SHABNAM HASHMI V.

UNION OF INDIA
(2014) 4 SCC 1/ AIR 2014 SC 1281

 INTRODUCTION
The petitioner, a woman of the Muslim religion filed the petition under Article 32 of the
Indian Constitution requesting the Supreme Court to lay down optional guidelines enabling
adoption of children by persons irrespective of religion, caste, creed, etc. She had approached
the Supreme Court to be legally recognised as the parent of a girl who was in the petitioner’s
custody since 1996 but under the prevailing adoption laws applicable to Muslims (the
Guardians and Wards Act, 1890), the petitioner was called only a guardian of the girl.
However, the All-India Muslim Personal Law Board objected to the petition and said that the
Islamic Law does not recognize adoption.

 ARGUMENTS

The petitioner argued that the Juvenile Justice Act of 2000 is a secular law enabling any
person, irrespective of his/her religion, to take a child in adoption. This act is similar to the
Special Marriage Act of 1954 which enables any person living in India to get married
irrespective of the religion.
On the other hand, the AIMPLB contended that adoption under the Juvenile Justice Act of
2000 is only one of the modes of taking care of an abandoned/surrendered child, others being
foster care, sponsorship and being looked after by After-care Organisations. It was contended
that, although the Muslim Personal Law does not prohibit a childless couple from taking care
and protecting a child with material and emotional support, it does not recognize an adopted
person to be at par with a biological child. It said that under the Kafala System (which is also
recognized by the United Nation’s Convention of the Rights of the Child, under Article
20(3)), the child is placed under a “Kafil” who provides for the well-being of the child. The
child remains the true descendant of his/her biological parents and not of the “adoptive
parents”.

 PRAYER OF THE PETITIONER

The petitioner prayed that directions be made to implement the provisions of the Juvenile
Justice Act, 2000 and to follow the Central Adoption Resource Authority (CARA) guidelines
as notified. Further, it was prayed that a declaration be made recognising the right of a child
to be adopted and that of the prospective parents to adopt as Fundamental Rights under
Article 21 of the Constitution.

 DECISION OF THE COURT WITH REASONING

The Supreme Court refused to recognise the right of a child to be adopted and the right of
prospective parents to adopt as Fundamental Rights. It said that the elevation of these rights
to the status of Fundamental Rights will have to await a dissipation of the conflicting thought
processes and beliefs prevailing in the country. The time was not an appropriate time and
stage where these rights could be raised to the status of Fundamental Rights and/or to
understand such rights to be encompassed by Article 21 of the Constitution, according to the
Court.
However, on the other hand, the Court rejected the objection of the AIMPLB and said that
people have a right to adopt under the Juvenile Justice Act, 2000 irrespective of their religion.
It said that the Juvenile Justice act, 2000 is an enabling statute that gives a prospective parent
the option of adopting an eligible child by following the procedure. The Act does not
mandate any compulsive action by any prospective parent and such parent has a liberty of
accessing the provisions of the Act at his desire. He is also at the liberty to follow the
principles of the personal law applicable to him. In other words, the personal law would
always continue to govern any person who chooses to submit himself until a Uniform Civil
Code is introduced.

 DEVELOPMENTS IN THE LAW OF ADOPTION IN INDIA

Right to adopt irrespective of religion: -
There are different laws for adoption for different religious communities in India. The
Hindus, Buddhists, Jains or Sikhs can adopt under the Hindu Adoption and Maintenance Act,
1956. This act is not applicable to the Muslims, Christians, Parsis or Jews who were governed
by their personal laws or the Guardians and Wards Act, 1890 (the “GAWA”) before the
enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the “JJ Act”,
2000). Although the personal laws of the latter religious communities (non-Hindus) do not
recognize adoption, they can take a child in ‘guardianship’ under the provisions of the
Guardianship and Wards Act, 1890. A child taken in ‘guardianship’ under the GAWA does
not have same the status as a child who is born biologically to a family, unlike a child who is
‘adopted’ under the HAMA. A child who is ‘adopted’ has the same rights as a child who is
born biologically for e.g., the right of inheritance. The guardian-ward relationship continues
until the child completes 18 years of age. There is no parent-child relationship under the
GAWA. Since the JJ act, 2000 is a secular law, prospective parents irrespective of their
religion can adopt according to the procedure laid down in the act. Hence, people of non-
Hindu religion can adopt under the JJ Act, 2000 and there will be a parent-child relationship
between the adopted child and the adoptive parents, unlike the GAWA Act.
Juvenile Justice (Care and Protection of Children) Acts
The Juvenile Justice Act, 1986 dealt with the custody of a “neglected child” in a Juvenile
Home or an order placing such a juvenile under the care of a parent, guardian or other person
who was willing to ensure his good behaviour during the period of observation as fixed by
the Juvenile Welfare Board.1 The JJ Act, 2000 introduced provisions for “Rehabilitation and
Social Reintegration” of a child in need of care through adoption or foster care or sponsorship
or by sending the child to an after-care organisation. The Amendment of 2006 to the act
defined “adoption” as the process through which the adopted child is permanently separated
from his biological parents and become the legitimate child of his adoptive parents with all
the rights, privileges and responsibilities that are attached to the relationship.2
1
Shabnam Hashmi v. Union of India (2014) 4 SCC 1
2
Section 2(aa), JJ Act, 2000.
The Juvenile Justice (Care and Protection of Children) Act, 2015 (the “JJ Act, 2015”) has
replaced the JJ Act, 2000. This act was brought to streamline adoption procedures for
orphans, abandoned and surrendered children3 in order to prevent delays in adoption. Along
with other changes to the law of adoption, through the JJ Act, 2015 the Central Adoption
Resource Authority (CARA) has been given the status of a statutory body. The Adoption
Regulations, 2017 define the procedure related to adoption by relatives residing within the
country and abroad. The provisions of the JJ Act, 2015 read with the Adoption Regulations,
2017 stipulate five kinds of adoptions. They are adoption by unrelated person(s) within or
outside the country, adoption of related child by relatives within or outside the country and
adoption of a child by step-parents within the country.

UNIFORM CIVIL CODE AND JUDICIAL RESTRAINT

The Juvenile Justice (Care and Protection of Children) Act, 2015, is a small step towards the
goal which is enshrined in Article 44 of the Constitution. 4 A common Civil Code will help in
integration of the nation by removing disparate loyalties to law which have conflicting
ideologies.5 In other words, a common Civil Code will help in National Integration by
removing the contradictions based on ideologies.6 But there has been no attempt to form a
Uniform Civil Code applicable to all the citizens of the country. 7 The Supreme Court has
expressed its concern and regret that even after so many years of Independence there is no
Common Code governing the matters of marriage and divorce, adoption, succession, etc. It
was observed by the Supreme Court that even though the directive principles envision the
existence of a Uniform Civil Code, the issue remains an unaddressed constitutional
expectation.8 Way back in 1985, the Supreme Court said that there should be a complete
reform of the marriage law and a uniform law should be applicable to all people irrespective
of religion or caste.9 The Delhi Hight Court has recently pointed out the need for a Uniform
Civil Code so that the citizens are not made to struggle due to the conflicts and contradictions
in various personal laws.10
Although, the Supreme Court has expressed it views regarding enactment of a Common Civil
Code a long time ago and many times since then, it has time and again said that forming such
a Code is the duty of the Legislature. In 1994, the Supreme Court refused to entertain a
petition in which it was prayed, inter alia, that the respondents, the Union of India, should be
directed to consider enactment of a common Civil Code.11 It said that these matters pertain to
the legislative sphere.
The Supreme Court has pointed out that making a law or amending a law is a slow process.
The Legislature will make amendments where the need is felt most acute. It said that the
3
https://indianexpress.com/article/explained/explained-what-amendments-to-juvenile-justice-act-mean-
7194672/
4
Supra note 1.
5
Mohd. Ahmed Khan v. Shah Bano Begum and Ors
6
John Vallamattom and Aniother v. Union of India
7
Jose Paulo Coutinho v. Maria Luiza Valentine Pereira and Another (2019) 20 SCC 85
8
ABC v. State (NCT of Delhi) (2015) 10 SCC 1
9
Ms. Jordon Diengdeh v. S.S. Chopra (1985) 3 SCC 62
10
Satprakash Meena v. Alka Meena MANU/DE/1219/2021
11
Maharshi Avadhesh v. Union of India (1994) Supp (1) 713
mischief or defect which is most acute can be remedied by process of law at stages, hence it
would be undesirable to enact a common Civil Code in one go.12. It said that time and stage
were not appropriate to elevate this right to the status of a Fundamental Right owing to the
conflicting thought processes and beliefs prevailing in the Country. The Court followed the
principle of Judicial Restraint which says that the court should not deal with the issues of
Constitutional interpretation unless such exercise is unavoidable. The Supreme Court has
followed Judicial restraint in a number of cases and it has been held that the court must
maintain judicial restraint in the matters relating to the legislative executive domain. 13 In
Reynold Rajamani v. Union of India14, while dealing with the scope of certain provision of
the Indian Divorce Act, 1869, the Supreme Court said that it is the business of the Legislature
and not the Courts to add some other grounds of divorce to those already specifically set forth
in the legislation. It said that the courts cannot extend or enlarge legislative policy by adding
a provision to the statute which was never enacted there. In Jeet Singh Bisht 15, the Supreme
Court said that judicial restraint protects the independence of judiciary as the Courts withhold
themselves from being involved in the Legislature’s sphere. In Shabnam Hashmi 16 , the
Court rejected the petitioner’s prayer that the Right to adoption and be adopted should be
recognized as a Fundamental Right under Article 21 of the Constitution. As can be seen from
a variety of decisions that enacting a Uniform Civil Code is the Legislature’s duty, the Court
in Shabnam Hashmi refused to elevate the Right to adopt and be adopted to the status of a
Fundamental Right.

RIGHT TO ADOPT AND BE ADOPTED- AS A FUNDAMENTAL

RIGHT
The Right of a child to be adopted is independent, as a human being and is not pursuant to
any personal law. This right flows from his Right to Life. 17The Right to life and personal
liberty is conferred by Article 21. The purpose of Article 21 is to help an individual to find
his own ability to work successfully.18 Apart from Right to life and personal liberty Article 21
also confers Right to basic necessities of life19, Right to Livelihood20, protection of heritage21,
Right to have enjoyment of quality of life and living 22, Right of enjoyment of pollution free
water and air23, Right to social Justice24, Right to self-interest25, Right to food, clothing,
decent environment26, etc. Article 21 should be interpreted in a broad way so that it covers all
12
Pannalal Bansilal Pitti v. State of A.P. (1996) 2 SCC 498
13
Government of Andhra Pradesh v. P. Laxmi Devi, (2008) 4 SCC 720, State of U.P. v. Jeet Singh Bisht, (2007)
6 SCC 586
14
(1982) 2 SCC 474
15
Supra note 13.
16
Supra note 1.
17
Re: Manural Theodore D’Souza 2000(2) Bom CR244
18
Smt. Maneka Gandhi v. Union of India and another (1978) 2 SCR 621
19
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others AIR 1981 SC 746
20
Olga Tellis and Others v. Bombay Municipal Corporation and others AIR 1986 SC 180
21
Ramsharan Autyanuprasi and another v. Union of India AIR 1989 SC 549
22
Chhetriya Pradushan Mukti Sangharsh Samiti v. State of UP and others (1990) 3 SCR 739
23
Shubhash Kumar v. State of Bihar and others (1991) 1 SCR 5
24
C.E.S.C. Limited and others v. Shubash Chandra Bose and others, (1992) ILLJ 475 SC
25
Peerless General Finance and Investment Co. Ltd. and another v. Reserve Bank of India 1991 CriLJ 1391
26
M/s Shantistar Builders v. Narayan Khimalal Totame and others AIR 1990 SC 630
the necessary aspects of the human life and enhance the dignity of the individual and the
worth of the human person.27

CONCLUSION
The Supreme Court noted that personal beliefs and faiths cannot dictate the operation of the
provisions of an enabling statute. It rejected the AIMPLB’s contention that Islamic Law
doesn’t recognize adoption; therefore, a Muslim cannot adopt a child under the JJ Act, 2000.
The Court declared the JJ Act, 2000 as a secular law and held that people are allowed to
adopt under the Act irrespective of their religion. This judgment came as a relief for the
people belonging to non-Hindu communities and which would allow them to adopt without
worrying about their personal laws. The Court rightly held that personal beliefs cannot trump
the provisions of an enabling statute and if a person chooses to be governed by his personal
law, he is free to do so.

On the other hand, the Court refused to elevate the Right to adoption and be adopted to the
status of a Fundamental Right. As we can see from a number of Supreme Court’s decisions
that Article 21 should be construed in a broad way so that each and every person is conferred
with such rights so that the significance and quality of his life are enhanced. The Law
Commission28 has noted that the country is yet to frame a full legislation exclusively dealing
with adoption encompassing religion. It also suggested that until a Uniform Law for adoption
is enacted, the JJ Act, 2015 should be made more comprehensible and accessible. Further, it
also suggested that the terms ‘mother and father’, ‘son and daughter’ should be replaced with
‘parents’ and ‘child’ respectively so as to enable individuals of all genders identities to adopt
and be adopted.

The Court further noted that it was not the right time for the enactment of a Uniform Civil
Code because of the conflicting personal beliefs prevailing in the country. Though a Uniform
Civil Code is desirable, the Court has rightly pointed out the situation relating to different
religions prevailing in the Country and as it has already been noted, such a Code cannot be
enacted in one go. Even after 75 years of Independence, a Uniform Civil Code sounds like a
far-fetched dream. This doesn’t mean that the Right of adoption should not be available to
each and every person irrespective of their sex or religion. There are still a large number of
babies waiting to be adopted and a large number of people, including gay couples, waiting to
adopt. Unfortunately, the number of In-Country and Inter-Country adoption is declining. 29
With the decriminalisation of homosexuality, our country is progressing. There is a need for a
uniform law of adoption and in our opinion the Right to adopt and be adopted should be
available to all the citizens of the country as a Fundamental Right irrespective of their
religion and sex.

27
Supra Note 19.
28
Consultation Paper on Reform of Family Law, 31st August 2018
29
In-Country and Inter-Country adoption in year 2010 as compared to year 2020-2021 (April 20 to March 21)-
5693 and 628 in 2010 as compared to 3142 and 417 in 2020-21