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SHABNAM HASHMI V. UNION OF INDIA

Shabnam Hashmi v. Union of India (Supreme Court of India, February 2014)

ISSUE:

  • Since there were no civil laws for the non-Hindu adoption, in case of adoption, will the specific Muslim personal law be applied or the common umbrella act of Juvenile Justice Act 2000?
  • Whether the right to adoption irrespective of caste, creed religion be considered a fundamental right applicable to the society homogeneously?

RULE:

  • Article 44 of Indian Constitution
  • Article 41 of Juvenile Justice Act 2000-
    Family and Personal Laws- Muslim Shariat Law for Adoption

FACTS:

  • Shabnam Hashmi visited her first adoption centre in New Delhi’s suburbs; she was told that they didn’t have any Muslim children. Shabman Hashmi who had a son wanted to adopt a daughter to make a complete family.
  • However she learnt that Muslims cannot adopt or be adopted and if they want to do so it can only be done by virtue of The Guardians and Wards Act, 1890, which doesn’t give a legal status of biological parents nor does adoptee have any rights of inheritance. She filed a Writ Petition in the Supreme Court in 2005 to give the Muslim parents the same status as that of a biological parent and to recognize adoption as a fundamental right under Article 21.
  • The judges called the decision to allow the civil rights activist Shabnam Hashmi to adopt a child after an eight-year court battle, “a high watermark in the development of the law relating to adoption.” Shabnam Hashmi was given only a guardianship right on the adopted child who was not recognised equal to a biological child.
  • There were no rights regarding the adoption of children for other religious communities except the Hindus. Being a Muslim, she was subject to the Muslim Shariat Law which did not recognise an adopted child to be on par with a biological child.
  • A PIL was filed under Article 32 of Indian Constitution to lay down guidelines to enable adoption of children by person irrespective of caste, creed and religion.
  • The petitioner in the view of the Juvenile Justice Act 2000 as amended in 2006 stated that the prayer in the writ petition was very well answered in the Supreme Court that Juvenile Justice Act 2000 enables any person irrespective of religion she professes to adopt. She argues that every child in India should have the right to family, explaining that often the child adopted is too young at the time of adoption and does not know about biological parents, adding that its “highly insensitive” to not even let them write the ‘adoptive’ parents’ name.
  • The write petition has also prayed for a declaration that the right of a child to be adopted and that of the prospective parents to adopt be declared a fundamental right under Article 21 of the Constitution.
  • All India Muslim Personal Law Board objected to this plea that under Islamic law adoption is not recognised. Since there was no specific law regarding the adoption by Muslims, the board claimed the personal law to prevail.
  • According to the personal laws, they practice the kafala system rather than legal adoption. Under this procedure the child is placed under the ‘kafil’ (a guardian) who provides the well being of the child financially and legally takes care of him.
  • Further, the Muslim Shariat law doesn’t consider the adopted child to be legally equal to a biological child.
    Also, it considers the adopted child to remain as the true descendants of his biological parents and not the adoptive parent.

HELD:

  • The supreme court held that, the Fundamental Rights embodied in Part-III of the Constitution constitute the basic human rights which inhere in every person and such other rights which are fundamental to the dignity and well being of citizens.
  • While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt or to be adopted to the status of a Fundamental Right, in our considered view, will have to await a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country.
  • The legislature which is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment of the JJ Act 2000 and the same must receive due respect.
    Hence it concluded that present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution.