Shabnam Hashmi v/s Union Of India & Ors

The present case Shabnam Hashmi v Union of India & Ors deals with right to adopt a child as a fundamental right under PART III of the Indian Constitution. The ideology behind this case is every individual has right to become parent either biologically or through adoption. The motive of this case is to adopt a child regardless of caste, religion, race and other creeds.

Equivalent Citations: (2014) 4 Scc 1 AIR 2014 Supreme Court 1281, 2014 Air Scw 1329, 2014 (2) Akr 185, Air 2014 Sc (Civil) 969, 2014 (2) Abr (Cri) 34
Type Of Case: Civil Case
Petitioner: Shabnam Hashmi v/s Respondent: Union Of India & Ors
Jurisdiction: Supreme Court Of India
Bench: Justice Ranjan Gogoi, Justice Shiva Kriti Singh, & Justice Palanisamy Sathasivam
Date Of The Judgement: 19/02/2014

Acts And Sections Involved:

• The Indian Constitution
  • Article 21
  • Article 44
  • Article 20(3)
• The Juvenile Justice (Care And Protection Of Children) Act, 2000
  • Section 41

Facts Of The Case:
The petitioner of the case Mrs. Shabnam Hashmi a Muslim social activist , adopted a girl child though she had a nine-year old boy in order to complete the family. Under Islamic law adoption is not recognized and she also faced legal challenges to attain the status of child's parent rather than child's guardian. In addition to this, Islamic law does not treat adopted child as same as biological child and the child won't get inheritance of property. The petitioner filed a writ petition in Supreme court under Article 32 of the Indian Constitution. And also petitioned the court to lay down the guidelines for the adoption of the child regardless of religion, caste, race and so on.

Petitoner Contention:

1. The counsel of the petitioner contended that the right to adopt and be adopted is a fundamental right under PART III of the Indian Constitution. The right to adopt needs to be guaranteed under ARTICLE 21, the Right to Life under the Indian Constitution.
    
2. The legislation drawn for adoptions is the Juvenile Justice (Care and Protection of Children) Act of 2000, which was laid down for the adoption of abandoned, orphaned, and surrendered children regardless of their religion, caste, and race.
    
3. CARA guidelines play a vital role in shaping and regulating the procedures for adopting a child and also include procedures for inter-country and intra-country adoptions. They aim to balance the responsibility of each state in dealing with their adoptions within their jurisdiction. These guidelines were formulated to centralize the adoption of children and to direct the states and union territories under the Juvenile Justice Act of 2000 and Section 41 of this Act to implement and follow CARA guidelines.
    
4. The petitioner also requested the court to lay down guidelines for the adoption of children regardless of religion, caste, race, or creed.

Respondent Contention:

1. The counsel of the Respondent in this case, The All India Muslim Personal Board (AIMPLB), contended that Muslim law does not recognize the adoption of children. They also argued that the Juvenile Justice Act should not be applied to them and that it does not enshrine the fundamental right of Article 21 in this case.
    
2. The counsel also argued that the concept of adoption refers to taking care of the child and is not meant to establish a legal parent-child relationship.
    
3. The counsel contended that under Islamic law, the system of "Kafala" is used, whereby the child is placed under a "Kafil" who is the true descendant of the biological parents and not the adoptive parent.
    
4. The counsel also presented to the court that the Kafala system is recognized under the UN convention regarding children's rights under Article 20(3) and that directions need to be issued to child welfare committees, considering Islamic principles before declaring a Muslim child legally free for adoption under Section 41(5) of the Juvenile Justice Act of 2000.

Judgement Of The Case:
The Supreme Court affirmed that right to adopt as the fundamental right under PART III of the Indian Constitution. This right is enshrined to every citizen to adopt regardless of their religion, caste, race or creed. The court held that The Juvenile Justice (Care and Protection of children) Act 2000 is a secular law which enables every citizen to adopt irrespective of their religion, caste, race or creed inclusive of every communities ,even though certain personal laws do not recognize adoption as a right.

In 2024,February ruling by Delhi High Court affirmed that adoption is not the fundamental right under Article 21 which guarantees for right to life and personal liberty. The court mainly focused on the welfare of the child and prospective adoptive parents in the process of adoption and they do not have inherent right to choose whom to adopt.

Conclusion:
The Shabnam Hashmi is a landmark case. Right to adopt a child can be done regardless of their religion, race and creed which made Muslims to change their view from prohibiting a person to adopt. This decision made a way towards Uniform Civil Code which is enshrined in the Article 44 of the Indian Constitution. Every individual has the right to become parents and at the same time it shall not be misused as being a right. Right to adopt can be a legal right of a person but cannot be a fundamental right of a person.

The rights which are guaranteed under Part III of the Indian Constitution are essential need of every individual which becomes the right later. Under Article 21 right to life includes right to have a family, the child under this adoption process have the right to have the family and not the couple who have already build up a family with biological child unless there is a valid reason to adopt.

If this becomes a fundamental right then every family will adopt a child as their need and their wants even if there is not a valid reason to do so . Right of the child to have a family can be enshrined as a fundamental right under Part III of the Indian Constitution.

Referred Case Laws:

• Laxmi Kant Pandey vs Union Of India (1986)
• In re: Manuel Theodore D'souza vs Unknown (1999)
• Philips Alfred Malvin vs Y.J. Gonsalvis & Ors. (1999)

Statutes And The Codes Referred:

• The Indian Constitution
• The Juvenile Justice (Care and Protection of Children) Act of 2000

References:

• https://indiankanoon.org/doc/105818923/
• https://www.livemint.com/Politics/3mOuc3wMjpjDG2qx60B8PK/The-religious-contours-of-adoption-in-India.html
• https://www.lawyersclubindia.com/judiciary/shabnam-hasmi-v-uoi-ors-2005-section-41-j-j-act-4789.asp
• https://legalvidhiya.com/shabnam-hashmi-v-union-of-india-air-2014-sc-1281/
• https://wcd.delhi.gov.in/wcd/juvenile-justice-act-2000

Award Winning Article Is Written By: Ms.Asvanthika Deepthi M.D, Sastra Deemed To Be University, Thanjavur, Tamil Nadu

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