Shabana Hashmi vs Union of India
AIR 2014 SC 1281
Case Summary
[Adoption]
Facts
In this case the petitioner was a Muslim who had adopted a young girl when she was small. She filed the petition for recognition of the right that a person belonging to any religion could adopt a child since the Muslim law did not allow for adoption.
Issues
1. Is there a fundamental right to adopt and for a child to be adopted under Article 21 of the Constitution?
2. Does the Juvenile Justice Act govern the adoption of a Muslim child?
Petitioner's Contentions
The petitioner asserted the right to adopt and be adopted is a fundamental right under Part III of the Constitution. The petitioner argued that the right of a child to be adopted should fall under the ambit of a fundamental right under Article 21 of the Constitution. The petitioner also requested the court to lay down guidelines which would then facilitate the adoption of children in a secular fashion notwithstanding factors like religion, caste, creed etc.
The petitioner also pointed out that JJ Act, 2000 is one such act which facilitates the adoption regardless of religion. It was also argued that this act is similar to the Special Marriage Act, 1954 which provides an avenue for secular marriages and allows inter-religious marriages.
Respondent's Contentions
The All India Muslim Personal Board (AIMPLB) argued that the Muslim Personal Law does not recognise adoption as a concept. Therefore, they argued that declaration of adoption under Article 21 would not be valid. They also did not agree that the JJ Act should be applied. According to the AIMPLB, adoption is simply one of the ways for taking care of the child. There are other modes like foster care and sponsorship which also exist for taking care of an abandoned child. They also brought to the attention of the court the concept of ‘Kafala’ system. Under this system, the child is placed under a guardian-like figure called ‘Kafil’ who would provide for the welfare of the child. This includes both legal and financial care. However, this is different from adoption under Muslim law.
Judgement
The supreme court held that JJ act was an enabling legislation and its aims at achieving the purpose of a uniform civil code. This it was held at any person belong to any religion could adopt a child subject to the rules framed. On the point of giving adoption the status of fundamental right it hesitated but recognised the statutory right to adopt.
Conclusion
The Shabnam Hashmi case is a landmark case because it recognised a way for Muslims to adopt children despite their personal laws prohibiting adoption. This decision is a step forward to achieve the Uniform Civil Code under Article 44, as envisioned by the framers of the Constitution
Nidhi Verma
BBA LLB
Shri Ramswaroop Memorial University
Comments