Family law

Shabnam Hashmi V. Union of India

1. SHABNAM HASHMI Vs UNION OF INDIA MANU/SC/0119/2014 Writ Petition (Civil) No. 470 of 2005 Decided on 19.02.2014

2. FACTS In the year 1996 S habnam Hashmi along with her husband adopted a girl child to complete her family. While adopting her daughter Sehar the couple was informed that the Muslim personal law does not consider an adopted child at par with the natural born child. Thus this PIL U/A 32 of the Constitution of I ndia was filed to recognise the right to adopt.

3. ISSUES Whether child adopted by a Muslim couple have right of inheritance? Whether one can adopt child irrespective of religion, caste, creed etc? Whether to adopt and to be adopted can be held as a fundamental right of an individual?

4. ACTS/ RULES/ ORDERS Juvenile Justice (Care and Protection of Children) Act, 2000- Section 41- Procedure for adoption. Section 42- Information regarding foster care. Section 43- Sponsorship. Section 44- After care organisation .

5. CASES REFERRED Lakshmi Kant Panday Vs Union of India MANU/SC/0054/1984 Consent of the biological parents to be obtained before adoption. If the child is old enough to give the consent, same shall be taken.

6. Philips Alfred Malvin Vs Gonsalvis MANU/KE/1025/1999 It was held that an adoptive child have the same right as that of a natural born. Thus they have an equal right in the property of the parents.

7. Manuel Theodore D’Souza MANU/MH/0295/2000 The Petitioner being Christian were not entitled to adopt under Hindu Adoption and Maintenance Act, 1956. The Court recognised the right of an abandoned child to be adopted by a willing parents and to have a home and nationality.

8. Legislative Analysis The Juvenile Justice Act, 1986, only dealt with “neglected “, “delinquent juveniles” which is not of any importance in the present time. Further in 2006 the term “adoption” was defined in sec. 2( aa ) as“ adoption means 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 rights, privileges and responsibility that are attached to the relationship”.

9. In the year 2006, JJ Act, 2000 was amended and for the first time it casted the responsibility of adoption on the Court in which it gave the jurisdiction to the Civil Court to try the cases regarding Guardianship and Adoption. Section 68 of JJ Act, 2000 gave recognition to the rules and guidelines framed by CARA. Rule 33 of the JJ Rules, 2007 contains elaborate provisions regarding pre-adoptions procedure which is consistent with the provisions of CARA. Further comparison can be made between the Special Marriage Act, 1954 and JJ Act, 2000. U nder the SMA any person can get married irrespective of their religion on contrary couples were not allowed to adopt irrespective of their religion. Thus there was a need to enact a provision under JJ Act by which a couple can adopt irrespective of their religion i.e an Act which truly follow the spirit of Uniform Civil Code as per Article 44 of our Indian Constitution.

10. Judgment In this case the Apex Court held that The adopted child is at par with the natural born child. Both the child (biological and adopted) have equal rights of inheritance in the property of their parents. One can adopt irrespective of their religion, caste and creed subject to the fulfillment of the provisions laid down by the JJ Act or any other Act for the time being in force.

11. Judgment The Court took the view that the present is not an appropriate time and the stage where the right to adopt and 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.