New Delhi, Feb. 19: The Supreme Court today ruled that Muslim personal law or any other religious code could not prohibit adoption by childless couples as such a right is vested in every Indian under the Juvenile Justice (JJ) Act.
The court, however, rejected a plea for adoption to be declared a fundamental right.
A three-judge bench of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiv Kirti Singh said the provisions of the JJ Act on adoptions would prevail over all personal laws because adoption was a matter of personal choice and there was no compulsion to adopt a child.
The bench also said that till a uniform civil code, enunciated by Article 44 of the Constitution, was enacted, the JJ Act would apply to all in the country irrespective of religious denominations.
“The (JJ) Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though (they) must be honoured, cannot dictate the operation of the provisions of an enabling statute,” Justice Gogoi, writing the judgment, said.
The order made it clear that personal law “would continue to govern any person who chooses to so submit himself until such time that the vision of a uniform civil code is achieved”.
The Juvenile Justice (Care And Protection of Children) Act, 2000, was amended in 2006 by inserting a section on adoptions. Before that, the process was governed by the Hindu Adoption and Maintenance Act or the Guardianship Act.
According to central figures, 19,884 adoptions were registered in the country from January 2013 to September, 2013.
The apex court passed the judgment while disposing of a PIL by a Muslim woman, Shabnam Hashmi, who wanted adoption to be declared a fundamental right.
The All India Muslim Personal Law Board, which filed an application saying it should be heard before a judgment was passed in the case, contended that Islamic law does not recognise an adopted child to be on a par with a biological child.
According to the board, Islamic law professes what is known as the Kafala system under which a child is placed under a Kafil (guardian) but the child remains the true descendant of his biological parents and not that of the “adoptive” parents. In other words, a child in a Muslim family can only have guardians and not adoptive parents.
The board contended that the Kafala system was recognised by the UN’s Convention of Rights of the Child. It sought a directive to all child welfare committees, which decide adoptions, to follow the principles of Islamic law before declaring a Muslim child available for adoption under the JJ Act.
But the court rejected the board’s contention. “The (JJ) Act does not mandate any compulsive action by any prospective parent…. Such 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 bench said.
The court, however, disagreed with the petitioner’s plea to declare adoption as a fundamental right. “The (Muslim law) board objects to such a declaration. 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.”