Nithyakalyani Narayanan. V
Muslims cannot adopt minor children as per their personal law but must follow the adoption procedures under the Juvenile Justice (Care and Protection of Children) Act 2015, held by the Orissa High Court.
The Division Bench made this observation while issuing an order for the restoration of custody of a young girl to her father from a couple who claimed to have adopted the child. The Court held that “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.”
This writ petition was submitted in an effort to regain custody of his minor daughter, who is currently 12 years old and has allegedly been held against his will by the opposing parties since 2015. It was pointed out that after numerous attempts, the petitioner was not allowed to meet his daughter. Both the police and the Child Welfare Committee (CWC) were notified of the situation, but neither agency took any action. Hence, the petitioner went to the High Court and asked for the issuance of a writ of habeas corpus, ordering the opposing parties to bring the child in front of the Court and granting him custody of his daughter.
It was argued that adoption is not permitted by Muslim personal law. Even “kinship relationships” are not acknowledged for establishing new, permanent familial ties. It was also pointed out that no court has the authority to name a guardian for a minor whose father is still alive and is not in the court’s opinion incompetent to serve as the minor’s guardian under the Guardians and Wards Act.
The Court held that, unlike Hindu Law, there is no practice in Mohammedan Law that justifies adopting a kid. It was also accepted that Section 41 of the Juvenile Justice Act (the former Act of 2000) established a detailed adoption procedure that even Muslims might use. In this regard, the Court cited the Supreme Court’s landmark decision in Shabnam Hashmi v. Union of India. However, it emphasised that the main goal of adoption under the Act is to rehabilitate children who have been abandoned, orphaned, or turned over. Aside from that, strict regulations for adoption have been set. The Central Adoption Resource Authority (CARA) handles adoptions in accordance with the Act’s prescribed process.
The Court mandated that the opposing parties grant the petitioner custody of the child by the end of June this year; otherwise, the Registrar (Judicial) of the Orissa High Court was instructed to issue a writ of habeas corpus to reclaim the child’s custody for her father. “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”.
Name of the Case: Nesar Khan v. State of Orissa & Ors. WPCRL No. 160 of 2021
Citation: 2023 (Ori) 63
Bench: J. S Talapatra and J Savitri Ratho