|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice P. Sathasivam, Justice RanjanGogoi and Justice Shiva Singh|
|DATE OF JUDGEMENT||19.02.2014|
Muslim personal laws do not recognize the process of adoption. However, there are provisions for looking after orphans (kafala) and guardianship whereby a child in need can be taken care of. In fact, religion enjoins Muslims to take care of orphans and safeguard their person and property. However, in such cases, the child or ward remains to be a part of his biological family only and does not become equivalent to the biological children of the person taking care of him. He does not have the legal status of an adoptive child that equates him as a biological member of the adoptive family and ends all ties from his biological family.
In a recent landmark judgment by the Apex Court, it was held that theprovisions of the Juvenile Justice Act, 2000, shall supersede the personal laws and any Muslim couple wanting to adopt, can adopt under the provisions of the secular law. Though the court refused to make the right to adopt a fundamental right, it observed that till the uniform civil code comes into existence, the law of the land shall prevail over the personal laws.The Supreme Court 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 does not permit it. “The JJ Act 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption. It is akin to the Special Marriage Act 1954, which enables any person living in India to get married under that Act, irrespective of the religion he follows. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute,” said the bench headed by J. P. Sathasivam. The judgement of the Supreme Court would be welcome by the childless couples of Muslim community who have the desire to adopt but are unable to due to legal and religious limitations. The Juvenile Justice Act enables Muslim couples to take up the secular route to enable themselves to undergo adoption.
The facts of the case are as follows: The petitioner, in this case, approached the Supreme Court under Article 32 of the Indian Constitution praying for recognition of the right to adopt and to be adopted as a fundamental right under Part III of the Constitution. There was an alternative prayer requesting the Court to lay down optional guidelines enabling the adoption of children by persons irrespective of religion, caste, creed, etc. and further for a direction to the respondent Union of India to enact an optional law the prime focus of which is the child with considerations like religion, etc. taking a hind seat.
The main issue in the case was: Whether right to adopt and the right to be adopted can be recognized as a fundamental right under Part III of the Constitution of India?
Summary of court decision and judgment
In 2014, the judgment of Shabnam Hashmi provided the adoption as the Fundamental Right. It was permitted that any person irrespective of religion can adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000. Shabnam had only guardianship rights over a girl adopted by her as granted by the court because as per the Muslim Law, adoption is not allowed. She claimed that adoption should be allowed on humanitarian grounds and as a Fundamental Right as well. After the finality of this case, the judgment has permitted all the future intended parents to go for adoption process (can adopt a child) under the Juvenile Justice (Care and Protection of Children) Act, 2000 irrespective of religion and it was also held that this act is of secular nature for the purpose of adoption of children under the prescribed procedure.
The prayer made in the writ petition appears to have been substantially fructified by the march that has taken place in this sphere of law, gently nudged by the judicial verdict in Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244, and the supplemental, if not consequential, legislative innovations in the shape of the Juvenile Justice (Care And Protection of Children) Act, 2000 as amended in 2006 (the JJ Act, 2000) as also the Juvenile Justice (Care and Protection of Children) Rules promulgated in the year 2007 (the JJ Rules, 2007). The JJ Act, 2000, as amended, is an 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 Central Adoption Resource Agency (CARA) guidelines, as notified under the Act.
The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. 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. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. An optional legislation 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 a 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 as on date.
While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt or to be adopted to the status of a Fundamental Right will have to await a dissipation of the conflicting thought processes in this sphere of practices and beliefs prevailing in the country. The legislature which is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment of the JJ Act, 2000 and the same must receive due respect. 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.
Judiciary through its decisions has provided the welfare mechanism to the uniformity of Adoption such as Shabnam Hashmi. The state should encourage the practice of adoption instead of promoting surrogacy so that uniform law of adoption can help the needy child to get a home. As of now, the judiciary has provided the uniformity of adoption through its judgment and now, it is duty of the legislature to provide Uniform law for adoption which is the need of the hour.
 AIR 2014 SC 1281