MUSLIM LAW CASE NOTES(EXCEPT SHOBHA RANI)

Citations: Shobha Rani Vs Madhukar Reddi, 1988 AIR 121

Date of Judgement: 12/11/1987

Equivalent citation: 1988 AIR 121,

Court: Supreme Court of India

Statutes Referred:

Hindu Marriage Act, 1955; Section 13(1)

Dowry Prohibition Act 1961; Section 10, 23
Indian Penal Code, 1860; Section 498A

Facts:

The Wife is post-graduate in organic sciences, and the husband is a clinical

specialist.
They both were happily married on 19/12/1982, but soon after the quarrels
started.
They began exchanging letters with severe sentiments.
Then, they also started to criticize one another.
At one phase, they considered ending up by common agreement.
It was maybe out of disgust. it would have been something more, on the off
chance that it had occurred.
Eventually, they found themselves in the Court.
The wife went to the Court looking for disintegration of her marriage, and She
made few complaints.
Issue Involved:
Whether the wife should be allowed to grant decree of divorce on the ground of
cruelty?
Contention of Appellant:

The Counsel of the Petitioner Contended that:

The one complaint which was concerned is her irritable about the share interest
by the husband.
The endowment is a profound established evil in the general public. It has now
begun as standard presents with adoration and warmth.
In former times, it was seen that, it was standard to give a few presents to the
lady and husband and his family at the hour of marriage, but now we can say
that if husband or any of his family member demands for anything such as
money, car etc it will be counted as dowry as per dowry prohibition act.
The Husband and his relatives began requesting money or kind from the wife,
that comes under dowry, and soon after that it was seen that it is an issue of
right.
The Petitioner in its evidence also stated that, “My Mother-in-law always used
to make demand for money from my parents. I used to tell my parents about
what was happening to me in that house. I used to keep silent when my mother-
in-law made demands for money.” The respondent also sometimes used to make
demands for money.
The wife said that she used to tell him as to why should I ask money from my
parents, and she also used to tell him that I would not ask my parents. But he
used to reply that such things were only there in olden times and not now and
that therefore, I should ask money from my parents.
There were fixed deposits receipts in my name in the Bank up to one and a half
to two lakhs.
Besides this there was house plot in my name at Jubilee Hills. Ans she was
afraid of telling this to her husband and parents in law as I would not ask my
parents for money.
In her arguments, she also stated that, she was even afraid to go back again to
the respondent’s house because she felt that the pestering for money will go on
like this.
Therefore, she developed aversion for going back to the respondent. For that
reason, only, she joined as a schoolteacher.
Counsel said, it would be also better if we less depend upon precedents.
Because as Lord Denning said in Sheldon Vs Sheldon “The categories of
cruelty are not closed.” Each case may be different.
The Court has only to understand the spouses concerned as nature made them
and consider their particular grievance. As Lord Reid observed in Gollins Vs
Gollins “In matrimonial affairs we are not dealing with objective standards, it is
not a matrimonial offence to fall below the standard of the reasonable man (or
the reasonable woman). We are dealing with this man or this woman.”
Contention of Respondent:

The Counsel of the Respondent Contended that:

The respondent in the interrogation, was attempting to admit not many focuses.
Respondent expressed that; it is obvious from the disposition of the candidate
that she is inclined to misrepresent things. That is apparent from her protest of
food and the propensity for drinking.
Either due to her over affectability or as a result of her propensity for
misrepresentation, she has made a pile of mole-slope.
Further, for the reasons most popular to her, the solicitor has not analysed her
father.
There is no clarification why he has not been inspected on the side of her
dispute that the respondent and his folks were hassling her for cash.

Judgment:
The Appeal was Allowed and the marriage was disintegrated.

It was seen that the court was contented with the facts of the case and it was
stated that the case does justify an inference that there was demand for dowry.
The demand for dowry is prohibited under law, and it therefore amounts to
cruelty entitling.

The Hon’ble Court conceded a pronouncement for disintegration of the

marriage and the appeal was allowed hence decree for grant of dissolution of
marriage was allowed.

It was also stated that cruelty, which may be physical, mental, intentional or
may be unintentional than also it must be understood that in the ordinary term in
matrimonial offence.

Rationale Decidendi:

Lord Evershed remarked in one of the referred cases that there is no

requirement to prove the ill-will of one party to harm the other in order to prove
cruelty.
The inquiry in all such cases is, to my brain, regardless of whether the
demonstrations or direct of the gathering charged were “remorseless” as per the
conventional feeling of that word, as opposed to whether the gathering charged
was oneself a pitiless man or lady.
Obiter Dicta:

Court has comprehended that, the ideal couple or a near-ideal one will probably
have no occasion to go to a matrimonial court, for, even if they may not be able
to drown their differences, their ideal attitudes may help them overlook or gloss
over mutual faults and failures.
Conclusion:
We can’t lament the way that share was requested, and in our law, it is
obviously referenced that the interest of settlement is restricted, As The
endowment is a profound established evil in the general public, in request to
control this detestable practice, the Parliament authorized the Dowry Prohibition
Act, 1961 (Act No. 28 of 1961). The Act disallowed the giving or taking of
share, so to dispose of this training, the court choice would be exceptionally
useful, we can finish up by saying that new measurement has been given to the
idea of brutality.

While Clarifying to Section 498A of the Indian Penal Code it states that any
wilful conduct which is of such a nature as is probably going to drive a lady to
end it all or liable to make grave injury or peril life, appendage or wellbeing
(regardless of whether mental or physical of the lady), and provocation of the
lady with the end goal of forcing her or any individual identified with her to
fulfil any unlawful need for any property or significant security would comprise
mercilessness.
 Chand Patel vs. Bismillah Begum case discusses the concept of void and
voidable/irregular marriages in association with Muslim law and its impact
on the provision of maintenance.

Citation: (2008) 4 SCC 774

Relevant Provisions:

Section 125 of Code of Criminal Procedure,

Facts of Chand Patel Case:

The appellant (Chand Patel) was first married to the elder sister of respondent
No.1 and subsequently married her, and lived under the same roof.
By the passing of time, the relationship between respondent No.1 and the
appellant deteriorated and soon he started to neglect and refused to maintain
respondent No. 1 and respondent No.2 (minor daughter of respondent No.1
born out of wedlock between respondent No. 1 and the appellant) which
resulted in the filing of a petition under section 125 Cr.P.C for maintenance in
the court of Judicial Magistrate First Class.
The bench supported the contention of the respondent and granted her
maintenance of Rs.1,000/- per month, this order was disputed by the appellant
in District Court which also validated the decision of Judicial Magistrate of First
Class.
After which an application under section 482 Cr.P.C was filed in High Court and
the bench took a similar notion which resulted in this instant case.
Legal Issue:
Whether a marriage performed by a Muslim man with his wife’s sister during
the lifetime of his wife will constitute a valid marriage or irregular marriage
and its implication on the provision of maintenance?

Contention:

The appellant asserted that, as Muslim law prohibits “Unlawful Conjunction”

i.e. Man cannot marry his wife’s sister during the lifetime of his wife and such
marriage is void at inception and would not give any rights to respondent No.1
and respondent No. 2.

The respondent contended they do not expect courts to examine the validity
of marriage while passing an order for maintenance under section 125 Cr.P.C.
Additionally, till the marriage has been confirmed as void by a competent court
it continues to exist and confers the right to maintenance.

The appellant himself married his wife’s younger sister during the lifetime of
his wife and is now using a technicality to deflect from his responsibility to
maintain his wife and children.

Ratio Decidendi:

The bench, in this case, deemed it essential to clarify the legal status of the
marriage between the respondent and the appellant as it would be the key
factor to the right of maintenance.
The case dwells in the ambit of Muslim law. As per Mohammedan law, it is
unlawful conjunction “where a man at the same time has two wives who are
related to each other by consanguinity, affinity, and fosterage, that if either of
them had been male, they could not have been lawfully intermarried, for
instance, two sisters or aunt or niece and this bar of unlawful conjunction
render a marriage irregular not void.”
Additionally, the bench also relied on the case of Tajbi Abalal Desai vs. Mowla
Alikhan Desai, where it was held that such marriages are irregular and not void
because such marriages could become lawful in case of death or divorce of the
first wife reducing it to a lawful marriage and after considering various
judgments of High Courts and related provision the bench agreed with the
rationale of Tajbi case.

Decision:

The court concluded that unlawful conjunction leads to an irregular marriage

and is not void. Hanafi Law in relation to Muslims in India is concerned, an
irregular marriage continues to exist until a competent authority declares it
void.
Till then, it entitled the wife and children to maintenance, and the court
instructed the appellant to provide
Shamim Ara vs. State of UP case had important things to say
about the limits of Muslim men’s talaq privileges in India.
This case is a decisive victory for the interests of married
Muslim women in India.
Facts of Shamim Ara vs. State of UP case:

 Shamim Ara the appellant and Abrar Ahmed were married in 1968

under Muslim Shariyat Law. Four sons were born out of wedlock.
 The appellant on 12.4.1979 applied under Section 125 Cr.P.C on
behalf of herself and her two minor children complaining of desertion
and cruelty on part of her husband.
 The husband submitted a written statement of him divorcing the
appellant on 11.7.1987.
 The presiding judge of the family court at Allahabad refused to grant
any maintenance to the appellant because the respondent already
divorced her on 11.7.1987. The maintenance of Rs.150 was allowed
only to one of her children as he was still a minor.
 The appellant denied having been divorced and preferred a revision
before the High Court.
 The High Court of Allahabad held that the alleged divorce was
completed only in 1990 when the respondent submitted a written
statement to her appeal. Therefore, the appellant was entitled to
claim maintenance from 1988 to 1990.
 The figure for maintenance allowed by the High Court was Rs.200. The
appellant filed a special leave before the Supreme Court.

LEGAL ISSUES:
Whether the appellant can be said to have been divorced by the
respondent and the said divorce has been communicated and become
effective 5.12.1990, the day when the respondent submitted the written
statement in these proceedings?
RATIO DECIDENDI:
The Honorable Judges present to hear this case were Justice R C
Lahoti and Justice Venkatarama Reddi. The Judges were of the opinion
that:

 The written statement of divorce submitted by the respondent lacked

evidence since the details of talaq were not pleaded.
 The circumstances under which and the persons under whose
presence the talaq was pronounced on 11.7.1987 were also not
mentioned.
  There were no reasons given in justification of talaq and no proof that
the effort of reconciliation was made which has to precede the talaq.
 For the talaq to be effective, it has to be pronounced. The word
“pronounce” means to proclaim, to utter formally, to utter
rhetorically, to articulate, and to declare. There is no proof of talaq
being taken place on 11.7.1987.
 What the high court upheld the written statement as talaq and its copy
given to the wife was the communication. The Judges of the Supreme
Court held that a mere plea taken in the written statement as
divorce having been pronounced in the past cannot be treated as
effectuating talaq.
 A plea of the previous divorce taken as a written statement cannot
be treated as a pronouncement of talaq by the husband to wife on
the date of filing of the written statement followed by delivery of the
copy to the wife.
 The respondent failed to produce evidence for the talaq to be
effective.

Decision in Shamim Ara vs. State of UP:

The Bench held that for the foregoing reasons the appeal is allowed. Neither
does it dissolve the marriage between the parties on 5.12.1990 nor does the
liability of the respondent to pay the maintenance comes to an end on
5.12.1990. 

Therefore, the respondent shall remain liable to pay maintenance until the
obligation ends under law. The respondent shall endure the costs of this
appeal.

CONCLUSION:
As ordained by Holy Quran, is that the talaq must be for a reasonable cause
and must be led by attempts of reconciliation between the husband and the
wife.

Two arbiters must be present for the same; one from the wife’s family and one
from the husband’s family. If all the attempts made fail, then talaq may be
pronounced.
Shayara Bano vs Union of India, better known as the ‘Triple
Talaq Case’, gave India a historical judgement which declared
the practice of Triple Talaq to be unconstitutional. The Triple
Talaq judgement is widely regarded throughout the
jurisdictions as a safeguard against social evils. Because of
the astute and justified reasoning provided by the majority
bench of the Supreme Court, India finally abolished the
regressive and immoral practise of instantaneous Triple Talaq.
EQUIVALENT CITATIONS: AIR 2017 9 SCC 1 (SC)
DATE OF JUDGEMENT: 22nd August 2017

FACTS OF SHAYARA BANO vs UOI:

 The petitioner, Shayara Bano, had been married to her husband,

Rizwan Ahmed, for 15 years. In 2016, he divorced her through instant
triple talaq (talaq -e biddat), i.e., a practice that allows a man to
divorce his wife by saying the word “talaq” three times in one
sitting without his wife’s consent.
 Shayara Bano filed a Writ petition in the Supreme Court pleading to
declare three practises talaq-e-biddat, polygamy, and nikah-halala as
unconstitutional as they violate the fundamental rights of women
enshrined in Articles 14, 15, 21, and 25 of the Indian Constitution.
 Nikah Halala means a practise in which a divorced woman who wishes
to remarry her husband must marry and get a divorce from a second
husband before remarrying her first husband while polygamy means
the practice of Muslim men having over one wife.
 On February 16th, 2017, the Court requested written submissions from
Shayara Bano, the Union of India, various women’s rights
organisations, and the All India Muslim Personal Law Board (AIMPLB)
on the issues of talaq-e-biddat, nikah-halala, and polygamy.
 The Union of India supported the petitioner’s claim that these practises
are unconstitutional and women’s rights organisations such as Bebaak
Collective and Bhartiya Muslim Mahila Andolan (BMMA).
 However, the AIMPLB argued that uncodified Muslim personal law is
not subject to constitutional judicial review, and that these are essential
Islamic practises protected by Article 25 of the Constitution.

ISSUES

 Whether the practice of Triple Talaq is constitutional?

  Whether the practice of Triple Talaq is an essential religious
practice of Islam?

RATIO DECIDENDI
Justice Rohinton Fali Nariman: The impugned practice of Triple Talaq is a
tool that allows a marital tie to be severed on the whims of the husband with
no attempt at reconciliation to save it. Hence, this form of Talaq
violates Article 14 and is liable to be struck down.
If removing a practice causes a significant change in religion, that practice is
referred to as an ‘essential religious practice’ in Article 25(1) protects only
such practices.
The usurpation of religious practices by the state will cause a violation of the
rights mentioned in Article 25(1), but not the usurpation of circumstantial and
non-essential practices.

That most Islamic countries have abandoned the practice of Triple Talaq

also shows that it is not one that will be considered an essential religious
practice.
The majority bench in the Shaira Bano case relied on the decision
of Shamim Ara vs State of UP (2002).
DECISION IN SHAYRA BANO vs UNION OF INDIA:
The Constitution Bench of the Supreme Court, by a 3:2 majority, set aside
and declared the practice of instantaneous Triple Talaq or Talaq-e-biddat to
be unconstitutional under Article 14 read with Article 13(1) of the Indian
Constitution. In Shayra Bano vs UOI, the Court held that the Muslim
Personal Law (Shariat) Application Act of 1937 had sanctioned the
practice as a matter of personal law.
The Court clarified that “…an arbitrary action must involve negation of
equality” and determined that, because triple talaq states that “…the marital
tie can be broken capriciously with no attempt at reconciliation to save
it”, this arbitrariness violates Article 14 of Constitution of India.
The apex court further held in Shayra Bano v UOI that the Muslim Personal
Law (Shariat) Application Act 1937 is void where it recognizes and
enforces triple talaq, citing Article 13(1), which states that all laws in force
immediately before the commencement of the current Constitution (including
the 1937 Act) are void where they are inconsistent with the fundamental rights
enshrined in the Constitution.
The SC ruled that the practice of Talaq-e-biddat is not protected by the
exception set out in Article 25, as the court determined that it is not an
essential component of the Islamic religion.

The court justified its position by stating that, while the Hanafi School
practices it, it is sinful in it. Triple Talaq contradicts the basic tenets of the
Quran, and whatever contradicts Quranis contradicts Shariat; thus, what is
bad in theology cannot be good in law.
CONCLUSION OF SHAYARA BANO v UNION OF INDIA:
The landmark decision in Shayra Bano case is unquestionably a step toward
equality, and it has provided a foundation for future personal law and social
amendments. This decision in Shayara Bano v UOI also dealt with the
minority in a very viable manner, which is a step toward secularism.
Although the primary focus was not gender justice, it will have significant
positive implications for advancing women’s rights and gender equality in
India. It is expected that this judgement will be viewed objectively and will
assist Muslim women in living a better and more secure life as
guaranteed by the law of the land.
Mohd. Ahmed Khan v. Shah Bano Begum Case was highly
controversial and drew in a great amount of political
scrutiny. Shah Bano case now stands as a landmark
judgement that successfully empowers Muslim women
with the right to maintenance beyond the period of ‘iddat’
under Section 125 of CrPC. Shah Bano case study is a
prominent example of judicial activism to protect the rights
of Muslim women against the tyranny of her husband.
CITATION: 1985 SCR (3) 844
DATE OF JUDGEMENT: 23rd April 1985
BENCH: YV Chandrachud (Chief Justice), D.A Desai, O. Chinnappa Reddy,
E.S. Venkataramiah, Ranganath Mishra
RELEVANT PROVISION:
Section 125 of Code of Criminal Procedure, 1973

SHAH BANO CASE FACTS:

1. The appellant was an advocate by profession and was married to the

respondent in 1932. Out of the wedlock, three sons and 2 daughters
were born.
2. The respondent was hurled out of her matrimonial home by the
appellant. After which the respondent filed for maintenance in a court of
the magistrate.
3. Subsequently, the appellant divorced the respondent and denied her
maintenance on the assertion, that as respondent ceases to be her
wife, she cannot claim maintenance.
4. The Magistrate ordered the appellant to pay rupees 25 per month as
maintenance and the respondent filed for revision in the High Court.
5. The High Court Increased the amount to rupees 125 per month in favor
of the respondent aggrieved from this the appellant filed the present
appeal.

ISSUES:

1. Whether Muslim women are entitled to maintenance under section 125

CrPC?
2. Whether Mehar/Dower be deemed as “sum payable on divorce”?

RATIO DECIDENDI:
  The bench, in Shah Bano Begum Case, opined that the religion of the
spouse is irrelevant under section 125 CrPC. As it was not enacted to
govern any civil relationship but the intent of the section was to provide
a quick remedy to the aggrieved.
 The position that “under Muslim personal law a man is not obligated to
provide maintenance beyond the period of iddat” is incorrect.
 The fundamental position in Muslim law is that when a woman is apt to
maintain, then the husband is not obligated to pay maintenance beyond
the period of ‘iddat’.
 But if she is unable to maintain herself, she is entitled to recourse under
section 125 CrPC.
 Mehar/Dower is deemed as an obligation on the husband as a Mark of
respect for his wife but divorce is not a sign of respect and considering
mehar/dower as “sum payable on divorce” is damaging.

 The translation of Holy Quran, ayat 241 by Dr. Allamah Khadim

Rashmani Nuri stated that “For divorced women, a provision should
be made with fairness in addition of dower; this is a duty on the
reverent”.
 Report of commission on Marriage and Family Law appointed by the
Government of Pakistan stated:” middle-aged women who are divorced
without any reasons should not be thrown out on road without any roof
or means of sustenance”.

SHAH BANO CASE JUDGEMENT AND DECISION:

The bench  while delivering Shah Bano judgement, upheld the decision of the
High Court and directed the appellant to pay rupees 10,000 as the cost of
appeal in favor of the respondent
 In Danial Latifi vs. Union of India case, the Court declared
that the husband’s liability does not end with the expiration
of Iddat, but that in cases of vagrancy and destitution of the
wife, the husband must maintain her and make reasonable
and fair provisions for her even beyond the customary
period.
BENCH: Justice G.B. Pattanaik, Justice S. Rajendra Babu, Justice D.P.
Mohapatra, Justice Doraiswamy Raju, Justice Shivraj V. Patil.
FACTS OF DANIAL LATIFI CASE:

 Shah Bano, a 62-year-old woman from Madhya Pradesh, who was

divorced by her husband in 1978, filed a case for maintenance under
Section 125 of the Code of Criminal Procedure (CrPC).
 The Supreme Court ruled in her favor and upheld the right to alimony
for Muslim women. When the Parliament passed the Muslim Women
(Protection of Rights on Divorce) Act, 1986, which effectively
invalidated the decision in the Shah Bano case, she was denied
maintenance.
 Section 3(1) of the Act stated that divorced Muslim women are entitled
to reasonable and fair maintenance during the “Iddat” period, denying
divorced wives from their former husbands subsequent and further
maintenance.
 Danial Latifi, the counsel of Shah Bano, viewed the Act passed to
be in derogation of certain provisions of the Constitution because
a wife who depended on her husband before marriage has the
right to life even after marriage.
 As a result, this Act infringes on Article 21 of the Constitution. The Act
violated Articles 14 and 15 as well as denied divorced Muslim women
the same maintenance benefits as other divorced women under
Section 125 of the CrPC.

 Therefore, Daniel Latifi filed a Writ Petition in the Supreme Court

challenging the constitutional validity of the Muslim Women
(Protection of Rights on Divorce) Act, 1986.
LEGAL ISSUES:

 Whether Section 3(1) of the Muslim Women (Protection of Rights

on Divorce) Act, 1986 inconsistent with Articles 14, 15, and 21 of
the Constitution of India?
 Whether the Muslim Women (Protection of Rights on Divorce) Act,
1986 constitutionally sound?

CONTENTIONS:

 The petitioner claimed that Section 125 of the CrPC was framed to
address a situation in which a divorced wife was likely to benefit from
the divorce, considering Article 21 of the Indian Constitution, which
deals with protecting life and personal liberty.
 If the remedies under section 125 are applied in the case of divorced
Muslim women, it will violate Articles 14, 15, and 21.
 It would be against the secular character of the Constitution if section
125 of the CrPC were not applied in relation to deprived Muslim
women.
 The challenge raised in this petition, according to the Solicitor General,
was outside personal law.

RATIO DECIDENDI:
Justice S. Rajendra Babu: While upholding the constitutional validity of the
Muslim Women (Protection of Rights on Divorce) Act, 1986, the bench
observed that under Sec 3(1)(a), a Muslim husband is responsible for paying
maintenance, which may be extended beyond the Iddat period, as well as
making reasonable and fair provisions for his divorced wife’s future.
If a divorced Muslim woman has not remarried and is unable to support
herself after the Iddat period, she can file a claim under Section 4 of the act,
which states that she should be supported by relatives in proportion to the
property she leaves to her relatives after her death.

If her relatives cannot support her, the Magistrate may order the State Wakf
Board to pay her support under the Act. The provisions of the Act do not
violate Articles 14, 15, and 21 of the Indian Constitution.

DECISION IN DANIAL LATIFI CASE:

The Constitution Bench of the Supreme Court upheld the view that the
wording of Section 3 (1), “reasonable and fair provision and maintenance to
be made and paid to her within the iddat period by her former husband” was
interpreted to mean that the husband must pay maintenance to the wife
before the iddat period expires and that if he cannot do so, the wife may
recover it as provided in Section 3(3) of the Act.
However, nowhere does it state that reasonable and fair provision and
maintenance is limited to the iddat period and not beyond it.

The Court ruled that a husband’s obligation to support and maintain his wife
extends for the rest of the divorced wife’s life unless she marries again.

CONCLUSION:

 The Honorable Supreme Court rendered a balanced verdict in this case

by interpreting the Muslim Women (Protection of Rights on Divorce)
Act, 1986 in a manner that saved it from being struck down as
unconstitutional and without compromising personal law or individual
rights.

 The Court declared that the husband’s liability does not end with the
expiration of Iddat, but that in cases of vagrancy and destitution of the
wife, the husband must maintain her and make reasonable and fair
provisions for her even beyond the customary period.
 Not only did the Court appear progressive in determining women’s
rights, but it also avoided interfering with the Muslim community’s
personal laws.
 While many disagree with the verdict given in this case, as far a
maintenance dispute is concerned involving Muslim personal law, the
rule in Danial Latifi v. Union of India case is followed.
 Shabnam Hashmi vs. Union of India & Ors.

Background

Political Background
It is an Indian Social Activist and human rights campaigner. She started her
social activism campaigning about adult literacy in 1981. Since 1989, she has
spent most of her time in combating communal and fundamentalist forces in
India. In 2003 she was one of the founders of ANHAD which administers. It’s
FCRA license was cancelled based on inputs from intelligence agency for using
foreign funding to work against the public interest. She has campaigned against
communalism and violation of human rights in the name of fighting terrorism.
She was involved in exposing what she alleges are terror links of Hindutva
forces but also forces but also fought for the rights of Battla house encounter
suspects who later allegedly joined ISIS. Shabnam Hashmi was amongst nintey-
one women from India who figured in the list of 1,000 women who have been
nominated globally for the Nobel Peace Prize – 2005. Hashmi has focused on
issues of women’s political participation, adoption, gender justice, democracy
and secularism.

The decision of Lakshmi Kant Pandey v. Union of India is a very high

watermark in the development of the law relating to adoption.

International background-
In Unites States, through ICA, the legal transfer of parental rights from birth
parents takes place. ICA opens another pathway to children to receive he care,
security and love that only a permanent family can provide.

Adoption was unknown to common law, and is a creature of statute, the first of
which was the Adoption of Children Act, 1926, now replaced by the Adoption
Act, 1976. The English Court only has the jurisdiction, if the applicant, is in any
part of the United Kingdom and the child is in England.

Judicial Background
Adoption is always been a very crucial subject of discussion. In the regard
Bomabay High Court and the Kerala High Court in various cases have
explained the importance of adoption and right to adopt a child. The Hon’ble
Supreme Court in this case have referred Article 21 and Article 44 of the
Constitution. The Hon’ble Court has explained the importance of fundamental
rights and right to have adopted child.

Facts

1. Specific guidelines were needed for adoption.

2. Shabnam Hashmi, is an Indian Social Activist and human rights campaigner.

She started her social activism campaigning about adult literacy in 1981.

3. She has filed a writ petition under Article 32 of the Constitution..

4. She has requested the court to lay down optional guidelines enabling
adoption of children by persons irrespective of religion, caste, creed etc.

Issues Raised

1. Whether adoption of a child is a fundamental right.

2. In case of contradiction between personal law and secular law, what is going
to be prevailed.

3. Whether caste, creed and religions affects the adoption procedure.

Arguments

Peitioner’s argument
1. Petitioner requested the court to lay down optional guidelines enabling
adoption of children by persons irrespective of religion, caste, creed etc. And
further for a direction to the respondent Union of India to enact an optional law
the prime focus of which is the child with considerable like religion etc. taking a
hint seat.

2. It was also highlighted that as per guidelines of 2011 and JJ Rules, 2017 there
is undue delay in processing of adoption cases at the level of Child Welfare
Committees, the Adoption Recommendation Committees as well as the
concerned courts.
3. It was also argued by the Petitioner that the JJ Act, 2000 is a secular law
enabling any person, irrespective of the religion he professes, to take a child in
adoption.

4. It was also argued that the court should direct the states and UT under JJ Act,
2000 to implement Section 41 of the Act and to follow CARA guidelines.

5. It was also argued that Right to adopt a child is a fundamental right.

Respondent’s argument
1. It is contented that Islamic Law doesn’t recognize an adopted child to be at
par with a biological child. As per Islamic law, it processes what is known as
the “Kafala” system under which the child is placed under a ‘Kafil’ who
provides for the well being of the child remains the true descendant of his
biological parents and not that of the”adoptive” parents.

2. It was also contended that this system is recognized in UN Convention on

Rights of the Child and therefore, directions should be issued to all the Child
Welfare Committees to keep in mind and follow the principles of Islamic Law
before declaring a muslim child available for adoption under Section 41(5) of
the JJ Act, 2000.

Judgment

It will now be relevant to take note of the stand of the Union of India. Way back
on 15th My, 2006 the Union in its counter affidavit had informed the court that
prospective parents, irrespective of their religious background, are  free to
access the provisions of the Act for adoption of Children after following the
procedure prescribed. The progress on the ground as laid before the court by the
Union of India through the Ministry of Women and Child Development may
also be noticed at this stage.

The JJ Act, 2000, as amended is an enabling legislation that gives a prospective

parent the option of adoption an eligible child by following the procedure
prescribed by the Act, Rules and the CARA guidelines, as notified under the
Act. The Act does not mandate any compulsive action by any prospective
parents leaving such person with the liberty of accessing  the provisions of the
Act, if he so desires. 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. To us, the Act is a small step in reaching the goal of
Article 44 of the Constitution. Personal beliefs and faiths, though must be
honoured, can not dictates the operation of the provisions of an enabling statute.

 The decision of this Court in Lakshmi Kant Pandey is a high watermark in he

development of the law relating to adoption. Dealing with inter-country
adoptions, elaborate guidelines had been laid by this court to protect and further
the interest of the child. A regulatory body i.e. Central Adoption Resources
Agency was recommended for creation and accordingly set up by the
Government of India in the year 1989. Since then, the said body has been
playing a pivotal role, laying down norms both substantive and procedural, in
the matter of inter as well as in the country adoptions. The said norms have
received statutory recognition on being notified by the Central Govt. under Rule
33 (2) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and
are today in force throughout the country, having also been adopted and notified
by several states under the Rules framed by the states in exercise of the Rule
making power under Section 68 of the JJ Act, 2000.

Reliance has placed in this regard on the views of the Bombay and

Kerala High Court in re: Manueal Theodore and Philip Alfred Malvin v. Y. J.
Gonsalvis & Ors. Respectively.

Even though no serious or substantial debate has been made on behalf of the
Petitioner on the issues, abundant literature including the holy scripts have been
placed before the

Hon’ble court by the Board in support of its contentions, noted above. Though
enriched by the lengthy discourse laid down before us, we do not think it
necessary to go into any of the issues raised. The Fundamental Rights embodied
in Part 3 of the Constitution constitute the basic human rights which inhere in
every person and such other rights which are fundamental to the dignity and
well being of citizens. While it is correct that the dimensions and perspectives
of the meaning and contend of FR’s, in our considered view, will have to await
a dissipation of the conflicting thought processes in this sphere of practices and
beliefs prevailing in the country. The legislature which is better equipped to
comprehend the mental preparedness of the entire citizenry to think unitedly on
the issue has expressed its view, for the present, by the enactment of the JJ Act,
2000 and the same must receive due respect.

Held- The court is of the view  that the present is not appropriate time and stage
where the right to adopt and the right to be encompassed by Article 21 of the
Constitution. We hardly need to reiterate the well settled principles of Judicial
Restraint, which requires the Court not ot deal with issues of Constitutional
interpretation unless such an exercise is but unavoidable.

Consequently the writ was disposed of in terms of our directions and

observations made above.