The Supreme Court of India in a landmark order indirectly
pushing for the Constitution-suggested Uniform Civil Code, on Wednesday ruled
that personal law prohibition against adoption would not bar a Muslim from
adopting a child if he chose the secular Juvenile Justice (Care and Protection
of Children) Act route. By this ruling
the minority community can take care and protection of children as adoptive
parents and not as a guardian as was earlier.
Giving the judgment on a PIL filed by Shabnam Hashmi nine years ago, a bench of Chief Justice
P Sathasivam and Justices Ranjan Gogoi and S K Singh said the JJ Act was a
secular law which gave prospective parents the option to adopt a child. "A
Muslim was always free to exercise his option either to adhere to the personal
law prohibition against adoption or choose JJ Act route to take a child into
his/her family," the bench said, adding "To us, the Act is a small
step in reaching the goal enshrined by Article 44 of the Constitution."
Article 44 of the Constitution says, "The State shall endeavour to
secure for the citizens a Uniform
Civil Code throughout the territory of India." The bench said, "The vision
contemplated in Article 44 of the Constitution, that is a Uniform Civil Code,
is a goal yet to be fully reached."
However, the Muslim Personal Law Board had opposed Hashmi's plea for a uniform
adoption law that would prevail over all religious prohibitions. The board gave
their elaborate arguments against permitting Muslims to adopt children.
The board had said that Islam did not recognize an adopted
child to be treated on a par with a biological child. The Islamic law professes
'kafla' system under which the child is placed under 'kafil' who provides for
the well-being of the child, including financial support, and this is legally
allowed to take care of the child though the child remains the descendant of
his biological parents and not of the 'adoptive' parents.
The muslim board attempted to give legal recognition to its
religious 'kafla' system by informing the court that even United Nation's
Convention of the Rights of Child recognized it as an alternative to child care
contemplated under the JJ Act. The court, however, refused to restrain a Muslim
if he/she chose to take JJ Act route to adopt a child on the grounds that the
faith did not permit it.
Justice Gogoi said, "An optional legislation (JJ Act) 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 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 today.
"The conflict in thinking fuelled by dictates of religions was also the reason
why the court felt the time was not ripe to lift the statutory right to adopt
to the level of a fundamental right. It said, "Conflicting viewpoints
prevailing between different communities as on date on the subject makes the
vision contemplated in Article 44 of the Constitution, that is a Uniform Civil
Code, a goal yet to be fully reached and the court is reminded of the anxiety
expressed by it earlier with regard to the necessity to maintain restraint. All
these impel us to take the view that the 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," the court said.
