In a recent landmark judgment by the Apex Court, Shabnam Hashmi v Union of India (civil writ petition #470 of 2005), the court has held that the provisions of the Juvenile Justice Act,2000, shall supersede the personal laws and any Muslim couple wanting to adopt, can adopt under the provisions of the secular law. Though the court refused to make the right to adopt a fundamental right, it observed that till the uniform civil code comes into existence, the law of the land shall prevail over the personal laws.
Though the Muslim law does not provide for adoption, there are provisions for looking after orphans (kafala) and guardianship whereby, a child in need can be taken care of. In fact, the religion enjoins Muslims to take care of orphans and safeguard their person and property. However, in such cases, the child or ward remains to be a part of his biological family only and does not become equivalent to the biological children of the person taking care of him. He does not have the legal status of an adoptive child that equates him as a biological member of the adoptive family and ends all ties from his biological family.
The Supreme Court's latest judgment will come as a relief for many childless Muslim couples who want to adopt but could not because of the legal restraints. The provisions of the Juvenile Justice Act are secular and enabling in nature and any person wanting to be governed by it can chose the same. It is a personal choice whether a person will go for adoption under this law or decide to adhere to the personal laws. However, for those wanting to adopt, the ruling removes the existing disabilities.
