The Odisha High Court recently said that a Muslim cannot adopt a child of his own free will. However, the adoption of a surrendered child by a Muslim can be done only after following rigorous procedure under the Juvenile Justice Care and Protection of Children Act, 2000, the HC said.
A bench of Justice Subhasis Talapatra and Justice Savitri Ratho said in the order, “There is no practice in Muslim law similar to adoption recognized by the Roman and Hindu systems… Generally in Islamic countries, guardianship is granted instead of adoption.” Is.” minor who is in need of care and protection”.
The court said this while hearing a 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 was 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, under the guise of helping, his sister took one of his daughters and later the sister’s daughter and her husband claimed that They were the adoptive parents of the child.
Furthermore, he submitted that he had been denied meeting with his daughter despite a series of attempts made by him.
On the other hand, the alleged adoptive parents of the minor girl claimed that they had legally adopted the child from the petitioner’s sister.
He submitted that since the biological parents of the child were unable to bring the two girls together, they had voluntarily placed one daughter in the custody of the father’s sister as a kafalah as per Muslim tradition.
Under kafalah, the pre-existing parent-child relationship is not terminated, but a new parent-child relationship is established between the child and the adoptive parent.
The adoptive parents relied on a portion of an article published in the African Human Rights Law Journal (2014) to explain the practice of kafalah.
He presented that kafala is similar to kinship care, to the extent that they both generally promote continuity in upbringing without regard to the children’s cultural and religious background.
He further argued that both kafalah and kinship care thus developed to provide stability and continuity for the child’s progressive growth and development and that kafalah represents an Islamic alternative to adoption.
The petitioner, on the other hand, denied agreeing to any such arrangement and contended that she and her daughter are governed under Muslim law, and as per their customs, adoption is strictly prohibited. Hence, her custody should be transferred to him being her natural guardian, he insisted.
The court noted that it was admitted by the alleged adoptive parents of the child themselves that there is no practice in the Muslim law of adoption.
The HC underlined that instead, Section 47 of the Juvenile Justice Care and Protection of Children Act, 2000 provides for adoption, which is a secular provision.
Further, the court highlighted that Section 2 of the Central Shariat Acts provides that customs or practices relating to adoption are not superseded by the Muslim Personal Law and can only be declared under Section 3 of the Act. provisions of section 2 may be made. Can be applied to a Muslim for the purpose of adoption, bequest and inheritance.
In the present case, the court observed that there was nothing on record to show any evidence of adoption of a minor by the alleged adoptive parents under Section 3 of the JJ Act or the Shariat Act, and no such claim was made . by them before the Family Court where the custody proceedings of the child are pending.
Therefore, in the absence of adoption, the court held the custody of the minor child by the alleged adoptive parents to be illegal custody.
Accordingly, the HC restored the custody of the child in favor of her biological father.