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 Shabnam 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 India 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. 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. Under 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.
