure their health, education and social
integration but also save them from abuse and cruel and harsh treatment. This act has been made in consonance
with the UAE Constitution’s article 16 that talks about the responsibility and duty of the society to save the
abandoned children from an unhealthy environment and provide them with good living conditions where they
can get their all the basic necessities fulfilled.

According to the laws of the UAE, an abandoned child who does not have any parents. Anyone who finds any
such child is under a legal duty to give that child to a police station. The police child will give him/her to a
hospital, where the age of the child will be found and necessary care will be given to the child. After that, a
public prosecutor will assign the child an orphanage involving the Ministry of Children and Ministry of
Interior. From there an applicant can take the child into fosterage.

Conditions for an applicant to take a child into foster care has also been given in the UAE law. These include
– the applicant should be a citizen of Emirates residing in the country, he or she must be married and be of the
age of atleast 25 years old and Muslim. However, single women i.e. unmarried, divorcee, widow can also take
the child into kafala but she should be of 30 years in age. The rule however does not apply to the single men.
They cannot adopt a child. Further the applicant should be physically and mentally sound. Also, they should
not have any criminal record.

Initially there is a trial period of six months after which if the conditions are fine, the fosterage becomes
permanent. The Foster parents have to sign an affidavit that they will take care of the child to the best of their
capability and the child will be brought up in Islamic culture. The law also goes further that the fosterage of a
child is a gift of care and no remuneration will be provided for the same. The foster care time period reaches
an end when a male becomes able to judge and rationalize a situation and is able to earn a livelihood and when
a female marries. The fostering may continue if the child is disabled or if the girls gets divorced or widowed.
In case, either of the foster parents die or end up separated by law, then the fosterage may be ruled out.

Thus, in both of he countries, the rules regarding taking a child ino the ‘kafala system’ is the same. It means
the same, it has the conditions for a couple or a single parent to adopt a child and has the same limit of when
the time period will end.

CASE ANALYSIS : SHABNAM HASHMI V. UNION OF INDIA AND

OTHERS (2014) 4 SCC 1
Shabnam Hashmi is a social activist and a human rights campaigner. She started her social activism
campaigning about adult literacy in 1981. In 2003 she was one of the founders of ANHAD. It’s FCRA license
was cancelled using foreign funding to work against the public interest. She exposed the terror links of
Hindutva forces but also fought for the rights of Batla House encounter suspects who later allegedly joined
ISIS.

Shabnam Hashmi has been nominated for global Nobel Peace Prize in 2005. Hashmi focuses on many social
issues like adoption, gender, justice, democracy, secularism, and women’s political participation, etc.

Facts :

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Adoption needed some specific guidelines. Shabnam Hashmi filed a writ petition under 32 of the Indian
constitution . She requested the honourable court to lay down certain optional guidelines that will enable
people to adopt children irrespective of their raise, caste, religion etc.

Issue :
 Whether or not adopting a child is a fundamental right?
 In case there is any contradiction between personal law and secular law what is going to prevail?
 Weather caste, creed, race and religion affects the adoption procedure?

Arguments:
Petitioners Argument :

 The petitioner requested the honourable court to lay down certain optional guidelines that will enable
the people of India to adopt the children irrespective of the race, caste, religion, creed etc. Furthermore,
she requested the honourable court to issue directions to the respondents i.e. union of India to focus on
children as well the religion as whole.
 It was also mentioned as per the judgements of juvenile justice act 2017, there is an undue delay in
processing of adoption cases are the level of child welfare committees (CWC) , the adoption
recommendation committees(ARCs) as well as the concerned quotes.
 It is also said before the hon’ble court that right to adopt a child is a fundamental right under the
constitution.
 As arguments went on, that courts should direct all the states under JJ Act, 2000.

Respondent’s Argument :

 It is argued that the Muslim law doesn’t make the adopted child at par (equal to) with the biological
child. Under the shariat law Muslims follow the kafala system under which an orphan or an un attended
(adoptive child) is given to a kafil (Adoptive parents ) who will facilitate for the basic needs of the
child but the child will carry the lineage of his or her biological parents only.
 It was also argued that the system of kafala id acknowledged in the United Nations Convention on the
rights of the child and therefore direction should be issued to all the child welfare committees (CWCs)
to other principles of Muslim law before declaring a Muslim child as available for adoption under
section 41(5) of the JJ act 2000.

Judgement :
It is now perhaps relevant to consider the arguments of the respondent i.e. Union of India. Earlier on 15th
May, 2006, The respondent in its counter argument informed the court that the adoptive parents irrespective
of their religion are free to access the provision the act for adopting the child after following the prescribed
format. The progress in the ground as laid before this court of law by the respondent through the ministry of
women and child development may also be taken into account at this level.

The JJ Act 2000, as amended is a legislation that will give the prospective parent an option to adopt an eligible
child by following the procedure prescribed by the Act, CARA guidelines, as notified under the act. A
prospective parent is always at liberty to adopt or may even choose not to do so and, instead, follow what he
understands to be the dictates of the personal law applicable to him or her. This act is a small step in reaching
the objective of article 44 of the Indian Constitution. Although personal beliefs and fails must be respected,
they cannot dictate the operation of the law of an enabling legislation.
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The court opines that the present suit is not appropriate for the time and level where the right to adopt and the
right to be encompassed by article 21 of the constitution.. We barely require to reiterate the already established
principles of Judicial Restraints, that requires the court of law not to deal with cases of constitutional
interpretation unless such exercise is inevitable. Consequently the writ was dismissed in terms of the directions
and observations made above.

Comment :
“No doubt that Adoption is a secular concept. It gives birth to a huge responsibility on adoptive parents and
also it is a big change for adoptive child. In our society religion plays a very big role in each and every aspect.
In adoption, Adoptive Child will follow all the religion, customs, traditions, values of the adoptive family as
a secular concept which is different from the muslim personal law. First of all in case a Hindu Boy being
adopted by a muslim family, he won’t be able to enjoy the secular benefits. It is unfair with that Adoptive
Child who is not able to understand the further consequences of Adoption. It adversely affects the right of that
Adoptive Child. Second a new born baby can be shaped to any form but if a child above the age of 5 years
with Hindu Practices being adopted by a Muslim family then he will himself feel very uncomfortable. It might
be a possibility that the Adoptive family won’t be able to accept that child completely because of his or her
religion which makes it unfair for the child. Therefore, it is important even to consider the religion in adoption
procedure. We should neither neglect the religion of Adoptive Child nor of a Adoptive Parents.”

- By Niyati Acharya

- Edited By Shuvneek Hayer

CONCLUSION
The Muslims believe that if they will take care of an orphan or an unattended child, it will earn them good
deeds and open the way for salvation. The history goes down to the Prophet Mohd. When he got married to
Khadeejah, she gave him a slave known as Zayd Bin Haritha (Zayd, son of Haritha). The prophet took such
great care of Zayd that their relationship changed to a father and son relationship from that of a master servant
relationship.

This gave rise to the Kafala system. In this, there is a common tradition to not change the name of the adopted
child. The adopted child still takes the name of his/her biological father, even after he/she is adopted. Hence,
it cannot exactly be considered as adoption, as the duty of the adoptive parents is to take care of the child till
the time he/she attains the majority and becomes self-dependent. But during the whole time the adopted parents
are not supposed to use the property of the orphan, especially the rich. They are only supposed to take good
care of the child with their whole heart.

“Sallallahu ‘alayhi wa sallam” – “The best house among the muslims is a house in which there is an orphan
who is treated well and the worst house among the muslims is a house in which there is an orphan who is
treated badly”.

BIBLIOGRAPHY

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