ANALYSING THE SCOPE OF A UNIFORM ADOPTION CODE IN THE CONTEXT OF MUSLIM PERSONAL LAW BY - SHIVANGI B
ANALYSING THE SCOPE OF A UNIFORM
ADOPTION CODE IN THE CONTEXT OF MUSLIM PERSONAL LAW
AUTHORED BY – SHIVANGI B
Introduction
Multicultural accommodation is present in the very
roots of our constitution. From rights which promote pluralistic form of
religious freedom to its liberal framework ensuring maximum protection of
cultural rights to minorities, Indian laws hold a noteworthy global reputation
when it comes to protection of cultural practices without the compromise of
constitutional values. So what happens constitutional values go against these
personal laws? A similar question was raised with the introduction of the Adoption
Bill, 1972.
The bill was a part of the Uniform Civil Code, that
was later rejected by the AIMLPB (All India Muslim Personal Law Board) after
being proposed in the Rajya Sabha. The Uniform Civil Code as promised under
Article 44 of the constitution is a partially-forgotten secular set of laws
which, if codified, promises to promote unity among citizens irrespective of
their religion in various civil matters. The proposal for a unified code of
personal laws regarding matters was frequently brought up in the legislature
ever since the Constitution came into force but was not enacted due to constant
uproar from the Muslim community for being violative of Article 25. The
adoption bill was an attempt to fill the gap for an actual codified law for
adoption other than the Guardian and Wards Act, 1890, and it focused on the
welfare of children. It aimed to remove differences between Hindus and all
other faiths with regard to the adoption procedure. Since the concept of
adoption is not recognized under Islam and the prevalence of personal laws
regarding guardianship, the AIMPLB considered the new reform to be unnecessary.
Since then, there has been no judicial participation about this matter.
However, few questions pertaining to this still remain unanswered. This paper
attempts to find out whether it is plausible to introduce a uniform code for
adoption in these conditions.
RESEARCH QUESTIONS
·
Is there a valid legal justification for
the rejection of the Adoption bill, 1972 under UCC?
·
Is there a necessity for new reforms
regarding adoption laws with regard to the current Muslim Personal laws?
·
Is it possible to reintroduce the uniform
code for adoption under Islamic law without any form of constitutional
compromise?
RESEARCH OBJECTIVE
The primary objective of this
research is to investigate the feasibility and implications of establishing a
uniform code of adoption in India, with a specific focus on ensuring compliance
with Article 25 of the Constitution, which safeguards the right to freedom of
religion.
HYPOTHESIS
The study posits that developing a
uniform adoption code in India, respecting the tenets of Article 25
safeguarding religious freedom is viable. Furthermore, it is anticipated that a
well-crafted uniform code can reconcile religious freedoms with a consistent
framework, promoting the welfare of adopted children in India.
RESEARCH METHODOLOGY
Doctrinal methodology of research has been adopted
for this paper. The collection of data
and information is from published papers, relevant articles, relevant cases,
Google books, Legislations, Treaties, and internet websites.
Rejection of the adoption bill and the validity of the
given legal justification
The All-India Muslim Personal Law
Board which consists of members from the Muslim community. In its first
historic Convention “Uniform Civil code, Adoption Bill 1972, Protection of
Islamic Shariah” they urged that adoption is not a part of Islam and thus
created a block for the consideration of the adoption bill. The legislature has
not considered this bill ever since. In addition to that, both the Judiciary
and executive seem to have taken the egalitarian approach to leave communal
matters to the community; however, this deviation can cost us the welfare of
ill-fated children. Article 25 of the Constitution promises freedom of
conscience, practice and propagation of religion and the Supreme Court further
strengthened the article by ensuring that the State cannot interfere with
matters which are essential to the religion. However, is rejecting adoption essential?
Article 25 was previously highlighted
when the apex court held that the right to excommunicate is considered as a
fundamental right pertaining to the religious belief of the Dawoodi Bohra
community. An assurance was given to the Muslim community that “laws
providing for social welfare and reform are not intended to enable the
legislature to reform the religion out of existence or identity”[1] and
that article 25 and 26 not only protects freedom of opinion, but also religious
activities and traditions and that it is the denomination itself which has a
right to determine the essential parts of its religion.[2]
Islam
which essentially means “submission to God” has derived from the Arabic
translation of the word “peace” and it demonstrates peace and tolerance as its
main virtue. Renowned author of Islamic
jurisprudence, Asaf Ali Asghar Fyzeew once said,
“In order to understand Islamic law, one has to be familiar
with historic and cultural background of the law”.[3]
Under Article 25 it was held that religion
is not confined to religious belief but includes the practices which are regarded
by the community as part of its religion and that for deciding whether
something in an integral part or not will always depends upon the evidence
adduced before it as the conscience of the community and the tenets of its
religion.[4]
To truly understand what the community holds
to be integral, it is important to look into the cultural background. The
practice of adoption was not always met with denial in the Islamic community. The
Prophet Mohammad himself took Zaid, the son of Haris in adoption which also led
to other pre-Islamic followers to be inspired to do the same. Similarly,
adoption was glorified in the commentary of Holy Quran by Mushaf Al-Madinah
An-Nabawiyah (Outlines of Muhammadan law n(32) ). One excerpt from the glorified interpretation
is,
“The reference is to the Muhajirin and
the Ansar, the Emigrants and the Helpers, the people who forsook their homes
and adopted voluntary exile from Makkah in company with their beloved Leader,
and their good friends in Madhinah, who gave them asylum and every kind of
assistance, moral and material. Under the magnetic personality of the Holy
Prophet these two groups became like blood-brothers, and they were so treated
in matters of inheritance during the period when they were cut off from their
kith and kin.”[5]
It is also argued
that the concepts of Mahram and Sura-al-Nisa exist to protect
women from any form of injustice will be affected if the Adoption bill is
passed. A Muslim woman’s Marham is a person whom
she is forbade from marrying because of their close blood relationship, because
of radaa’ah (breastfeeding), or because they are related by marriage.
The main concern of Muslim communities is that the adopted child is not a
Mahram to his mother, if the adopted child is a girl, she will not be a mahram
to her father; and because of which the mother or the adopted girl will have to
put hijab when adopted son becomes mature or adopted girl becomes mature. Both the reasoning and the
orthodox concept of Mahram is undoubtedly outdated as it is both
unlikely and immoral that a Muslim father would marry his own adopted daughter,
especially given the fact that morality is a virtue in Islam. Breastfeeding the
adopted child is also a solution to this. Sura-al-Nisa says that if a woman does not have a
son, she will get 1/4th of the property. The argument made here
was that if there is a unified code of adoption, women can only get 1/8th of
the property which will not be justifiable and injustice will be done to women.
There is also a provision of gifting 1/3rd of the property to
others.
These provisions are made in good faith and for the women’s
benefit but acts as a hindrance to her at the same time as it might stop her to
practice adoption. If the adoption code comes with a reform which gives women
the right to choose whether she wants to give away her property to her adopted
ward or not, it will give her protection against injustice in a better manner
as wanted by the Muslim community. Another major argument is in the Sura 33 Ayat 4-6 of
the Holy Quran, the biological parents must be
respected and the original identity should not be altered and if kids are to be
adopted, the Kafala system (adoption without the severing of family ties, the transference
of inheritance rights, or the change of the child's family name) is the right
way to do it. Much like Mahram, the previous verse can also be
considered outdated due two reasons. First, the verse was made in the context
of slaves being taken away from their actual parents and has nothing to do with
the currentscenario and secondly, in these times where children are found
grieving for a proper identity, giving them the identity of their new parents
seems more of an appropriate way to go. The very existence of Kafala proves
that adoption is seen to be a virtuous act by the Quran, family name and
inheritance issues being a mere hindrance to the acceptance.
The prevalence of adoption is also backed up by Section 3 of the Shariat application act, 1937 which allows wills
and legacies for adopted children and Section 6 of the Shariat act permits custom
to override the Mohammedan law in cases where the parties are Muslims and the
question is one regarding the matters specified in Section 2 and section 3 of
the Act. All of this proves that adoption is not only recognized as a practice
in Islam, the prophet himself indirectly carried out the practice which makes
it nothing if not holy in nature. Thus, the cardinal principles on which Islam
is based are on unity of God and Mohammed’s Messenger ship and the introduction
of the adoption bill does not trump over any major principle of the personal
law.
Necessity and
possibility of bringing new reforms in Islamic law
Now
that it has been well established that new reforms in Islamic law are necessary for the welfare of
underprivileged children, it is necessary to check whether it is possible to do
so without violating any provision laid down in the constitution which promises
religious freedom. Attention should be paid to the fact all other codified laws
that are followed by Indian citizens are secular in nature, and if the adoption
bill is passed, it will fall right in place. When the Uniform Civil Code was
first introduced by Dr. B.R. Ambedkar, it faced a lot of criticism along with
its initial support. Despite the bill not passing, some critical points
regarding the dissent shown to the idea was observed. Shri
Guru Golwalkar, the late Sarsangchalak of the RSS, dissented to the passing of
UCC by saying, “India has always had infinite variety. And yet, for long
stretches of time, we were a very strong and united nation. For
unity, we need harmony, not uniformity.”[6] Law Minister
Veerappa Moily found it impossible to implement a uniform code in a
multi-cultural, multi-racial and multi-dimensional country like India. Both
these opinions hold a very strong weight as it is in fact true that bulldozing
traditions will do the opposite of holding up constitutional heritage. The
Minorities sub-committee were also concerned about Hindu values being imposed
on them. In light of the concerns, Dr. B.R. Ambedkar assured that,
“No one
need be apprehensive of the fact that if the State has the power, the State
will immediately proceed to execute or enforce that power in a manner that may
be found to be objectionable by the Muslims or by the Christians or by any
other community in India … No Government can exercise its
powers in such manner as to provoke the Muslim community to rise in rebellion.
I think it would be a mad government if it did so”.
To carry forward with his ideology and to
ensure that personal laws are not violated, reforms need to be made in a way
Article 15 and Article 25 are both protected. In order to do that, we need to
take a look at the adoption bill that was previously rejected. Article 39 of the Constitution[7]
provides inter alia that the state shall protect the youth of the country from
abandonment or any form of exploitation and taking that into consideration, the
bill deemed all personal laws regarding adoption as parochial and orthodox and wanted all cultural customs
(including Hindu laws) to be replaced with a new codified law. It was outright
said that the “Muslim community never accepts change in their personal laws.”
This was no doubt an unforgiving statement made against the Islamic community
of India, and it is definitely does not seem to be true in the modern times.
Present reforms
in Muslim Personal Law
If a feminist perspective is taken, Indian
Muslim Law has come a long way since the 1970s and has significantly reduced
the extent of gender inequality through these laws. These laws were surely
unexpected since conservative Muslim elites had substantial indirect control
over them, but whenever plausible reasons were found to bring reforms in group
norms, group initiatives and not just in constitutional law, they let the
reforms change the law. Muslim women were granted permanent alimony, the right to restrict
men from unilaterally giving them a divorce without proper procedure[8] (Triple Talaq), and the right to get a
divorce if their husband practices polygamy. The case of Mohammad Ahmed Khan
v. Shah Bano Begum[9] led to the MWPRDA act being passed in 1986
after maintenance being granted to a divorced Muslim woman and it is thus used
in almost all subsequent cases[10] for maintenance issues. As for alimony,
before the amendment made to Section 125 of the Criminal Procedure Code[11], alimony was given to ex-wives only till
they were serving the Iddat period as given in the personal laws. Since
post colonization, courts were often hesitant to take too much of an
independent action when it came to solving disputes related to uncodified
traditions of Muslim personal laws and it were mostly the Islamic scholars
known as ‘ulama’ who interpreted the law to bring in new
reforms. Triple Talaq was also ultimately interpreted as R’ajai(revocable)
by influential Hanafi Jurists and some schools of Islamic Law like the Itna
Azhari, Ismaili, Musta’lian and the Ahl-i-Hadith which
govern many Indians. In the Quareshi cow-slaughter case[12] reforms were brought forward only
after it was held that the proposed law had economic and secular purposes. It
was also said by the court that, if the Quran mandated only cowswere to be
sacrificed, the state would have considered it an essential and would not have
passed the law. However, the Quran lists five animals that can be sacrificed
and therefore, the law was passed without violating Article 25.
All these instances prove that the
muslim community plays a huge role when deciding new reforms for themselves or
as Jawaharlal Nehru once put it,
“It is obvious that no change can be
imposed from the top. It will thus become the duty of the Government of the day
to try to educate public opinion so as to make it accept the changes
proposed…and that any change of this type will only apply to a community when the community
itself accepts it”.[13]
It can clearly be deduced that when
it comes to constitutional and social welfare, policy-makers, scholars and the
muslim community as a whole have the full power to make reforms in muslim law
and continue to do so. In fact, Abdel Hakim Ourghi, a German- Algerian Islamic Scholar, philosopher and religious educator wrote in his book that,[14] both
Muslims and Neo-Muslims often given in to the belief that, Islam unlike other
religions cannot reform its own teachings. He believed that the reluctance
shown around questioning the canonical sources law should not be there as the
holy Quran is subjected to provisional interpretation by its subjects and is
made for accommodating to the current reality. Now the question that still remains is whether the
unified adoption code is necessary given the pre-existing laws in Islam.
Adoption is a practice that restores familial atmosphere contributes to the
all-around development of a child’s personality. As earlier discussed, Hindu
laws regarding adoption hints towards favoritism and other non-Hindu laws like
Muslim and Christian personal laws do not recognize adoption (Other than the
customary ones as mentioned in the modifications made to the Shariat
Application Act).
Gaps in the law and viable reforms
The Adoption of Children Act, 1972,
if enacted, promised to have a cosmopolitan and secular composition without
any form discrimination against any religion. This ensures maintenance of
Article 14 and 15 of the constitution and also puts the concern of minority
religions imbibing Hindu values, at rest. Few remarkable clauses of the bill
which highlights the need for a similar code today were clause 15ensured licensing of the adoptive parents
and clause 14 which gave the court permission to ask for the production of the
child in court, all in order to prevent fraudulent adoptions and ill-treatment
of the adopted child[15].
This bill does not however define adoption or the rights given to the
adopted child and is silent on whether people with no children of their own can
adopt. Another change that needs to made in this bill is that it explicitly
states the need of children to be unmarried for getting adopted. This will be
wrong for children or teen who are forced to indulge in an illegal child
marriage and it takes away their scope from getting a chance at making their
lives better. This clearly shows that with a few changes in the bill, the act
will not only reform personal laws for the better, they will have a huge impact
on not only India’s youth but it gives a chance to parents unable to conceive
as well.
Muslim personal law is silent with regard to a childless couple and it a
major flaw in the Muslim personal law. There is no law in place to grant
protection to orphan Muslim children. There are other social and psychological
problems attached to the restriction imposed by the Muslim law regarding
adoption. If the child’s former parent happens to be a criminal, then his
attachment to the surname can cause both societal and trauma-induced damage.
Keeping these drawbacks regarding adoption in muslim personal law and the
changes that need to be introduced in the bill in mind, if the Adoption of
Children Bill is reintroduced in the legislature, it highly likely that the
AIMPLB will be convinced as the welfare of the people of their community is
involved. Chapter IV of the Juvenile Justice Act, 2000[16]
highlights the importance of protection and care as an essential for all
children. Adoption,
unlike other civil matters under personal laws has gone through no changes and
has not been given the importance it requires. It is high time that the legal
fraternity takes notice of this because further reluctance shown to this subject
will be nothing but judicial slack.
Conclusion
This pith
of this article lies at the plausibility of whether the Adoption of Children
Bill that was previously introduced in 1972 could be reintroduced without
violating any essential Muslim personal laws or constitutional laws. The
hypothesis for the paper was that the entire bill is fit for being enacted, but
it was found that there are quite a few errors which need to be fixed in order
for the bill to be introduced which will lead to the enactment of a uniform
code for adoption. To conclude, interpretation of the laws also helped in
finding out viable reforms that if applied, will be highly beneficial for
social welfare and the maintenance of secularism and through that, the very
spirit of constitutionalism.
[1] Sardar Syedna Taher Saifuddin vs The State Of Bombay 1962 AIR 853
[2] Bhatia, Gautam. “Gautam Bhatia.” Indian
Constitutional Law and Philosophy, 8 Dec. 2023,
indconlawphil.wordpress.com/author/gautambhatia1988.
[3] Asaf A.A. Fyzee, Tahir Mahmood. Outlines
of Muhammadan Law. 5th ed.
[4] Tilkayat
Shri. Govindlalji Maharaj Vs. The State of Rajasthan, AIR 1963 SC 1638
[5]Mushaf Al-Madinah, An-Nabawiyah ,. The
Holy Qur-an (Quran) English Translation. Presidency of Islamic
Researches (Editor).
[6] “Uniform Civil Code – a Muslim Point of
View.” The Milli Gazette — Indian Muslims Leading News Source, www.milligazette.com/news/6-issues/16801-uniform-civil-code-a-muslim-point-of-view.
[7] Art.39, Constitution of India
[9]Mohd. Ahmad
Khan V/S Shah Bano Begum (1985) SCR (3) 844
[11] S.125, Criminal Procedure Code
[12] Hanif Quareshi & Others. v. The State Of Bihar 1958 AIR 731
[13] Id.8
[14] Ourghi, Abdel-Hakim. Reform of Islam:
Forty Theses for an Islamic Ethics in the 21st Century. 2019.
[15] Rao, R.
Jaganmohan. “A UNIFORM LAW OF ADOPTION. A CRITIQUE ON THE ADOPTION OF CHILDREN
BILL, 1972.” Journal of the Indian Law Institute, vol. 17, no. 2, 1975,
pp. 287–98. JSTOR, http://www.jstor.org/stable/43950486. Accessed 11 Dec. 2023.
[16] Chapter IV, The Juvenile Justice
(Care and Protection) Act, 2000