CHAPTER-4

A COMPARATIVE STUDY ON HINDU LAW OF ADOPTION

WITH MUSLIM, CHRISTIAN & PARSI LAW OF ADOPTION IN

INDIA

4.1 Introduction The people of India belong to different religions and faiths.1 They

are governed by different personal laws which deal with their own personal matters. In

India there are two law on the basis of the application to the people and the territory;

personal law and territorial law. Personal law deals with the family matters pertaining to

the matters related to marriage, adoption, succession etc. of a particular community. In

India different religions like Hindu, Muslim, Christian and Parsi ect. are governed by

their own respective personal laws.2 The Hindu and Muslim personal laws are divine or

natural law not made by any other authority. This is because Hindu law is emanated

from the four Vedas and eighteen Upanishads which contains the revelation of God.

Again the Quran which is the main foundation of Muslim Law contains the revelation

communicated from the God to Prophet Mohammed. The personal laws of the different

communities are different from each other. For example Muslim personal law permits

polygamy which is completely prohibited by the Hindu law, again Hindu personal law

permits the practice of adoption of a child, which is not expressly permitted by the

Muslim, Christian and Parsi law.

The law of adoption of child is absolutely recognised by the Hindu law. The

Hindu law of adoption is not a new concept but the custom and practice of adoption has

1
www.archive.india.go accessed on 14-06-2017 at 4:57 pm
2
www.webindia assessed on 14-06-2017 at 4:57 pm

131
been prevailed from the ancient Hindu text of adoption. In the ancient Hindu law a son

was very much required because through a son or a son‟s son or a son‟s son‟s son the

family can continue in the world and he delivers the father from torment through the

funeral obsequies. So a sonless person can take a son of another according to the ancient

Hindu law. This practice of the ancient Hindu Law of adoption is now recognised with

some modifications over the ancient Hindu law of adoption to meet the principles of

equity enshrined in the Constitution of India by enacting the Hindu Adoption and

Maintenance Act, 1956. The Hindu Adoption and Maintenance Act, 1956 is the only

Act which provides law relating to adoption, but this Act is applicable only among the

Hindu. In India for other religions except Hindu there is no particular legislation for law

relating to adoption of child.

4.2 Adoption under Muslim Personal Law

The institution of adoption is not recognized by the Muslim Law as a mode of

filiation. Muslim has recognised only natural born child or biological child known as

walad, who is born or begotten to a Muslim couple. No other form of son ship is

recognised by Muslim Law. Unlike Hindu Law the various kinds of sons other than

sons by birth are wholly unknown to Muslim Law.3 Muslim Law does not recognize the

law of adoption of a son or daughter of another. Muslim law does not recognize the

effect of an adoption that after adoption the adoptive child shall be regarded as a natural

born child of the adopted family. In Mohammed Allahabad Khan vs. Mohammad Ismail

3 rd
Mohmood Tahir, „The Muslim Law of India’, 3 edi. (2002) (New version) Lexis Nexis Butter

Worths, (New Delhi) p.137

132
Khan 4 it was held that the Muslim law does not recognises the law of adoption of child

as recognised by the Hindu law. Justice Mahmood said that Muslim Law does not

recognize the validity of any mode of filiation where the parentage of the person

adopted is known to belong to a person other than the adopting father and an adopted

child has no right in the estate of his or her adoptive parents.5

Under classical Islamic Law the position is as follows ----

I. When a Muslim takes custody of a child of another as his own, no

legal relation takes place between the child and the person who has

taken the child in custody. The child cannot legally entitle any rights

from him as entitled by his natural born child.

II. The child is not restricted to marry with the person on the ground of

consanguinity, fosterage, affinity as there is no relation between the

child and person.

III. It will not make them each other‟s legal heirs. As no legal relation

takes place between the child and the parent, the child is not regarded

as a legal heir and he cannot entitled the right of inheritance after the

death of the person.

According to the opinions of various Muslim jurists, the law of adoption is

forbidden by Islamic law but at the same time Islamic Law permits another practice

which is almost like the practice of adoption of a child , this system is known as kafala,

it is a kind of delegation of parental authority by which the kafit (adoptive parent) agree

4
(1888)I.L.R. 10 All 259, 340

5 th
Qureshi M.A., „Muslim Law’, 4 Edi, (2012) , Central Law Publication, p.261

133
to support the adopted child.6 The verb kafala in Arabic means to take care of an orphan

by providing all his or her basic need like footing, clothing, education .7 Kafala is

defined as the commitment to voluntary take care of the maintenance of education and

of the protection of a minor, the same way a parent would do for a child. 8 Kafala does

not create a legal relationship between the child who is taken in charge and the person

holding the right.9 Kafala deals with the guardian-ward relationship between the child

and the person, but it does not create any legal relation between them. In kafala, the

biological relation of the child with his natural family does not terminate, the child after

taking also regarded as the child of his natural family. He is not entitled the membership

in the family of the person who has taken the guardianship of the child.

So the kafala is completely different from general rule of adoption where all the

relations are terminated with the natural family and the child is entitled all rights in the

adopted family. According to Islam, kafala is a pious or religious institution as it helps

the orphan or helpless child by providing minimum facilities to them to survive in the

world and in kafala who sponsors an orphan is rewarded by the God i.e. Allah.

Adoption of an orphan or a helpless child was a very popular and moral practice

amongst pre-Islamic Arabs. After adoption an orphan or helpless child who is adopted,

they used to consider adopted child as their own. The child is entitled the name of the

adopter and the right to inheritance also entitled by him. However a tabanni (Arabic

equivalent to adoption) cannot suppressed or abrogate the claim of kith and kin as

prescribed by the Quran i.e. an adopted child cannot entitled to inherent the property of

the adoptive parent. An adopted child is not recognized as a biological child of the

6
Eng.babelmed.net
7
ibid
8
www.wisemuslimwomen.org
9
adoption.gouv.qc.ca

134
adopter under the Muslim law. He is entitled to love, affection, home, security and

every consideration10

The Arabs in those days used to adopt other‟s sons but the object of adoption

was not that of the ancient Hindu Law of Adoption i.e. religious and secular.11 But the

main object of adoption in those days was to strengthen their man power for wars with

their enemies.12 According to Tyabji, „it must have been a source in those unsettled

times, to have sons real or adopted able to bear arms……….‟13 During war, famine or

economic - crises a child in the Islamic period is taken by the guardian---

“Did hi not find you an orphan and give you shelter? And he found you wandering and

He gave you guidance. And He found you in need and madde you independent.

Therefore treat not the orphan with harshness nor drive away a petitioner (unheard).

But the bounly of the Lord rehearse and proclaim”. (Quran 93:6---11)14

Different Muslim jurists have different opinions on the law of adoption, some of

them have the opinion that the law of adoption is unknown to Muslim Law and

according to the view of other Jurists that where custom is given priority by legislation

over general Mohammedan Law, then the custom will prevail over that law. Adoption

shall not confer upon any person the status of a child except in the cases where [subject

10
Barooah Pramila Pandit, ‘Handbook on Child with Historical Background‟, edn. (1999), Concept
Publishing Co., New Delhi, P.59

11 th
Sinha R.K., „Muslim Law (As applied in India)’ 6 Edition, (2006) Central Law Agency P.
117

12
ibid

13 th
Tyabji Faiz Badruddin, „The Personal Law of Muslim in India and Pakistan „, 4 edi. (1968),
N.M. Tripathi, Bombay

14
https://www.thoughtco.com visited at 2:30 pm on 8.4.2017

135
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.

4.2.1 Adoption under the Holy Quran

According to some Muslim jurists like Ameer Ali, Abdur Rahman the Holy

Quran does not permit a Muslim to adopt a child of another.15 They think that the Holy

Quran prohibits adoption but the impression that adoption is not permissible or adoption

is not known to Muslim Law is totally based on improper application of Shariate Law. 16

Quran does not confer the legal relationship between a child and his or her adoptive

family. The relation between the child and his biological parent does not sever. Again

the adopted parents are not regarded as the biological parent of the adopted child; there

is no mutual right to inheritance between the adopted child and the adopter.

„…….. nor has He made your adopted sons your (biological) 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 (the names of) their fathers; that is juster in the sight of Allah.

But if you know not their father‟s (names, call them) your brothers in faith, or your

trustees. But there is no blame on you if you make a mistake therein. (What count is) the

intention of your hearts. And Allah is Off-Retusrning, Most Merciful‟.(Quran 33.4—5)17

In the Pre-Islamic period the custom of adoption was prevailed which was based

on a sense of comrade in arms.18 The system of adoption seems to have received some

15
‘Adoption under Muslim Law’- by Dr. Md. Fayaz Khan, twocircles.net/llegal assessed on 14-06-17 at
10:24 pm
16
‘Adoption amongst Mohammedan Law-whether permissible in law’ by A. K. Bhandari, ILI Journal Vol.
47 No1 Jan-March 2005 p. 110---114
17
Supra note 14
18
Supra note 15

136
recognition by the adoption of Zaid.19 Even the Prophet Mohammed himself took Zaid,

the son of Haris in adoption20 who was almost ten years younger than the Prophet. Zaid

himself wanted to stay in the house of the Prophet Mohhamed and denied to return his

father‟s house. Zaid was marrried to Zainab bint Jahsh, with whom Prophet Mohammed

also married after giving divorced to Zaid. Prophet Mohahamed‟s marriage with Zainab

occasioned much scandal among his contemporaries.21 During the time when this event

took place, the Arabs used to consider their children in the same light as real children of

their body.22 In Sura [Verse] XXXIII (Medinah) of the Quran in the chapter on

confederates, Prophet Mohammed forbade this practice and thus legalized his marriage

with Zainab, the divorced wife of his freedman Zaid who was also his adopted son.23

This in only a precedent which made it clear that in case of adoption there is no

restriction on marriage. A Muslim cannot marry the divorced wife of his son, but he can

marry the divorced wife of his adopted son. The custom of adoption remained prevalent

amongst Muslims. However it is on the basis of verse in the Holy Quran it has been

19
Journal of the Indian Law Institute Vol. 47 No1 Jan-March 2005 P.110

20
Holy Quran (S8A72) “Those who believed and emigrated and fought for the rthose who gave

(them) asylum? And aid,- these are (all) friends and protectors, one of another. As to those who

believed but did not emigrate ye owe no duty of protection to them”

21
Ali Abdullah Yusuf, ‘The Holy Quran, English translation of the meaning and commentary,‟
revised and edited by the Presidency of Islamic Researchers, IFTA, Call and Guidance, King
Fahd Holy Quran Printing Complex 123

22 nd
Bajpai Asha, „Child Rights in India: Law, Policy & Practice,‟ 2 edition, Oxford India

Paperbacks, (2006) p.38

23
ibid

137
held by the jurists that the Prophet himself disapproved adoption.24 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 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 father: that is just in the sight of Allah but

If ye know nor there father‟s names (then they are) your brother‟s 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 hearths: and Allah is oft-forgiving most merciful . The Prophet is

closer to the Believer than their own selve and his wives are their mother‟s Blood

relations among each other have closer personalities, in the Book of Allah than (the

brother hood of ) believers and Muhajirs.25

It is clear from above that the Holy Quran in nowhere prohibited the practice of

adoption as well as permitted a Muslim to adopt a child. According to Quran a childless

Muslim can adopt a child of another but he will not be treated as their natural child. The

main intention of the Quran is to eradicate the false relationship to remove the true

blood relation. If the above verse is interpreted to mean that the Prophet has prohibited

adoption it cannot be assumed that what is prohibited by the Holy Quran can be

permissible by customs and usage, so now it can be said that the Quran in nowhere

prohibits adoption.26

24
Supra note 5, P. 261
25
Mushat Al Madirah: „ holy Quran’, An Babawiyah edi. By Presidency of Islamic Researchers

IFTA P 1144,

26
Supra Note 6 p.112

138
 There are certain Quranic injunctions relating to orphans27 In Islam adoption

would be permissible only if- 28

I. The true identity of the child is disclosed to him where it is known.29

II. The rights of inheritance of the natural heirs are not disturbed.30

Again to provide security to the adopted child one of the following methods or a

combination of them could be adopted: 31

I. Provide Kafala or maintenance for the child

II. Make a gift in favour of the child [ under Muslim Law a testamentary

disposition is limited to one-third of the net estate]

III. Bequeath up to one third of the property in his favour.

4.2.2 Adoption under the Muslim Custom

The law of adoption of a child of another was recognised in the pre-Islamic

period by some custom either under customary law or under a special statute

recognizing such as custom e.g. the Oath Estates Act, 1869.32 A custom of adoption

could be enforced in preference to the contrary rules of the personal law.33 In their

application to the Muslims all these laws are now controlled by Section 3 of the Muslim

27
Majid K.A. (Compiled), „Quranic Injunctions Do and Do Not:The Code of Salvation, extracts
from the translation of A. Yusuf Ali,‟ Do and Don‟t Publisher, (1990), North Nizamabad,
Karanchi, Pakistan, p. 21

28
Supra note 22 , p.38

29
ibid
30
ibid

31
Supra note 22, p.38

32
Abdul Halim Khan vs. Saadat Ali Khan AIR 1932 PC 137
33
Supra note 1, p.138

139
Personal Law (Shariat) Act, 1937.34 The custom of adoption amongst Mahavatan

community of Mohammedan in Rajasthan has the similarities with the adoption system

amongst Hindu.

The Rajasthan High Court in various cases has declared the existence of the

system of adoption among Mohammedans under the customary law and a Muslim who

alleges that by custom he is subject of adoption must prove it. 35 In Kashmir, the Muslim

has the custom to adopt a child of another called pisar-e-parvarda.36

Before the Shariat Act, 1937 in accordance with the custom prevailed at that

time which recognised the practice of adoption, a Muslim could adopt another‟s child as

his own and the child is considered to be the direct descendent by legitimate means. If

an adoption takes place then an adopted child will retain his or her own biological

family name and does not change his or her name to match that of the adoptive family.37

Mohammedan law has recognized the law of adoption only when it is recognised by a

custom. In Bai Machhai Vs. Bai Hirabai38 the Bombay High Court has held that the

burden of proving that the custom of adoption has also been retained lies on those who

asserts. Again the same High Court in Ayubshah Vs. Babalaal39 stated that although a

34
Moulvi Mohammad vs. Mohaboob Begum AIR 1984 Mad.7

35
Nanoo Khan vs. Mst. Sugani1974 WLS (UC)8 & Mst. Bibi vs. Syad Ali SB SA Mo 132/1990

36
Supra note 3, p.138

37
www.lawtescher.net date:16.02.15 at 10 a.m.
38
. (1911)35 Bom 264

39
(1938)Bom 150.39 Bom L.R. 1324,173 I.C. 201 (‟38) A.B.(1)

140
Mohammedan may be entitled under the law prevailing to adopt a son, such a son

cannot succeed to the property of his adoptive father in India in the absence of evidence

establishing a custom to that effect in India.40

There are some local enactments which permits a Muslim to adopt. For example,

the Oath Estate Act 1869 which provided under Section 29 for adoption of a child by

Muslim „Talukdar‟.41 Section 29 of the Oath Estate Act permits a Mulim Talukdar to

adopt a son of another to him.42

A Hindu who converts to Muslim religion cannot retain the right to take and

give a child of another. But the Caste Disabilities Removal Act, 1850 did not prohibit a

Hindu after conversion to Muslim to adopt a child. When a Hindu converts to

Mohammedanism he retains the right of succession but he does not carry with him the

Hindu custom of adoption.

4.2.3 The Muslim Personal Law (Shariat) Application Act, 1939 and the law of

adoption

The Muslim Personal Law (Shariat) Application Act, 1939 was promulgated to

make provision for the application of Muslim Personal Law (Shariat) to Muslim.43 The

40 th
M Hidayatullah & Arshad Hidayatullah, ‘Mulla’s Principles of Mohammedan Law’, 19 Edi,

(2007), Lexis Nexis Butterworths Wadhwa Nagpur, p. 284

41
Abdul Halim Khan vs. Saadit Ali Khan AIR (1932) 59 IA 202,7 Luck. 194, 136 I.C. 745 (32)
A.Pc 137
42
Section 29 of the Oath Estate Act:
Mohammadan Taluqdars and Grantee empowered to adopt-‘Every Mohammadan Taluqdar, Grantee,
heir or legatee and every widow of a Mohammadan Taliuqdar or Grantee, heir or legatee, with the
consent in writing of her deceased husband, shall, for the purpose of this Act, have power to adopt a
son whenever, if he or she were a Hindu, he or she might adopt a son.
Such power shall be exercised only by writing executed and attested in manner required by
section nineteen in case of a will and registered ’.
43
. Supra note 5 p. 263

141
main aim of the Shariat Act 1937 is to restore the law of Islam to all Muslim

communities who are residing in India and abolish all the custom which have no

conformity with the Shariat Act or contrary to the provision of the Shariat. The Act is

applicable to every Muslim irrespective of the Schools. All the Muslim people

irrespective of the schools of Muslim Law are governed by the Shariat Act. Section 2 of

the said Act has abrogated customs and usage in so far as they had displaced the rules of

Muslim Law.44

Section 2 of the Act provides that “Notwithstanding any custom or usage to the

contrary , in all question (save question 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 like marriage,

dissolution of marriage including Talaq, Illa, Zihar, Lian, Khula and Mubarat,

maintenance, dower , guardianship, gift , trust properties and waqfs (other than charities

and charitable and religious endowments) the rule of decision in case where the parties

are Muslim shall be the Muslim Personal Law (Shariat)”.45

All the subjects are mentioned in Section 2 on which the Shariat Law shall be

applicable. Section 2 of the Act expressly declares the subjects in which Muslim

personal law (Shariat) Application Act 1939 shall be applied notwithstanding any

custom or usage to the contrary. The law regarding adoption is excluded by the

aforesaid provision of the Act. In Puthiya Purahil Abdurahiman Kannavan vs. Thayath

Kanchuntavida Avoomma46 and in Maulvi Mohd Vs. Mahboob Begam47 it was held

44
Ahmed Aqil, ‘Mohammedan Law‟,, twentieth edi., ,(2001), Central Law Agency, P.28

45
Supra note 37
46
AIR (1956) Mad. 244

142
that the non-mention of other subject 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 for the parties to rely on such a valid custom, if there is one.48

In Mohd Yunus vs. Syed Unnisa49 the Supreme Court has laid down an

important rule regarding the construction of Section 2 of the Act. 50 This enactment was

regarded as the mandates to the Court in respect of the subjects enumerated in Section 2

of the Act and this Act must be applied to all suits and proceedings pending even in

appeals on the date when the Act became law.

Again Section 3 provides that any person who satisfies the prescribed authority

that— he is a Muslim, he is competent to contract within the meaning of Section 11 of

the Indian contract Act 1872 and he is a resident of India may by declaration in the

prescribed form and files before the prescribed authority declare that he desires to

obtain the benefit of the Act and thereafter the provisions of Section 2 shall apply to the

person declared as such and all his minor children and their descendants as if in addition

to the matter enumerated „adoption‟, „will‟ and „legacies‟ were also specified.51

So adoption by a Muslim is possible only subject to Section 3 of the Shariat Act.

Section 3 of the Act lays down that the matter related to adoption, will and legacies

would be regulated by customary laws unless a Muslim expressly declares that in these

matters the rule of law should be the Muslim Law.52 Where there is a custom of

47
AIR (1984) Mad.7c
48
Supra note 37
49
AIR (1961) S.C. 809
50
Supra note 37
51
Supra note 44 p 92-93
52
. Supra note 11 p 118

143
adoption and when it can be proved then no declaration to be made under Section 3 of

the Act by anyone concerned so as to rule out the existence of the custom of adoption.

Where the Shariat Act is not applicable to a particular territory, like in Jammu

and Kashmir where the Shariat Act is not applicable, so the Muslim in Jammu and

Kashmir is regulated by the customary law. So a Muslim in Jammu and Kashmir can

adopt a child under the customary law of Jammu and Kashmir.53

4.2.4 Acknowledgement and adoption

In Muslim Law there is no institution of adoption on a child of another. But

Muslim Law recognizes the institution of acknowledgement or ikrar, i.e. the nearest

approach to that of the adoption, which is the recognition of paternity or the maternity

of a child. The Muslim Law recognises only biological child, not an adopted child. A

child is regarded as a Legitimate when it is proved by showing that the child‟s parents

had been lawfully married to each other at the time of the birth of the child.

Acknowledgement may be made either expressly or impliedly, it may be made

expressly by the father similarly a father can impliedly made acknowledgement. 54

Under Muslim Law proof of an acknowledgement of paternity is taken as presumptive

proof of the marriage. The onus of disproving the marriage would on proof of the

acknowledgement of paternity by the father, shift to the party who is disputing the

53
Khatji Vs. Abdul Razak AIR (1977) J&K 44
54
Supra note 5, p. 236

144
legitimacy of the child.55 In Mohammad Amin vs. Vakil Ahmed56 the Supreme Court

has held that an acknowledgement of paternity can be either expressed or implied in the

conduct of the person concerned. The doctrine of acknowledgement applied only in

cases of uncertainty as to legitimacy and in such cases acknowledgement has its effect

but that effect always proceeds up on the assumption of a lawful union between the

parents of the acknowledged child.57 For a valid acknowledgement it must be presumed

that the mother and father were lawfully married, it is not sufficient that they are the

husband and wife. For a valid acknowledgement it is not necessary that the parents of

the child may be known to others as husband and wife. The acknowledgement of the

child is presumed that parties are husband and wife and they were lawfully married. The

acknowledgement must be definite and the child must be acknowledged to be the child

of his body. An acknowledgement once made cannot be revoked.

Acknowledgement under the Muslim Law is similar to adoption but there are

some fundamental differences between them. They are—

1. In adoption there is a gift of the child by the natural parents to the adoptive

parent but acknowledgement is not possible when the parents of the child

55
Subbarao G.C. Venkata, „Family Law in India’, edi.(1982) C. Subbbiah Chelly & Co Big Street

Triplican – Madras, , p.345

56
AIR (1952) SC 358

57
Supra note 44, p. 193

145
 are known.58 In other word in adoption child of someone else is taken in

adoption, but acknowledgement is in respect of one‟s own child.59

2. In adoption the adopted son must be a son of another person, but

acknowledgement proceeds on the basis of actual paternity.

3. In adoption there is no relationship between the member of biological child

and the adoptive father. But acknowledgement of parentage proceeds upon

the theory of actual descent of the acknowledged child whether male or

female from the father who acknowledges.60

4. The main aim of adoption may be religious and spiritual, but in

acknowledgement the purpose is to remove doubts about the paternity of

the child.

Besides these differences there are some similarities between the adoption and

acknowledgement. They are -

(1) After completion of adoption and acknowledgement both adoption and

acknowledgement cannot be revoked.

(2) In both adoption and acknowledgement mutual right of the inheritance is

created and also the right to maintenance is arises.

4.2.5 Muslim Law of Adoption and the Supreme Court verdicts on adoption

There is no legislation under which a Muslim can adopt a child of another in

India. Even their personal law also does not permit them to adopt a child of another. In

respect of the adoption of a child by a Muslim the verdict given by the Supreme Court

58
Supra note 11, p.117

59 st
Myneni S.R., ‘Muslim Law and other Personal Law(Family Law-II)’ 1 edi., Asia Law House, p.265
60
Muhammad Allahdad vs. Muhammad Ismail (1888) 10 All 289(FB)]

146
in Shabnam Hashmi case is the watershed decision. Here eight years old writ was filed

by the petitioner, praying for giving guidelines under which a person can adopt a child

of another irrespective of religion, caste, creed etc. In this case the Supreme Court has

held that a Muslim can adopt a child of another under the provision of the Juvenile

Justice (Care and Protection) Act 2000.

But the PIL was opposed by the All India Muslim Personal Law Board.61

According to the Board, the Muslim Law does not recognise the law of adoption, the

Islamic law professes kafala system under which the child is placed under kafil who

provides for the well being of the child including financial support and that is legally all

parent allowed to take care of the child though the child remains the descendant of his

biological parents and not of adoptive.62

Illustration III: Mr X, a Muslim adopted a daughter from a hospital. The daughter was

abandoned by the natural parent. Mr. and Mrs. X when comes to know it from the

Doctor, went to the hospital and take the child in adoption in 2010, then they

introduced the adopted daughter as their own natural daughter.

Illustration IV: A Muslim childless couple has taken a male child from a female who

was a victim of the rape in 2012. During her pregnancy Mr. X kept her in their home

and took care of the pregnant female. After giving birth to a male child she has handed

over him to the Muslim couple. But they has not disclosed the truth of this fact, their

family members were also unknown to it. They have treated the child as their own

natural child.

61
m.timeof india.com visited at10:02 in 6.4.2017
62
ibid

147
 From these illustrations it can be said that a Muslim who is prohibited to adopt a

child in accordance with their personal law, they also want to take a child of another as

their own child when they have no child. In these cases the researcher observed that

though the Muslim Personal Law does not expressly permit a Muslim to adopt a child of

another, they have adopted a child before 2014 i.e. before the judgement of the Supreme

Court in Shabnam Hussain case. During that time they only took the child from the

parent without any formalities because their personal law does not permit to adopt a

child of another. But now after the landmark judgement of the Supreme Court in 2014 a

Muslim has the same right to adopt and to adopt they have to proceed under the

Juvenile Justice (Care and Protection) Act 2000. This is only legislation which permits a

Muslim to adopt. From the social workers relating to child welfare it is come to know

that a Hindu as well as Muslim is adopting a child of another.

4.3 Adoption under Christian Law

The Christian Law does not expressly prohibit the law of adoption , there are

several instances of adoption in Bible. God is a father who graciously adopts believers

in Christ into his spiritual family and grants them all the privileges of heir ship.63

The Cannon Law also permits to take a child in adoption. The reference to

adoption in the Cannon Law of the Christians is in C-689 C3 which says that an adopted

child can be baptized in the Church and C-110 says that children who are adopted in

63
www.biblestudy tools.com]

148
accordance with in civil laws are to be considered the children of that person or persons

who have adopted them.64

There is no statute relating to Christian Law of adoption, but there are some

customary law which permits a Christian to adopt. For example custom among Syria

Christian of Kerala permits to adopt. Under this custom a sonless Christian can adopt

the husband of his daughter as his own natural son. In Punjab also there is a custom

which permit the custom to adopt a child of another. The Lahore High Court in Soham

Lal vs. A.Z. Makuin65 has held that in the case of Punjabi convert Christian it may be

possible to prove the customary law of adoption applicable to them. Again the same

High Court held that the object of adoption is not religion but secular by which a

sonless owner of land can nominate a person to succeed him as his heir. Again if he has

more than one wife then the husband of the elder daughter becomes the adopted son of

his father-in-law. After adoption of the son-in-law by father-in-law, he generally resides

with his wife in her house along with his father-in-law and mother-in-law and after the

death of the father-in-law all the property left by him are entitled by the son-in-law as an

adopted son.

The Christian customary Law to adopt a child is recognised by the Judiciry first

time in Philip Alfred Malvin vs. Gonsalves,66 in this case the Kerela High Court held

that the Christian Law does not prohibit adoption and also the Cannon law. Again it was

held that the main object of adoption is secular to give some relief to the sonless person

after his death he can entitled the property left by his death. According to the Court, the

64
Supra note 22, p.39
65
AIR 1929 Lahore 230

66
AIR 1999 Ker. 187

149
right to adopt is inherent in the right to life guaranteed under Article 21 of the
67
Constitution of India. It remarked—the right of a couple to adopt a son is a

constitutional right guaranteed under Article 21 of the Constitution, the right to life

includes those things which make life meaningful .68

But since there is no law on adoption for Christian in India, they have to resort

to the Guardian and Wards Act69 and Section 41 of the Juvenile Justice Care and

Protection Act, 2015 read with the Guidelines and Rules issued by various State

Governments.

4.4 Adoption under Parsi Law

The Law of the ancient Zoroastrians are in the twenty one nasks or Holy books

that were part of the Avesta.70 For the Parsi a son is very much important than a

daughter because according to them a son is the economic asset of the family and the

family can continue only through a son. According to them Childless was the calamity

for the couple, so a sonless couple can adopt the child. The parent with a child has more

value than a parent without a child. The aim of adoption was purely religious, to deliver

the father to the next world. Sons were more important than daughter as they were

permanent economic asset and also continue the family line and perpetuated the father‟s

67
ibid
68 th
Kusum, ‘Family Law-l’, 4 edn, (2015), Lexis Nexis, p. 372

69
. supra note 22, p. 39

70
Bulsara Sohrab Jamsshedjee, „The Laws of the Ancient Persians as in found in the ‘Mitikan E
Hazar Datastan’ or the Digest of A Thousand Points of Law’ ,vol-II,( 1937) Housing
Ankleshwaria, Mumbai IX: p.38

150
name. The main aim of adoption was purely religious i.e. to deliver the father to the

next world. A son could be adopted when a man had no son born to him.71

According to the ancient Persian as in lays down in the Digest of a thousand

points of law a father has some natural duties toward his child, which he cannot deny,

which allows the father to give his only child in adoption. The father could appoint a

guardian of his minor child; he could also withdraw such guardianship under some

circumstances whenever he found a proper reason for doing so. 72 This is known as

partial adoption. Here adoption was made not because of that the parents were issueless,

but because of that the parent having legitimate child was also allow giving the child in

adoption.

In India there is no legislation for the adoption of child by Parsi in India.73

Parses today recognises the custom of adoption in the form of palukaputra and

dharamaputra.74 The palukaputra form of adoption is purely contractual and is

determined at the opinion of either party. Under this custom, the widow of a childless

Parsi can adopt a child on the fourth day of her husband‟s death, simply for the purpose

of performing certain annual religious ceremonies.75 A son or daughter can be adopted

and created as their own and can be given certain property i.e. right of inheritance or of

71
Manekaji Nussurwanji Dhall, Zoroastrian Civilisation, 1992, p.38

72
Supra note 22 p.57

73
Supra note 22, p.37

74
. ibid

75
Supra note 68, p. 371

151
performing religious ceremonies.76 Nowadays in India a childless person of a Parsi

community adopts a child from another family not to attain the salvation after his death

or to continue his family tie after his death. Because now most of the person from the

Persi community believes that any person is sent to heaven or hell after his death not

depends on that he must have a son but on his good deeds and bad deeds in his life.

4.5 Uniform Civil Code on the Law of Adoption

A Uniform Civil Code is a term generally used to refer to the proposal to replace

the personal law based on scriptures and practices of each major religious community in

India with a common set governing every citizen.77 The Uniform Civil Code intends to

provide a common code on the personal matters like marriage, succession, maintenance

of various religions which can be applied to all the citizen of India.

Article 44 of the Constitution of India requires the state to secure of a Uniform

Civil Code for all the people throughout India which would help the cause of national

integrity.78 The demand for a Uniform Civil Code essentially means unifying all the

personal laws to have one set of secular law, dealing with these aspects that will apply

to all citizen of India irrespective of the community they belong to.79

A Bill on Uniform Civil Code was introduced by the Parliament but due to

opposition of the Muslim community it was failed. In 1972 Adoption of Children Bill

76
Diwan Paras, „Indian Personal Law II, Law of Adoption, Minority and Guardianship Custody,‟
nd
2 Edi. (1993), Wadhwa and Co. Allahabad, India, p.4

77
Intra 2017 sbsmun.in assessed on 16.08.2017 at 12:50 pm
78
Article 44 of the Constitution of India
79
https://www.slideshare.net assessed on 06.08.2017 at 2 pm

152
was introduced by the Central Government in Rajya Sabha, because of the opposition

made by Muslim to an uniform law on adoption applicable to all community, it was also

dropped.

According to them Muslim Law does not recognize the law of adoption of child

through which legal relation creates between the adopted child and the adoptive parents.

So they are permitted to take a child in custody under the Guardian and Wards Act

which only creates guardian and wards relationship between the child and the adoptive

parent, such relationship subsists until the child has completed the age of twenty one

years of age unlike the Hindu Adoption and Maintenance Act.

The root of Hindu adoption was evolved from the period of Smriti, when there

was the need of a son, they take a son of other as a secondary or dattaka son. So the

theme of early Hindu law of adoption has evolved with the growth of the concept of son

ship. In Smriti period the law of adoption was religious not secular. After adoption the

child was regarded as the natural son of the adopted parent. The custom to adopt a child

is now codified by the Hindu Adoption and Maintenance Act, 1956.

Under Muslim, Christian and Parsi there is no such personal law which provides

the provision for adoption. According to these personal laws a person cannot take a

child of another.

But the Quran, the foundation of Muslim Law in nowhere prohibits or permits a

Muslim to adopt a child of another. Even during the pre-Islamic period there were

various examples of adoption of child by Muslim. Many non-Hindus want to adopt a

child of another. Again it will be unfair for the childless parents if they are not permitted

to adopt a child.

153
 The Supreme Court in Sarla Mudgal vs. Union of India80 has emphasized that

there is no necessary relation between religion and personal law in a civilised society.81

Again Article 25 and 26 provides freedom of religion and conscience. Article 25 gives

protection to the practices which are integral to any religion. The law of adoption cannot

bring within the provision of Article 25 and 26 as it is a secular in nature. The right

provided under Article 25 and 26 are not absolute, the rights guaranteed under Article

25 and 26 are subject to public order, morality and health. So when it is required for

social reform the state can interfere in religious matter.

Section 2 of the Shariat Act has enumerated some subjects which are to be

governed by the Muslim Personal Law; it excludes the law of adoption. Exclusion of

some subjects like adoption in respect of which a valid custom could govern means that

the law of adoption is not prohibited. There is not a separate statute for a non Hindu for

the law of adoption.

The Kerala High Court in Phileps Allred Malvin vs. Y.J. Gonsalvis and other82

has held that the right to adopt a child of another is constitutional right of the citizen of

India and this right comes under the ambit of the right to life and personal liberty under

Article 21 of the Constitution of India. Again in Manuel Theodore D, Souza83 the

Bombay High Court has held that right to be adopted and right to have a healthy family

are the Fundamental Rights of an orphan, abandoned child and who are given

opportunities and facilities under Article 39(f) of the Constitution of India to develop in

a healthy manner.

80
AIR 1995 SC 1531, 1538:(1995) 3 SCC 645
81 th
Jain M.P., ‘Indian Constitutional Law’, 5 edi (2005) Wadhwa Nagpur
82
AIR 1999 Ker 187
83
2000 (2) Bom CR 244 II (2000) DMC 292

154
 In Lakshmi Kant Pandey vs. Union of India and other84 the Supreme Court has

considered the welfare of child in respect of the law of adoption. The children are

regarded as the mirror of the nation‟s future. They are the asset of the nation, so equal

opportunity for the development to all children during their growth is indispensible,

which can be achieved by providing a good and healthy family atmosphere to the child.

The children are given opportunities and facilities by the Constitution to develop in a

healthy manner.85

Article 13(1) of the Constitution of India provides that any order, ordinance,

rule, regulation, custom, bye-law shall be regarded as void to the extent of the

inconsistent with the provision Part-III of Constitution. So a custom which violates

Article 14 and 21 will be void under Article 13(1), therefore the right of an adopted

child cannot be restricted by the personal law.

In Shabnam Hashmi vs. Union of India and others86 the Supreme Court has

stated that any person can adopt a child under the Juvenile Justice (Care and Protection)

Act 2000. The Juvenile Justice Act 2000 provides the provision of adoption for all the

people, which has replaced the provisions of the Guardian and Wards Act. Now a

person irrespective of any religion can adopt. The Juvenile Justice Act provides equal

right to the childless parent to adopt a child of another under the provision of the Act.

Under the Act when a person wants to adopt a child the legal relation between the child

and parent will be created between the child and the person who has adopted. The

adoptive parent has all the obligations towards the child as a natural and the child also

has the right to claim all the legal rights from the adoptive parents.

84
1984 SC 469
85
Article 39(f) of the Constitution of India
86
(2014) 4 SCC 1

155
 India is a welfare state and the growth of the country depends on the good health

of a child. For the well health of a child a sweet family atmosphere is required. The law

of adoption gives benefits to the childless parents as well as to a parentless, abundant

and neglected child. A Non-Hindu who have a lot of property but have no issue can not

adopt a child of another due to their own personal law even he wants. A marital life is

said to be complete after the birth of a child. A person who has no child is said to be

incomplete because the child only can continue the lineage of the family. Therefore the

taking a child of another as a natural child of the adoptive parent, is benefited for the

issueless parent as well as for the children who needs proper care and protection and a

healthy family for their proper growth. So there is no logic why the personal law in

India except Hindu Law does not permit adoption of a child of another.

156