By Archi Agrawal, HNLU Raipur
Editor’s Note: Rights cannot be limited under the garb of religion. Article 44 of the Indian Constitution enshrines the directive principle that the state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. A civil code consists of laws governing marriage, adoption, succession, etc. The objective of a Uniform Civil Code has not yet been achieved due to communal overtones. People have become resistant to any kind of change in their personal laws, be it for their betterment.
This essay mainly focuses on the need for a Uniform Civil Code in light of the most recent landmark case of Shabnam Hashmi v. Union of India and Ors. There is no general law for adoption in India and the personal laws of Muslims, Christians, and Parsis do not completely recognize adoption. This case dealt with the adoption of a child by a Muslim parent but Islam does not recognize an adopted child at par with a biological child.
This conflict was solved out by the Supreme Court which ruled that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or she follows even if the personal law of the particular religion does not permit it. This is a major step towards the achievement of a Uniform Civil Code. Further, this essay has dealt with how adoption is recognized in Islam and the adoption laws in India for different religions.
Rights cannot be limited under the garb of religion. India is a diverse country accommodating several religions from Muslims to Parsis to Christians with a majority of Hindus. There are always conflicting beliefs and faith among different religious communities about issues of national importance such as marriage, succession, maintenance, adoption, etc. The laws relating to all these issues constitute a Civil Code. Also, Article 44 of the Indian Constitution[i] enshrines the directive principle that the state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.
The need of the hour is to have a uniform personal law for all the religions so that every citizen has the same rights and duties. But currently, we have a uniform personal law only for the Hindus in the form of coded Hindu laws relating to marriage, succession, guardianship, etc. The goal for a Uniform Civil Code has not been achieved yet because this needs a big step from all the religious communities who are still uneducated and have become resistant to any change in their personal laws.
In this essay, we will mainly analyze the decision of the Supreme Court in the matter of Shabnam Hashmi v. Union of India and Ors[ii]. This case deals with the adoption of a child by a Muslim in India. Adoption is not recognized under Islam and the adoptive parent and the adopted child can only have a guardian-ward relationship and not that of a legal parent. But adoption is legally recognized under the Hindu law with the adopted child having all the rights that a biological child has including inheritance.
This leads to a conflict in interests of different religious communities in India. The bench led by Justice P. Sathasivam, Ranjan Gogoi J. and Shiva Kirti Singh J. in the case of Shabnam Hashmi ruled that “Personal beliefs and faiths, though must be honored, cannot dictate the operations of the provisions of an enabling statute.”
The personal law would continue to prevail, but in adoption case, if a member of a minority community takes recourse to the Juvenile Justice (Care and Protection of Children) Act, which is in conflict with the personal law, the Juvenile Justice Act will prevail until such times that the vision of a Uniform Civil Code is achieved.
The Court’s decision is justified as the rights of a citizen cannot be limited under the cover of religion. In the above case also, the decision was opposed by All Indian Muslim Law Board; but being the citizen of the same country, people should be provided with the same rights as others, be it Muslim or Hindu, provided it is not contrary to any of the fundamental rights guaranteed by the Constitution like Article 25 i.e. right to free profession of religion.
We shall also deal with the type of adoption recognized under Islam and other different religions prevalent in India like Christians and Parsis and analyze the difficulties that are obstructing the path of achievement of the directive principle enshrined in the Constitution that is of a “Uniform Civil Code”.
There have been different cases in which parties try to escape under the garb of religious freedom. Here we will mainly analyze the most recent and landmark case of adoption in which the honorable Supreme Court gave the woman parental rights like that of a biological parent irrespective of her religion and personal law under which she is governed, this being a major step towards the achievement of a uniform Civil Code.
The Case of Adoption – Shabnam Hashmi v. Union of India and Ors.[iii]
Since the last two decades, especially since the landmark case of Mohd. Ahmed Khan v. Shah Bano Begum[iv] and Smt. Sarla Mugdal and Ors. v. Union of India[v], the definition of a ‘Civil Code’ has been changing to include personal religious laws, customs, and mores. The object is to bring all communities on a common platform on matters which are presently governed by diverse personal laws but which do not form the essence of any religion.
The Sarla Mugdal case has been considered to be a landmark precedent in the matter of personal laws. It, in a way, secured the position of women, whose husbands in the garb of religious freedom shunned the matrimonial responsibility. The Supreme Court concluded that in the absence of any Uniform Civil Code, the Hindu Law on one hand and the Muslim law, on the other hand, would operate within their respective ambits without trespassing on the personal laws of each other.
The Sarla Mugdal ruling was looked with disfavor in certain circles on the ground that it infringed a person’s fundamental right to freedom of conscience and profession of religion guaranteed by Article 25 of the Indian Constitution[vi]. The matter was brought before the Supreme Court which dismissed the idea. The judgment also talked length about the necessity of a Uniform Civil Code to be implemented in India. It directed the Government of India to file an affidavit indicating the steps are taken and efforts made, towards securing a “Uniform Civil Code” for its citizens.
The most recent case dealing in matters with religious conflicts is the landmark case of Shabnam Hashmi v. Union of India and Ors. This case dealt with the adoption of a child irrespective of the religion to which they belong. The Supreme Court on February 19, 2014, ruled that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or she follows and even if the personal laws of the particular religion do not permit it.
The Civil rights activist Mrs. Shabnam Hashmi being a Muslim, for the past 8 years, waged a dogged battle in the court to be legally recognized as the parent of her adopted daughter, Seher Hashmi Raza. The Human rights activist took Ms. Raza under her custody way back in 1996, when she was just one year old. She had been abandoned by her biological parents at an adoption home in the capital.
Mrs. Hashmi, who had approached the apex court to be legally recognized as the parent of her adopted daughter, was told that there is no law under which non-Hindus can adopt. So she got her under the Guardianship and Wards Act[vii], under which they will only have a guardian-ward relationship.[viii]
But finally, on 19th February 2014 after a long battle, she got her parental rights under the Juvenile Justice (Care and Protection of Children) Act, 2000 irrespective of the religion she follows. But the All India Muslim Personal Law Board opposed to this adoption and contended that Islamic law does not recognize an adopted child to be at par with a biological child.
According to the Board, Islamic law professes what is known as the “Kafala” system under which the child is placed under a ‘Kafil’ who provides for the well being of the child including financial support and thus is legally allowed to take care of the child through the child remains the true descendant of his biological parents and not of the ‘adoptive parents’. The Board also contended that the ‘Kafala’ system is recognized by the United Nation’s Convention of the Rights of the Child under Article 20(3) which is also one of the alternate systems of child care contemplated by the JJ Act, 2000[ix].
Under the JJ Act, 2000 adoption is only one of the methods contemplated for taking care of a child in need of care and protection and Section 41 explicitly recognizes foster care, sponsorship and being looked after by after-care organizations as other/ alternative modes of taking care of an abandoned/ surrendered child. Therefore a direction should be issued to the all the Child Welfare Committees responsible for the adoption process to keep in mind and follow the principles of Islamic Law before declaring a Muslim child available under Section 41(5) of the JJ Act, 2000. But the Court ruled in favor of Mrs. Hashmi with which she got her complete parental rights.
The JJ Act, 2000 by amendment of 2006 defined adoption as “the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship”.
The decision of this Court in the landmark case of Lakshmi Kant Pandey v. Union of India[x]was necessary for the development of laws relating to adoption. Elaborate guidelines had been laid down by this Court to protect and further the interest of the Child. A regulatory body i.e. Central Adoption Resource Agency (CARA) was recommended for the creation and accordingly set up by the Government of India in 1989. The said norms have received statutory recognition as being notified by the Central Government under Rule 33(2) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and are in force throughout the country, having also been adopted and notified by several states.
Also in another case of Manuel Theodore D’Souza[xi], the Bombay High Court permitted the adoption of a child by Indian Christian parents. The Court held that the fundamental right to life of an orphaned, abandoned, destitute or similarly situated child includes the right to be adopted by willing parents and to have a home, a name, and a nationality. The effect of this judgment was that within the jurisdiction of the Bombay High Court, viz. Mumbai, Goa and Dadra & Nagar Haveli, any person can adopt a child irrespective of the religion the adoptive parent professes. This was a very good initiative by the Bombay High Court for the achievement of a Uniform Civil Code.
The JJ Act, 2000, as amended, is enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, rules and the CARA guidelines, as notified under the said Act. A person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him.
The Court said that the JJ Act, 2000 is a small step in reaching the goal enshrined by Article 44 of the constitution. Personal beliefs though must be honored cannot dictate the operation of the provisions of an enabling statute. This would always continue to govern any person who chooses to so submit himself until the vision of a Uniform Civil Code is achieved. This can happen only by the collective decisions of the generations to come to sink the conflicting faiths and beliefs of different religious communities that are still active.
Adoption In Islam
Islam fully supports the concept of helping poor and orphan and taking them under your wings. As far as adoption is concerned there is no difference between Islam and the West. But the difference comes up in the implications and legal consequences of adoption.
In the Western system, adoption does not only mean that a child is given into the care of another person; it also means that the adopted child will carry the family name of the adoptive parent. In pre-Islamic Arabia, the adoption system was similar to what we now see in the West; the child even takes the family name of the adoptive father. When Islam came, it categorically rejected this procedure.
The most famous orphan in Islamic culture is, without doubt, the prophet Mohammed. His father died before he was born and by the age of eight, he lost his mother. He was raised by his Uncle Abu Talib. Also, when Muhammad’s wife Khadijah gave him a slave named Zaid bin Hâritha (Zaid, son of Hâritha), Muhammad freed the boy and raised him as if he was his own son. Thus, the importance of taking homeless children to care for them is well established in Islam. It is really startling to hear Muslims asserting that adoption is prohibited in Islam. The confusion is actually over the precise definition of the term adoption.
The Islam form of “adoption” is called kafâla, which literally means sponsorship, but comes from the root word meaning “to feed.”
According to the Quran, He says:
“Nor has He (Allâh) made your adopted sons your sons. Such is (only) your (manner of) speech by your mouths. But God tells the truth, and He shows the way. Call them by (the names of) their fathers, that is better in the sight of God.”
As the Qur’ân says, calling adopted children by the names of their adoptive fathers is contrary to “the truth,” and therefore, they must be called by the name of their real fathers. This means that adoption does not change the relationship of a person; it does not end the blood relationship between the child and his real parents and siblings, nor does it create a real relationship between him and his adoptive parents and their children. Thus, the rules which apply between blood relatives will still be valid even after adoption like the child will still be mahram and will be eligible to inherit property from his/ her parents. The right of inheritance is based on the uterine relationship in Islam:
“Those related by blood are more entitled to (inherit from) each other in the Book of Allah.”
However, the adoptive parents can always use their discretion to write up to one-third of their estate for their adopted child.
So adoption is allowed in Islam, however, changing the family name of the adopted child is not permitted. Also, adoption does not give the adopted child right to inherit property from the adoptive parents, neither does it deprives him/her to inherit property from his/her real parents.
Adoption In India
There is no general law for adoption in India, yet it is permitted by a statue amongst Hindus and by custom amongst a few insignificant categories of persons. Currently, the adoption under Hindu Law is governed by The Hindu Adoption and Maintenance Act, 1956.
This Act extends only to Hindus which includes any person, who is a Hindu by religion, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,or a Buddhist, Jaina or Sikh by religion, to any other person who is not a Muslim, Christian, Parsi or Jew by religion. It also includes any legitimate or illegitimate child who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jain or Sikh. [xii]
Personal laws of Muslims, Christians, Parsis, and Jews do not recognize complete adoption. As non-Hindus do not have an enabling law to adopt a child legally, those desirous of adopting a child can only take a child under the provisions of The Guardians and Wards Act, 1890. This does not provide to the child the same status as a child born biologically to the family.
This Act confers only a guardian-ward relationship and child cannot take their name and inherit their property by right unlike a child under The Hindu Adoption and Maintenance Act, 1956. This legal guardian-ward relationship exists until the child completes 21 years of age.
Under Muslim law, adoption is the transplantation of a son from the family in which he is born, into another family. In Mohammed Allahabad Khan v. Mohammad Ismail[xiii], it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu system. However, an adoption can take place from an orphanage by obtaining permission from the court under the Guardians and Wards Act.
The personal laws of Christians and Jews also do not recognize adoption and here too an adoption can take place from an orphanage by obtaining permission from the court under Guardians and Wards Act. A Christian has no adoption law.
The general law relating to guardians and wards is contained in the Guardians and Wards Act, 1890. It clearly lays down that the father’s right is primary and no other person can be appointed unless the father is found unfit. This Act also provides that the court must take into consideration the welfare of the child while appointing a guardian under the Act.
Having discussed the various cases of adoption calling for a uniform civil code and laws related to adoption, we will now analyze the need of a Uniform Civil Code as enshrined in Article 44 of the Constitution and difficulties coming across the path of a Uniform Civil Code in India.
Uniform Civil Code
The term Civil Code is used to cover the entire body of laws governing rights relating to property and otherwise in personal matters like marriage, divorce, maintenance, adoption, and inheritance. There are different laws governing these aspects for different communities in India. The demand for a Uniform Civil Code essentially means unifying all these “personal laws” to have one set of secular laws dealing with aspects that will apply to all the citizens of India irrespective of the community to which they belong.
Article 44 of the Indian Constitution enshrines the directive principle that the state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. On the road to secularism, Indian democracy took an important step by enacting different bills relating to personal law of Hindus and thereby constituting a new Hindu Code. The adoption of the Hindu Code by the Indian Parliament constitutes an important step taken by Indian democracy in secularizing the outlook of the Hindu community and assisting the creation of a new social order within the community itself.
The view which former Prime Minister of India Pandit Jawaharlal Nehru took on this issue was that if the government could take all steps at once, it was better to take the first essential step by secularizing the personal laws of Hindus.
Nehru thought that whereas in consequence of the dedicated efforts of many social reformers amongst the Hindus, the Hindu community had been intellectually prepared for the acceptance of the secular concept of the personal law, the Muslim community, unfortunately, had not been so prepared and so he decided that it would be better to take the first step, then educate the Muslim masses, and follow up the first step by introducing a common Civil Code which would take in all the other communities including the Muslims. So only the personal law of Hindus was coded in 1955.[xiv]
Now the question arises even if a Uniform Civil Code is formulated, would it affect personal laws of only one community? No, not at all. The perception that a Uniform Civil Code would necessitate changes in only Muslim or Parsi community is quite incorrect. As women’s organizations and others have repeatedly pointed out, personal laws governing different communities in India have a common feature i.e. they all are gender biased. For instance, the law pertaining to succession among Hindus is unequal in the way it treats men and women.
A truly modern, secular, non-discriminatory and progressive code would, therefore, mean changes in all personal laws. The concept of the “Hindu undivided family”, at least so far as it pertains to succession, would obviously have to undergo a change under the uniform civil code. Similarly, Muslim, Christian and other personal laws too would have to change. This also explains why historically changes in personal laws have been resisted not just by one community, but by the ruling orthodoxy in all of them.
Also, fear is expressed by a lot of people that if Article 44 is implemented, it would wash away the separate identity of the minority communities in India. This fear is totally unfounded as there are Articles 25, 26 and 27 of Indian Constitution that are meant to protect one own’s religion, religious beliefs, and sentiments.
Justice Beg, former Chief Justice of India, during his lecture on ‘Impact of Secularism on Life and Law’, has made remarkable observations in the context of this issue. He concluded that the very Provision in the Hindu Succession Act, 1956, that is applied to Buddhists, Jains & Sikhs, but not to Muslims, Christians, Parsis & Jews, is inconsistent with the Directive Principle in Article 44 of the Indian Constitution.[xv]
Another question being what had prevented the formulation of a Uniform Civil Code from coming into being? The reason this has been difficult to achieve has been because most parties have held the view that the reform of laws pertaining to the personal domain is better done by pressure for such change from within communities rather than as an imposition from above. Further, for historical reasons, the demand for a uniform civil code has acquired communal overtones which have overshadowed the innate merits of the proposals by different organizations and activists.
Even in the most recent case of Shabnam Hashmi, the issue of adoption by a Muslim raised by the activist Shabnam Hashmi which was strongly opposed by the All India Muslim Personal Law Board. Still, people are uneducated and are attached to their personal laws so much they have become resistant to any kind of change, be it for their betterment. This has been the major problem in the formulation of a Uniform Civil code for India as directed by Article 44 of the Constitution which would include laws relating to marriage, succession, adoption, inheritance, etc.
Also, it should be added that Article 44 of the Constitution is by no means the only directive principle to have not been implemented more than half a century after it was laid down. Most of the directive principles continue to remain pious doctrines rather than law of the land as these are enforceable by Courts and are the guidelines for proper functioning and governance of the country.
The object behind Article 44 is to effect an integration of India by bringing all communities on a common platform on matters which are presently governed by diverse personal laws but which do not form the essence of any religion. It is hoped that despite the odds stacked against it, the uniform civil code will one day become reality. It is also heartening to see many pleas for a uniform civil code by people of different religions and the role of Court in it. This broadens the scope of the discussion of several issues brought before the Court.
The matters like adoption as observed in the case of Shabnam Hashmi and Manuel Theodore are secular in character and are outside the legitimate domain of religion as contemplated by Article 25 and 26 of the Constitution. The non-implementation of the provision contained in Article 44 amounts to a grave failure of Indian democracy and the sooner we take suitable action in the matter the better it would be. In the process of evolving a new secular social order, a Common Civil code is a must. The idea of the Common Civil Code postulates that the Common Civil Code will, like all other laws, be applicable to the Indians being the citizen of the same country.
People’s right should not be denied under the cover of religion. Being citizens of the same country they should be provided with equal rights irrespective of their religion and personal laws. This is the objective of Article 44 of the Constitution i.e., to formulate a uniform civil code. It is agreed that this change cannot be brought all together but let’s not get stagnant and be progressive and try to bring this change step by step. This can only be done with the help of its people and government. This is not the cry of only a Hindu or Muslim, but of the whole nation.
Thus, the whole nation needs to get out of the controversy surrounding this issue of ‘Uniform Civil Code’. Uniform Civil Code, as dreamed by article 44 of the Constitution, is need of the hour. If we are to stand as one nation, is secularism is to be honored and followed in its real sense, there is no alternative to the Uniform Civil Code.
Before parting I would like to quote Chief Justice Chagla, an eminent Muslim Judge:
“An (Article 44) is a mandatory provision binding on the government. The constitution was enacted for the whole country, it is binding on the whole country, and every section and community must accept its provisions and its directives.”
Formatted on March 15th, 2019.
[i]Constitution of India, 1950.
[ii]( 2014) 4 SCC 1
[iii] Supra note 2.
[iv]1985 SCR (3) 844
[v]1995 AIR 1531
[vi]Supra note 1.
[vii]The Guardians and Wards Act, 1890
[viii]Sidharth Pandey, “When it comes to adoption, religion no bar: Supreme Court”, NDTV, February 20, 2014
[ix]Juvenile Justice (Care and Protection of Children) Act, 2000
[x]AIR1984 S.C. 469
[xi]2000 (2) Bom.C.R. 244
[xii] Paras diwan, Family Law (Allahabad Law Agency, Faridabad, Seventh edition, 2005)
[xiii](1886) ILR 8 All 234
[xiv] Justice P.B. Gagendragadkar, “Common Civil Code- A must”, Bhavan’s Journal 1971
[xv]Amit Abhyankar, :”Uniform Civil Code- A legal Perspective”, available at: http://amitrahul.wordpress.com/2006/09/12/uniform-civil-code-a-legal-perspective/ (Last Visited March 29, 2014)