Muslim family can adopt
M.Sheik Mohammed Ali
(Querist) 17 February 2014
This query is : Resolved
Dear experts
In Tamilnadu Muslim Family (Husband & Wife)
want to adopt her sister daughter, she is 4yrs old, the parents also willing to give,
how to legally adopt to her.
pls give me your suggestions
c n vittal rao
(Expert) 18 February 2014
Muslim personal law does not permit adoption
c n vittal rao
(Expert) 18 February 2014
Muslim personal law does not permit adoption
prabhakar singh
(Expert) 18 February 2014
The concept of adoption is native to only Hindus because of a believe that a father can not get MOKSHA unless on his death he has a son to do KAPAL-KRIYA in absence of which he shall keep on his reincarnation time and again in different YONI OF JIVAS.
ADOPTION IS A CONCEPT FOREIGN TO ALL OTHER RELIGIONS.
HENCE A MUSLIM OR A CHRISTIAN CAN NOT ADOPT WITH THOSE LEGAL RIGHTS A HINDU CAN.
HOWEVER AN ALTERNATIVE IS POSSIBLE.
PARENTS OF DAUGHTER MAY ENTER INTO AN AGREEMENT WITH PROSPECTIVE PARENTS THAT THEY FOR WELFARE OF THE CHILD AND BETTER UPKEEP AND PROPER EDUCATION, WHICH THEY ARE UNABLE TO DO ON THEIR OWN,HANDING OVER LEGAL CUSTODY OF THE CHILD IN HANDS OF PROSPECTIVE PARENTS WHO ARE CLOSED TO THEM BY RELATION.
BUT IT SHOULD BE UNDERSTOOD THAT IT SHALL NOT CHANGE PARENTAGE.CHILD WOULD BE FREE
ATTAINING MAJORITY AND PROPERTY OF PROSPECTIVE PARENTS WOULD NOT PASS ONTO THE CHILD UNDER INHERITANCE LAW OF MUSLIMS UNLESS ROUTE OF HIBBA IS ADOPTED.
ajay sethi
(Expert) 18 February 2014
well advised by prabhakar singhji
Rajendra K Goyal
(Expert) 18 February 2014
Well advised by the expert prabhakar singh ji, agree to it.
T. Kalaiselvan, Advocate
(Expert) 19 February 2014
There are various reverse opinion of writers of mohammadan law about Adoption under Mohammadan Law. Some often have the view that adoption is unknown to Mohammedan law. Justice M. Hidayatullah in his book Mulla Principles of Mohammadan Law has observed that the Mohammadan law does not recognize adoption as a mode of filiations 1. But some of them have the view that where custom is given priority by legislation over general Mohammadan law as in the Punjab, Oudh and some other places a special family or tribal custom of adoption will, if proved, prevail over that law B.R. Verma in his commentary on Mohammadan Law has stated that “Adoption shall not confer upon any person the status of a child except in the cases where subject to the provisions of the Shariat Act (XXVI) of 1957 there is valid custom of adoption and where it is permitted by the provisions of any law for the time being in force.
Rajasthan High court in Nenoo Khan V. Mst. Sugani13, held that by virtue of custom, Muslims might also have system of adoption. In mst. Bibi V. Syed Ali14, the same high court has considered the matter in detail and has come to the following findings:
(i) Adoption is, as a rule, not unknown to Muslim Law.
(ii) By Virtue of Custom Mohammedans many also have the system of adoption.
3. A Muslim who alleges that by custom he is subject of adoption must prove it.
Thus, there is an overwhelming number decisions to support the contention that Muslim Law recognizes adoption by custom.
As per The Muslim Personal Law (Shariat)
Application Act, 1937 and its Effect on Adoption, Which are to be governed by Muslim Personal Law notwithstanding any custom or usage to the contrary. The matters enumerated in this section do not include adoption.
But as a Customary Adoption in Kashmir Valley;
It appears that in the Kashmir Valley, some Muslim families, may be due to the proximity of the Hindu Population, seem to adopt Children, especially if they do not have their own natural born Children.
It can not be said that the Holy Quran Prohibit adoption amongst Muslims in absolute terms. And the Custom of adoption amongst Muslims has been held also the Valid Muslim Personal Law (Shariat) Application Act, 1937 does not abrogate the custom of adoption prevailing amongst Muslims.
It is evident that the role of custom amongst the Muslims, unlike the Hindus, is practically non-Consequential. A custom where is in derogation of Muslim Personal Law, is of no effect. Accordingly the status of an adopted son, even when it is fully established under a custom, is no better than Stranger, because he does not become ipso facto and heir of his deceased adoptive father. Realizing the relevance of the institution of adoption, especially in the case of Child less Couples, the customarily adopted son needs a better deal in the realm of Muslim Personal Law, which can be remedied and improved only through statutory intervention.
the above are excerpts from By Dr. Md. Fayaz Khan, Lecturer, P.G. Deptt. of Law, Patna University, Patna.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 19 February 2014
Apex court has given a JUDGEMENT this week of an EIGHT YEAR old case making adoption by muslims legal.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 19 February 2014
Related news item in HINDI-
नई दिल्ली अब मुसलमान भी बच्चे गोद ले सकेंगे। सुप्रीम कोर्ट ने अपने एक ऐतिहासिक फैसले में मुसलमानों को बच्चा गोद लेने का अधिकार दिया है। मुस्लिम पर्सनल लॉ बोर्ड इस बात की इजाजत नहीं देता।
सुप्रीम कोर्ट ने बुधवार को कहा कि जब तक संविधान की धारा 44 में बताए गए यूनिफॉर्म सिविल कोड को लागू नहीं कर दिया जाता, तब तक देश के कानून को किसी भी पर्सनल कानून से ऊपर रखना होगा।
सुप्रीम कोर्ट की एक बेंच ने कहा कि गोद लेने का अधिकार कानूनन है और कोई पर्सनल लॉ इसे रोक नहीं सकता। यह फैसला सामाजिक कार्यकर्ता शबनम हाश्मी की 8 साल पुरानी याचिका पर आया है। शबनम हाश्मी को जब बच्चा गोद लेने नहीं दिया गया तो उन्होंने सुप्रीम कोर्ट में याचिका दायर की थी।
prabhakar singh
(Expert) 19 February 2014
470 OF 2005 SHABNAM HASHMI VS UNION OF INDIA & ORS. (19/02/2014)
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41234
Para 11"11. The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting 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 parent 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 enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to
say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved.
The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date."
prabhakar singh
(Expert) 19 February 2014
Hence in view of this verdict a Muslim is free to choose to submit himself to a course of adoption given in J J Act 2000 as amended by act of 2006.
Amendment clearly lays"“2(aa)-“adoption” means 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 relation ship"
prabhakar singh
(Expert) 19 February 2014
HENCE NOW ANY ONE CAN LEGALLY ADOPT FOLLOWING RIGHT AND PROCEDURE LAID IN JJ ACT
2000 AS AMENDED BY ACT OF 2006 FROM TODAY 19/02/2014.
T. Kalaiselvan, Advocate
(Expert) 19 February 2014
Well said Mr. Prabakar Singh. there is a practice of adoption as a customary in the Muslim community everywhere, but legally the issue has not been taken up so far like the law governing Hindu religion adoption. As rightly expressed, lets wait for the day of uniform civil code to take birth.
M.Sheik Mohammed Ali
(Querist) 19 February 2014
Thanks for you posting Mr.Prabhakar and T.K.S., Advocate defense.
Devajyoti Barman
(Expert) 19 February 2014
Yes after today's judgment by supreme court the Muslims can now legally adopt a child under Juveniles Justice Act.
