Muslims Can’t Adopt Under Personal Law; Must Follow Procedure Prescribed Under Juvenile Justice Act For Adoption: Orissa High Court

The Orissa High Court has clarified that Muslims cannot seek adoption of minor children under their personal laws and they must strictly follow the prescriptions laid down under the Juvenile Justice (Care and Protection of Children) Act (‘JJ Act’) to undertake any such adoption.

While passing order for restoration of custody of a minor girl with her father, from the couple who claimed to have adopted the child, the Division Bench of Justice Subhasis Talapatra and Justice Savitri Ratho observed,

“True it is that a Muslim can adopt a surrendered child but they have to follow the stringent procedure as laid down under the JJ Act and the Rules made thereunder, but not at their whim. So generally in the Islamic countries instead of adoption the guardianship is provided to a minor who needs care and protection. As such, we hold that the claim of adoption is unsustainable in law.”

The petitioner filed this writ petition seeking restoration of custody of his minor daughter. It was averred that the minor, who is currently about 12 years old, has been illegally detained by the opposite parties since the year 2015. Opposite Parties Nos. 6, 9 and 11 are respectively sister, niece and son-in-law (niece’s husband) of the petitioner.

It was submitted that the petitioner was denied to meet his daughter despite series of attempts made by him. He had reported the matter to the police as well as to the Child Welfare Committee (CWC) but no action was taken by those authorities.

The petitioner, therefore, approached the High Court praying for issuance of writ of habeas corpus, directing the opposite parties to produce the minor in the Court and to grant him his daughter’s custody.

It was argued on behalf of the petitioner that adoption is not recognized under the Muslim personal law. Even ‘kinship relationship’ is not recognized for creating a new and permanent family relationship.

It was also submitted that no Court is vested with any power under the Guardians and Wards Act to appoint a guardian of the person of a minor whose father is living and is not in the opinion of the Court unfit to be the guardian of the minor.

Court’s Observations

It was noted by the Court that unlike Hindu Law, there is no practice in Mohammedan Law warranting adoption of child, which was duly admitted by the parties. The Court also acknowledged that Section 41 of the JJ Act [the old Act of 2000] provided the detailed procedure for adoption, which could even be resorted to by the Muslims. In this respect, the Court referred to the landmark ruling of the Apex Court in Shabnam Hashmi v. Union of India.

However, it underlined that the primary purpose of adoption under the JJ Act is rehabilitation of the children who are orphans, abandoned or surrendered. That apart, stringent guidelines for adoption have been framed. Adoption is carried out through the Central Adoption Resource Authority following the procedure as laid down under Act.

Therefore, the Court opined that though Muslims can adopt surrendered children but they have to follow the stringent procedure as laid down under the JJ Act and the Rules made thereunder. As in the instant case, there was no valid adoption by following the prescribed procedure laid down under the Act, the Court held the claim of adoption to be unsustainable in law.

“We have observed that in absence of adoption, the custody of the minor child is liable to be termed as illegal detention. Even the kinship relationship as has been argued is not sufficient to deprive the parents from getting the custody of their child and the detention of the child was sought to be justified by the pretext of adoption which does not exist in fact or in law,” the Court added.

The Court said though it is aware of the emotional bonding that has been developed due to the long stay of the minor with the opposite parties, but having regard for the right of the petitioner and also the ‘best interest’ of the child, the custody of the minor should be restored with the petitioner.

“Merely because the Opposite Parties No. 6 to 11 took care of the child for some time or may be for a long time, they cannot retain the custody of the child. If the custody is not restored to the petitioner, the court will be depriving both the child and the parent,” it added.

Accordingly, the Court ordered the opposite parties to hand-over custody of the child to the petitioner by the end of June this year, failing which the Registrar (Judicial) of the Orissa High Court was directed to issue the writ of habeas corpus by the force of this judicial order, to restore custody of the child with her father.

Case Title: Nesar Ahmed Khan v. State of Orissa & Ors.

Case No.: WPCRL No. 160 of 2021

Counsel for the Petitioner: Ms. Sagarika Sahoo & Mr. Anam Charan Panda, Advocates

Counsel for the Respondents: Mr. Janmejaya Katikia, Addl. Govt. Advocate for the State Authorities; Mr. Anshuman Ray, Advocate for Private Respondents

Citation: 2023 LiveLaw (Ori) 63

Click Here To Read/Download Judgment