M/S Shabnam Hashmi vs Union Of India & Ors on 19 February, 1947

Recognition of the right to adopt and to be adopted as a fundamental right under Part-III
of the Constitution 
Adoption in Islam

Is it recognised and legal to adopt children under muslim laws?

How does adoption take place under the muslim law?

What are the challenges, complications and implications in the course of adoption?

Adoption is allowed in Islam, but the terminology used is kafala, which comes from a word
that means 'to feed.' In essence, it describes more of a foster-parent relationship. However, even if
the child is adopted in at birth, the child shall not take the parents’ last name. At age
of puberty the customs of modesty required of men and women in front of strangers
must take place in the adoptive home; and marriage among the adopted and
adoptive family members is perfectly acceptable.

Adoption rights are not wholly recognized under the Muslim personal law. Partial adoption is
permitted under the Muslim personal law i.e. till the age of foster care of the adoptive child;
the adoptive Muslim parents are merely the trustee of the name, surname, estate, etc. of the
adoptive child. Moreover, orphan cannot be adopted directly. In order to adopt the orphan
child, the adoptive parents have to seek permission from the court of law under the Guardians
and Wards Act, 1890. Both schools, however, agree that father while alive is the sole
guardian. Mother is not recognized as a natural guardian even after the death of the father.

Muslim couple can adopt a child from another muslim couples who must be the natural
parents of the child to be given under adoption. If muslim couple wants to adopt a child from
an orphanage, then Islam does not permit to do so. For this purpose, such muslim couples
have to rely on The Guardians and Wards Act, 1890. Father can, however, appoint mother as
a testamentary guardian.

Rules of Adoption under Muslim Law: The rules of adoption under Muslim Law are as
under: 1. The adoptive parents are not permitted to hide the identity of the Child’s biological
family. 2. The tie of the child with his biological parents is never severed. 3. Adoptive parents
are not the biological parents of the adoptive child. 4. In Islam adoption means ‘Kafala’. It
means ‘to freed’. In other words the foster - parent relationship. 5. The adoptive parents are
not allowed to change or alter the name and surname of the adoptive child. 6. Adoptive child
inherits from his biological parents and not from his adoptive parents. 7. As soon as the
adoptive child becomes grown up the adoptive family ceases to be his blood relatives. 8.
Adoptive parents are not allowed interfere with the property of the child given for adoption.
They are merely the trustee of such property
If adoptive child is breast – feed by the adoptive mother then their relationship is of milk
kinship. The supreme court of India delivered the landmark judgment in the year 2014 that,
any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act
2000 irrespective of the religion he or she follows and even if the personal laws of the
particular religion does not permit it. It is akin to Special Marriage Act, 1954 (Shabnam
Hashmi v. UOI AIR 2014 SC).