Shabnam Hashmi v Union of India, AIR 2014 SC 1281

SUBJECT

Shabnam Hashmi filed a case in the Supreme Court of India under Article 32 of the Constitution stating that the adoption of a child is a fundamental right of every citizen of India under Part III of the Constitution regardless of gender, religion, caste, or creed, etc everyone has the equal right to adopt a child.

INTRODUCTION

Shabnam Hashmi was a social activist and a campaigner for human rights. She began with her campaigns on adult literacy in 1981. She adopted a girl but instead of being called her parent, she was known to be her guardian. This was because in Islamic law there should exist a biological relationship between the child and the parent to be called a parent. So, she filed a writ petition where she claimed that in her Islamic laws, she was not allowed to adopt a child so she became the guardian of the child whom she adopted. But she filed the writ petition for every citizen who adopted a child and was not allowed to be called their parent. She also filed a petition to prevail secular laws over personal laws so that childless couples can easily adopt children and give them proper care and emotional and mental support

Prior to this case adoption was only valid for the Hindu Community, but after the enactment of the Hindu Adoption and Maintenance Act, 1956, which encouraged people to adopt a child in HINDUS. This Act prevailed in the Hindu community but not in others like Muslims, Christians, Sikhs, etc so, so these communities started adopting the Guardianship and Wards Act, for couples adopting a child and being the guardian of that adopted child.

This was majorly done to encourage people to adopt a child and give homes to many homeless children.

As per section 2 (2) of the Juvenile Justice (care and Protection) Act of 2015 where “Adoption” refers to the process by which a child is adopted by a childless couple from their biological parents or from orphanages. And they became the parents of the adopted child with all privileges, and rights as the biological parents.

ISSUE

•  Whether adoption of a child a fundamental right?
• In case of contradiction between Personal Law and Secular Law, which one would prevail?
• Whether caste, creed, and religion affect the procedure for adoption?

FACTS

• Shabnam Hashmi, the petitioner, is an Indian Social Activist and Human Rights Campaigner. She is a Muslim woman who adopted a young girl when she was small. It was also put in the court of law that the JJ Act, 2000 is a secular law that enables any person, irrespective of the religion he follows, to take a child for adoption. It was also argued that the court should direct the states and UT under JJ Act, 2000 to implement Section 41 of the Act and strictly follow CARA guidelines. It was also argued in the court of law that the Right To adaption is a fundamental right

• The petitioner 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 of India.

 • 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.

Petitioner’s Arguments

The petitioner requested in the court of law to put up proper guidelines regarding the adoption of a child by any person irrespective of their religion, caste, creed, etc. Further, the petitioner highlighted the guidelines of 2011 and JJ Rules, 2007 that there is an undue delay to process a case of adoption and cases of Children welfare. India to enact an optional law the prime focus of which will be the child with considerable religion, etc. taking a seat

Respondent’s Arguments

 It was contended that Islamic Law does not recognize an adopted child to be given the place or title of a biological child. As per Islamic Law, this process is known as the ‘Kafala’ system under this system the child is placed under a ‘Kafil’ who looks after the well-being of the child and is thought of as a descendant of his biological parents and not the ‘adoptive’ parents. It was put forward in the court of law that this system is recognized in UN Convention on the Rights of the Child and hence, directions should be issued to all the Child Welfare Committees to follow the principles of Islamic Law before declaring a Muslim child available for adoption under Section 41(5) of the JJ Act, 2000 Judgement: The judgment of this case, Shabnam Hashmi provided the adoption as a 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, of 2000. Shabnam only got guardianship rights over a girl she adopted as per Islamic Law; adoption is not allowed. She claimed that adoption should be allowed on the grounds of humanitarian welfare as well as a Fundamental Right.

JUDGEMENT

In a judgment on the Shabnam Hashmi case, the bench stated that adoption is the fundamental right of every citizen irrespective of their caste, creed, or religion. It was permitted to adopt a child irrespective of religion or caste following the juvenile justice (care and Protection) Act 2000. Even though the Petitioner had not given any serious evidence on this matter, the court accepted the plea of the petitioner and said that the right to adopt a child comes under the Part III of the constitution, Fundamental Right. Everyone has the equal right to adopt a child regardless of their religion, caste, creed, gender, etc. The benches further stated that Muslim personal laws do not recognize adoption nor it prohibits a childless couple to adopt a child and take care of the child’s emotional and material well-being. Whenever a couple adopts a child, they would be regarded as their parents and not as guardians, under the juvenile justice Act 2000 it is permitted to adopt even though personal laws have not mentioned adoptions, every couple has the right to be parents and every child has right to be adopted regardless of gender, religion, caste, or creed.

Conclusion:

The supreme court ruled that a person can adopt a child under the juvenile justice (care and Protection) Act 2000 irrespective of their religion, caste, gender, creed, etc. Further, it stated that personal laws will not be the bar between adoption and religious faith anymore. The juvenile justice act 2000 is a secular act that enables any person to adopt a child under the adoption of the child actors. This will allow several childless families to have a child and help several orphaned children to find a suitable house or family for them. Shabnam Hashmi, when she first moves to court in 2007 that time, she got the guardianship of the girl child but now after this judgment done by Justice Ranjan Gogoi became the mother of the girl child or legal parent. The judiciary through its judgment has provided the welfare mechanism for the uniformity of the adoption. The state should encourage the practice of adoption and promote this practice instead of giving surrogacy options it can help needy children to get home and childless parents have a chance to become parents. Judiciary has provided uniformity of adoption through its judgment and it is the duty of the legislature to provide a uniform law for adoption that will help childless parents and needy children both. The writ petitioner’s plea accepted that the adoption of a child comes under Article 21 of the constitution of India, Judgement states that adopting a child saves several parents emotional and material strength.

SOURCES

https://www.lawyersclubindia.com/judiciary/shabnam-hasmi-v-uoi-ors-2005-section-41-j-j-act-4789.asp

https://www.legalserviceindia.com/legal/article-8333-analysis-of-supreme-court-s-privacy-verdict.html

https://indiankanoon.org/doc/105818923/

This is written by Sushila Saha, Dept. of Law, Calcutta University, an intern under Legal Vidhiya

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