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Adoption in Islam: Some issues

M. Moazzam Husain
ISLAM. to begin with, does not recognise adoption so as to create a relationshp U parentage. Nor does it confer any status, rights of inheritance or other rights on the adopted sen The whole Muslm jurisprudence being based on a dfferent conception of legitimacy. adoption is. therefore, out of place m ft ((AIR 1922 PC 159). Inthepre-Isiamc days adoption was common n Arabia The object of adoption was neither religious nor for acceptance of the adoptee as member of the adoptwe father's famiy. In those days the Arabs used to adopt other's sens with a view to strengthening their manpower for wars with their enemies According to Ta yabj It must have been a source in those unsettled times to have sons real cr adopted, able to bear arms."
The Holy Qur'an (Sira 33 ayat 4) expressly disapproves adoption as a mode of takng other's sen as one's own. For the sake of canty, we can better take recourse to the widely acc'aimed Erg ish translation of the Qur’an by .Abdulah Yusuf Ai entted - "The Holy Qur'an-Text translation and commentary. “The English rendering cf the ayat as found therein reads * Alah has not made fcr any man two be arts in his one body, nor has He made your wife whom ye divorce by Zhar your mothers nor has He made your adopted sons yoir sons. Such is (only) your (manner of) speech by your mouths. But Allah lets (you) the truth, and He shows the (right) way.* The note thereunder goes as folows: If a man called another's son hrs son it mght create compcatcns with natural and normal relationships if taken too literally It is pointed out that it s only a facon de patter m men's mouth, and should not be taken Iterafry. The truth is the truth and cannot be altered by men's adopting sons." The consequence is that adoption in its technical sense is U Ms lame.
“Ackrxiwiedgement“ in Muslm law though presents a fant semblance w£h adoption in Hindu law < is in fact substantially dfterent Muslm law has made a special prevision for confemrg legtmacy on or rather recognising the legitimacy of a child, son or daughter, by the doctrne of acknowledgement. Where the paternity of a child, that 6 a legitimate descent from hts father cannot be proved by establishing marriage between his parents at foe time of hisconception or birth Muslim law recognises acknowledgement as a method through which such mamage and legitimate descent can be established. The Pnvy councf has pointed out that when a man and a woman have Ived together fcr number of years as Husband and wife law presumes in favour of mamage and against concubinage and an acknowledgement involves the asserton that the father was married to acknowfedgee's mother ((AIR 1916 PC 27). So when a man has n his favour a good acknowledgement of legitimacy the mamage between his parents wll be held to have been proved and legitimacy established unless the mamage has been dsproved. It is. therefore, dear that where the paternity of a child cannot be proved by establishing the mamage between its parents at foe time of its conception or brth Muslm law recognises acknowledgement as a method whereby such mamage and legitimacy of the chid can be established. Acknowledgement of parentage proceeds upon the theory of actual descent of the acknowledged child from foe father who acknowledges it (1888)10AI289(FB).
The legal effects of a valid acknowledgement are: a) the child so acknowledged turns into the legitimate issue of the acknowledger and its paternity ts establshed b) as a legtmate issue the child ts entted to inhent the properties of the ackrrwledger. its mother and other relations c) the acknowledgement establishes a lawful mamage between the child’s mother and the acknowledger and foe mother gets the status of the wife of the ackncw'edger with all legal rights incidental to a wfe.
The fundamental difference between adopton and acknowledgement are: n adoption there isgift of the child by the natural parents to the adoptive parents but acknowledgement is an act of the father recognising hs child whose legtmacy 6 otherwise clouded by absence of mamage between him and the child's mother. While the basis of acknowledgement is real paternity of the chid as a Muslim never acknowledges another's chid as hts own. in case of adoption another's child is adopted.
In spite of the poston of the Muslim personal law n respect of adopbon the customs of adopton prevais among many secttons of Musims in the subcontinent Such Custom is found to prevail in the Punjub (AIR 1936 Lah 80) Sind (AIR 1925 Sind 207) and Amer (11. IC 670). In some cases rght of adoption is permitted by law. Thus n Oudh a taluqdar ts permitted by Section 29 Cfodh Estates Act to ad optason(AlR 1932 PC137). In seme cases con vert from Hndusm have retained the custom of adoption. But there is no presumption that a Hndu converts to Islam has such custom. The burden of proving that the custom has been retained lies in those who assert it (10IC816). Where custom isgwen pnorty by legislation over general Muslm law a special family or tnbai custom of adoption will, if proved, preval over the law.
Tre Muslm Personal Law (Shanat) Application Act 1937. shortly the Shanat Act" was enacted for application of the Muslim personal law to the Muslims in India which by and large abrogated the customs and usage of adoption hitherto prevailng in different classes of Muslim famfies and tnbes of India in isolated form.
Section 2 of the Shanat Act provides that n all question (save the agncutural land) regard ng ritestate succession, speaal property of females including personal property inherited or ebtaned under contract or gift or any other provision of personal tew. marriage, dissolution of mamage including talaq. la. ztiar. Ian. khuta and mubarat, maintenance, dower, guardianshp, grfts. trusts and wakfs (other than chanty and charitable institutions and chartabte and relgous endowments) the rule of decision in case where the partes are Muslm shall be the Muslim personal tew (shanat). Section 3 (1) of the Act says-(1)Any person who satisfiesthe prescribed authorty -(a) that he ts a Muslm b) that he is competent to contract within the meant ng at Secton 11 of the Contract Act, 1872 and c) that he is resident of Bangladesh may by declaration n the presenbed form and filed before the prescribed authority declares that he desires to obtain the benefit of the provision of this section and thereafter the provision of Section 2 shall apply to the declarant and all his mnor children and their descendant as if in addition to the matters enumerated therein adoption. wiBs and legacies were also specced.
The Shariat Act 1937. brought about a uniformity of law among the Muslims in matters of the subjects enumerated in Section 2 of the Act. But a bare reading of 3(1) of the Act suggests that an option fora Muslim ts left open for a declaration that he wants to take the benefit of sa>d section m which case the provisions of Section 2 shall apply to him and his descendants as if adoption. w*s and legacies were specified therein along with the matters enumerated.
Taking the advantage of legislative options the families and tribes having long prevaAng customs and usage of adoption might be continuing as isolated cases with their custom of adoption. That too has been, for all practical purposes, abrogated by the Shariat Act 1937. The landscape of law governing the question of adoption by a Muslim suggests a clear disapproval to it particularly in its technical sense. In Islam it does not create any filial status, duties or obligations, therefore, unmeaning.
Islam is opposed to adopbon in its technical sense not against eternal flows of love and affection in human being. Any Mushm man or woman can wel raise another's child with all care, affection and love so as to generate Filiation that surpasses the question of status. inheritance and other rights available to an adoptee. After al love is divine.
The author is an Admcale. Supreme Court.