No provision for adoption under Muslim Personal Law; procedure prescribed under JJ Act must be followed: Orissa High Court

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The alleged adoptive parents of the 12-year-old Mulsim girl claimed that her custody had been transferred to them as per the Muslim tradition known as Kafalah.

The Orissa High Court recently observed that a Muslim cannot adopt a child at his/her whim.

Adoption of a surrendered child can be done by a Muslim only after following the stringent procedure as laid down under the Juvenile Justice Care and Protection of Children Act, 2000, said the court.

The bench of Justice Subhasis Talapatra and Justice Savitri Ratho noted in the order, "There is no practice in the Mohammedan Law, similar to adoption as recognized by Roman and Hindu system...generally in the Islamic countries instead of adoption the guardianship is provided to a minor who needs care and protection".

The court observed so while dealing with a writ petition filed by the father of a 12-year-old Muslim girl to restore her custody in his favour. 

The father had alleged that his minor daughter had been forcibly confined and illegally detained by his niece and her husband. 

He claimed that since he was not doing well financially when his twin daughters were born, in the garb of offering help, his sister took his one daughter and later the sister's daughter and her husband claimed that they were the child's adoptive parents. 

Further, he submitted that he had been denied to meet his daughter despite series of attempts made by him.

On the other hand, the alleged adoptive parents of the minor girl claimed that they had lawfully adopted the child from the sister of the petitioner.

They submitted that since the child's biological parents were unable to bring up two girls together, they had voluntarily placed one daughter in the custody of the sister of the father as per the Muslim tradition known as Kafalah.

Under Kafalah, the pre-existing parent-child relation is not terminated but a new parent-child relationship is established between the child and the adopted parents.

The adoptive parents placed reliance on a part of an article published in African Human Rights Law Journal (2014) to elucidate the practice of Kafalah.

They submitted that Kafalah is similar to kinship care, to the extent that they both generally promote continuity in upbringing in relation to the children’s cultural and religious backgrounds.

They further argued that both Kafalah and kinship care are thus developed to provide stability and continuity for the progressive growth and development of the child and Kafalah represents the Islamic alternative to adoption.

On the other hand, the petitioner denied agreeing to any such arrangement and contended that he and his daughter are governed under Mohamadden law, and as per their custom, adoption is strictly prohibited. Therefore, her custody should be transferred to him being her natural guardian, he pressed. 

Court noted that it had been admitted by the alleged adoptive parents of the child themselves that there is no practice in the Mohammedan La of adoption. 

Court underscored that instead, in Section 47 of the Juvenile Justice Care and Protection of Children Act, 2000, there is a provision for adoption, which is a secular provision. 

Moreover, court highlighted that Section 2 of the Central Shariat Acts provides that customs or usages relating to adoption have not been superseded by Muslim Personal Law and it is only by making a declaration under Section 3 of the said Act that the provisions of Section 2 can be made applicable to a Muslim for the purpose of adoption, wills and legacies.

In the case at hand, court noted that there was nothing on record to show any proof of adoption of the minor by the alleged adoptive parents under the JJ Act or under Section 3 of the Shariat Act and also no such averment had been made by them before the family court where the child’s guardianship proceedings are pending. 

Therefore, in absence of adoption, court held the custody of the minor child by her alleged adoptive parents as illegal detention. 

Accordingly,  court restored the child's custody in favour of her biological father. 

Case Title: Nesar Ahmed Khan v State of Orissa & Others