By Chritarth Palli
The landmark decision on the law of adoption by the Supreme Court in Shabnam Hashmi vs Union of India demonstrates changing attitudes in India in the area of personal law. The effect of the decision is that the personal religious laws of individual litigants will no longer have primacy over the country’s uniform civil code as contained in legislative acts which flow from Article 25 of the Indian Constitution. The uniform civil code as contain in statutory law shall have equal footing with personal religious laws of litigants. In this case, the petitioner, Shabnam Hashmi, had adopted a daughter and wanted her recognized under the law as her natural daughter.
Prior to 2000, India did not have a law on adoption for non Hindus. The only enactment on the issue was the Hindu Adoption and Maintenance Act, 1956. With the enactment of the Juvenile Justice (Care and Protection of Children) Act 2000, as amended, the right to adopt children is recognized across the board irrespective of personal laws. This, in essence, enables Muslims to evade their orthodox personal laws which do not permit adoption. The Muslim personal law permits only guardianship and disallows inheritance of property for an adopted child. Intervenor the All India Muslim Personal Law Board had argued that Sharia law on guardianship is consistent with United Nations conventions and, therefore, not in conflict with the meaning and intent of the Juvenile Justice Act and that Sharia law should, therefore, prevail.
The court, however, declared that under the Juvenile Justice Act a Muslim may adopt a child regardless of his personal law. In order to avoid an apparent clash between personal laws and the Juvenile Justice Act the court calls the Act an optional legislation that does not impose any compulsory right over any community. The judgment falls shy of declaring the right to adopt a child the status of a Fundamental Right and leaves it for the legislature to
do so as and when it deems appropriate. The court did not rule that the right of adoption is a fundamental right under the constitution.
Significantly, under the decision, the Juvenile Justice Act does not preempt personal Islamic law, which is still valid and enforceable. The decision holds only that the courts must recognize an adoption under the statute should a litigant, regardless of his or her personal religious law, choose to seek enforcement of his or her rights in a civil court under that statute. In that sense, the decision is a step closer toward achieving a Uniform Civil Code as envisaged in Article 44 (also a directive principle of state policy) of the constitution (“The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”).
Chritarth Palli is a fourth year student at Government Law College, Mumbai. Upon graduating in 2015, he plans to attend a Masters in Law program at a law school in the United States. He can be reached at firstname.lastname@example.org.