Author: Tanisha Thakur, a student from Symbiosis Law School , Nagpur
6TO THE POINT
The case Shabnam Hashmi v. Union of India of the year 2014 was a landmark case for adoption of a child in the matters of Muslim people despite where their personal laws prohibited adoption. In India, adoptions are regulated and monitored by the Central Adoption Resource Authority (CARA) both in-country and inter-country so that there is a smooth functioning in the process of adoption and thereby the process is totally transparent.
ABSTRACT
If one look into the process of Adoption from the perspective of past then it has to a great extent became easier by just involving Registration – Filling out the essential and relevant documents, Home Study – Conducted to see the suitability of the adopting parents, Referral – CARA refers a child to the adopting parents, Adoption Order – Adoption is completed by the order from the court. Section 6 to Section 11 of THE HINDU ADOPTION AND MAINTENANCE ACT,1956 deals with the criteria or requisites of a valid adoption for a child and the for the adopting parents and a major requirement if the age difference. Adoption makes the adopted child his or her adoptive parent’s lawful child by giving the child all the rights and privileges as well as the responsibilities that of a biological child.
FACTS OF THE CASE
Shabnam Hashmi being a well-known human rights activist, the petitioner, filed a Public Interest Litigation (PIL) under the Article 32 of the Indian Constitution, arguing that according to PART III of the Indian Constitution, every Indian Citizen has the basic right to adopt a child thereby irrespective of their particular gender, religion, caste, or other factors. Right to adopt a child applies to each and everyone equally. The case came into highlight because of the fact that the adoption in India is mostly governed by the personal laws of the Indian citizens which thereby creates loopholes or inconsistencies in the process of adoption.
Shabnam Hashmi being a Muslim woman wanted to adopt a small girl child whom she was taking care of since long time but somehow adoption under Muslim personal Law was not recognized same as under Hindu Law. Rather than a child being adopted, Muslim Law allows only Kafala which is known as Guardianship and thus does not give full parental status. When she initiated the procedure of adoption, she faced a lot of difficulties as there wasn’t any uniform adoption law that ruled the adoption for the Muslim people like Hindus were ruled by the Hindu Adoption and Maintenance Act, 1956 (HAMA) which grant Hindus with full parental rights of an adopted child. Earlier the Muslims were used to rely on the Guardians and Wards Act, 1890, for adoption which did not grant them with the proper legal right that of a HAMA. The Legal argument was that the Juvenile Justice Act 2000 gives each and every person a right to adopt a child regardless of their religion as it is a secular law. In the petition, she made the point that right to adopt is a fundamental right. Additionally, the petitioner asked the Court of Law to lay down certain Guidelines in the aspect of the adoption of a child for the individuals or couples who are adopting the child and specifically the guidelines should be equal for all in the aspect of creed, caste, religion, etc.
PROCEDURAL HISTORY OF THE CASE
The case Shabnam Hashmi v. Union of India 2014 stands as a landmark case that derives the right of the individuals to adopt irrespective of their religion under the Juvenile Justice (Care and Protection of Children) Act, 2000. The case initiated as by
- Filing of the Write Petition (Public Interest Litigation) 2005: –
Shabnam Hashmi filed a Public Interest Litigation (PIL) under Article 32 of the Indian Constitution stating that there should be recognition of adoption to be as a Fundamental Right and argued that the Muslims should also be allowed to adopt a child with proper and full legal parental rights and not just guardian rights.
- Arguments and Proceedings: –
The petitioner argued that the existing Law was Discriminatory on the ground of religion and was violative of Article 14 of the Indian Constitution as well as Article 21. In contrary, there were many religious organizations and the union of India opposed the plea made by the petitioner arguing that personal law should be respected and it should not be imposed for the aspect of adoption.
- Judgement: –
The Supreme Court Delivered the Verdict on February 19,2014 ruling that –
The Juvenile Justice Act, 2000 allows every individual to adopt without any condition of religion. Adoption stands out as a statutory right and not a Fundamental Right and Muslim Personal Law does not overrule the secular adoption law given under the Juvenile Justice Act, 2000. Lastly, the Court gives the Citizens the right to choose between the Personal Law or the Juvenile Justice Act,2000(For Full Adoption).
ISSUES RAISED
The legal issues raised in this case were as follows:
- Whether the right to adopt a child should be consider as a Fundamental Right under the Article 21 of the Indian Constitution?
- Whether the adoption laws be applicable to each and every individual uniformly regardless of their religion?
- Whether the Juvenile Justice 2000 (JJ Act) prevail over the personal laws to allow the adoption for all religions.
USE OF LEGAL JARGON
The Rules which the Supreme Court used to decide this case are as follows: –
- Juvenile Justice (Care and Protection of Children) Act, 2000
SECTION 41 – This section allows each and every individual to adopt a child rather than looking into its religious beliefs or any other aspects under the statutory framework. The Court ruled that the JJ Act is a secular Act and it does not discriminate among the people and surely provides an alternative route for adoption.
- Constitution of India
ARTICLE 14 – Article 14 state right to equality where the petitioner argued that denying adoption rights to Muslims and easily available to others was a total discrimination for them.
ARTICLE 21 – Article 21 states right to life and personal liberty where the court held that adoption stands as a part to live with dignity and it is a right to everyone but the court clarified that it is not a fundamental right.
- Personal Laws Like
- Muslim Personal Law (Shariat) Application Act,1937
There is no concept of full legal adoption with all the parental right given to the person adopting rather than that they are granted with guardianship that is Kafala which further means that the child does not inherit the guardian’s property by default. The Supreme Court ruled that the personal law does not overrule the Juvenile Justice Act, 2000 and thereby leaves the individual with the opportunity or choice to adopt under a secular law.
- Hindu Adoption and Maintenance Act, 1956 (HAMA)
This Act provides a separate legal identity to the child being adopted and the grants all the parental rights of the adopting parents among the Hindus
- Precedents
The Court used the reference of certain previous cases on based on secularism and personal laws, stating affirmingly that statutory laws can effectively provide the individual an alternative remedy without going outside of the purview of the religious. The debate of Unifor Civil Code (UCC) was acknowledged but it did not rule upon.
THE PROOF
The petitioner asked for the optional guidelines for the adoption of a child and that should free from any type of discriminatory factors like religion, caste, creed. In furtherance, the petitioner urged the court of law to direct the Union of India to create an effective and efficient Law regarding the welfare of the child being adopted without looking into the child’s religion. The petitioner made a point out that there was a significant delay in the process of adoption at various level which further included the Child Welfare Committees, Adoption Recommendation Committees and the Courts. The major emphasis was on the Juvenile Justice Act, 2000 and considered it to be a secular law, allowing every individual to adopt a child, irrespective of any religious affiliation. The argument made the by the petitioner were for the purpose that the court should instruct the states as well as the union territories which are governed by the Juvenile Justice Act, 2000 to implement the Section 41 of the same Act and should surely adhere to the Central Adoption Resource Authority (CARA). The petitioner in the case Shabnam Hashmi v Union of India later contended that the right to adopt is a Fundamental Right.
As per the Islamic Law, the child is placed under ‘Kafil’ because it is according to the ‘Kafala’ system which provides the well-being of the child and due to which the child remains with the true descendant of his biological parents and thus not with the adoptive parents.
JUDGEMENT OF THE CASE
In the Judgment , back in the time on 15th May, 2006, Union in its counter affidavit informed that adopting parents have access to the Juvenile Justice Act, 2000 so that they can adopt without any condition of religion background and can fully be the parent through the procedures prescribed. This Act grants the prospective parent an option to adopt an eligible child through the procedure prescribed and followed y the Rules and with CARA guidelines and the Act does not mandate anyone to do any act compulsively thereby giving every individual a liberty for accessing the provisions of this Act. Such free nature grants that particular person a chance to adopt a child freely without any complications faced towards him or her.
In the Case of Lakshmi Kant Pandey v Union of India, 1984, the Supreme Court laid down the proper guideline and the procedure that is to be followed in case of adoption of a child by the foreigners. The court in this case recognized that the Children are the national and the important asset of the Country and therefore their future well-being is way more important and it is very pivotal that how are the children brought and how are they being treated. That is when CARA came into existence and laid down certain recommendation in the year 1989 and since then it is play very essential role in the aspect of the creating various norms regarding the matter of both within the country as well as outside of the country of adoption. The norms created by the CARA were recognized on being notified by the Central Government under the Rule 33 (2) of the Juvenile Justice Act, 2000 and thereby many other rules being made under the power of Section 68 of the Juvenile Justice Act, 2000.
Thus, the Supreme Court held that the adoption is a right to the citizens without any discrimination on the basis of caste, creed, and religion. The bench permitted to adopt the child without any difficulties in the Juvenile Justice Act, 2000. The plea given by the petitioner was accepted by the Court of Law even though the petitioner didn’t provide with any sort of evidence, and the court affirmed that the right to adopt a child comes under the purview of Indian Constitution Part III Fundamental Right. Everyone has and will always have the right to adopt an eligible child with the due procedure as well as the formalities given under the respective Act. The benches further elaborated that the Muslim Personal Laws do not recognize adoption neither do they prohibits any childless couples to adopt a child and take care of the child. Therefore, whenever and whosoever adopts a child are thereby regarded as the parents of the and not as the guardians of the same under the Juvenile Justice Act, 2000 and thus it is allowed and permitted to adopt a child without any specified declaration made in the particular personal laws. Every couple and individual have the right to adopt a child and they can adopt a child whenever and wherever.
CONCLUSION
In Conclusion, the case Shabnam Hashmi V Union of India ruled that a person can adopt a child irrespective of their religion, caste, creed under the Juvenile Justice (Care and Protection) Act, 2000. Additionally, the case gave a statement that the personal law will not stop or create a bar between adoption and religious belief of any person anymore. The Juvenile Justice Act, 2000 is an important Act which stands out as a secular Act as well and gives the person a right to adopt any child freely and become its full parent with all the parental rights and the child becomes same as the biological child. This has allowed many childless couples a willful joy into their livelihood and helped many orphaned children to find a suitable place like home and a family where they can be brought up in a great manner and can get everything, they need for their day-to-day survival. In this Case, Shabnam Hashmi when first went to the Court to get the adoption of that little girl in the year 2007, got only the guardianship of the girl which ultimately disappointed her and because of which she went again to ask the court of law the full legal parental right of the little girl and become her mother which ultimately, she became. Due this act by Shabnam Hashmi, the court directed the Union to make guidelines because of which there is welfare mechanism for the adoption. Lastly, adopting a child saves the life of the child as well as the several parents who are childless can save their emotions and material strength.
FAQ
1. What is the Shabnam Hashmi v. Union of India case about?
This case addresses whether the right to adopt a child in India is governed solely by personal religious laws or whether a secular law can also provide such a right irrespective of religion.
2. Did the Court overrule Muslim personal law?
No. The Court clarified that while personal laws remain intact, individuals who choose to adopt under the secular JJ Act cannot be denied the right to do so. It essentially provides an enabling option rather than an imposition.
3. What legal principles were reinforced in this judgment?
The Court emphasized the primacy of constitutional rights (like equality and the right to life) over personal laws when it comes to individual choice, and reinforced that secular laws can coexist with personal laws, offering alternative routes.