Adoption & Rights of Adopted Child: An Islamic & Customary Perspective

Adoption in Islam is not recognized in such a manner as it is recognized in Hindu Family law or other legal systems of the world. In Hindu Law adopted child is considered as the real child assuming all the legal rights and duties like that of biological child or real child. He ceases to be the child of his biological parents and ceases to assume any right thereof. In Islam adoption is an offshoot of guardianship and not of parentage. Islam completely prohibits associating or calling any one by the name of any other person except that of his real father. Since Islam encourages and recommends the treatment, care and rehabilitation of orphans and destitute, therefore guardianship is an important institution in Islam. It is to be noted that Islam differentiates between guardianship and parentage. A person can be a parent as well as a guardian of a child but a person is not necessarily a parent while being a guardian of a child. Islam recognizes adoption from the prism of guardianship and not from the prism of parentage. Islam abolished the customary way of adoption as was prevalent in the Arabs. Arabs would consider the adopted child as their real child and would give him all the rights including inheritance as were due to real child. Even Prophet Muhammad S.A.W had adopted Zaid bin Haritha as His son and he was called by the name of Zaid bin Muhammad in the society of Arabs. However, this practice was abolished by Allah through Quranic injunctions laid down in Surah Al-Ahzaab (verses 4, 5, 6, 37, 40). Therefore, the rules of adoption in Islam may be summarized as under:
i. Adoptive parents under Islam merely act as guardians and caretakers of adopted child. They are not the actual parents of the child.
ii. An adopted child retains his or her own biological family and parental name.
iii. An adopted child is entitled to inherit from his or her biological parents only and such parents also have a right to inherit from such an adopted child.
iv. Adopted child is not a legal heir of his/her adoptive parents. Neither the adoptive parents can inherit from such an adopted child. However, it is advisable, permissible and recommended that adoptive father may make will in his life time in favour of such adopted child i.e adopted son or daughter. Such a will can be made up to 1/3rd only and for that there is no requirement of any consent from legal heirs. Similarly a gift in favour of such an adopted child can be made and such gift would be valid. This is reflected in the verses 33 and 8 of Surah Al Nisa.
v. It is allowed for an adopted son to marry the daughter of his adoptive parents because she is not within the prohibited degrees by blood relationship unless an adopted child has been fostered by the mother of such daughter. Then such marriage is barred by fosterage. Same is true with adopted daughter marrying son of her adoptive parents.
vi. If a male child is adopted by a woman, such a woman shall observe hijab from him after such male child reaches the age of puberty, unless such a woman is related to such a male child in prohibited degrees e.g. by blood or by fosterage.
vii. The adoptive parent (guardian) can marry with the wife of his adopted son if she has been divorced by such adopted son. This is best illustrated in the case of Prophet Muhammad S.A.W marrying Zainab r.a who was the divorcee of Zaid, the adopted son of Prophet Muhammad S.AW.
viii. Where a child is adopted by the blood relation, all others rules shall also come into effect accordingly.
In Kashmir according to customary Law, adoption was a recognized institution before enactment of J&K Shariat Act, 2007 which repealed customs so far in contravention with Shariah. The adopted child inherited property from his adoptive parents and even excluded the real daughters of adoptive parents as was prevalent in Arabs too. He at times becomes a king in a strange family. But it is witnessed in most of the cases that adopted child is deprived from the benefits and rights from both his real and adoptive parents. One such account which Author is witness to is about a male child who at the time of birth was given in adoption by his father to his close friend who was issueless at that time. The adoptive parent on oath promised to the real father of the child that he will treat the child as his real and elder son. The adoptive father incorporated his parentage to that child for all the matters and documents like education, residence etc. However, after raising him up for almost fifteen years, when the child was in his teen age, he expelled him from his adoptive home after the demise of his first wife (who died issueless and who was a very affectionate adoptive mother of the child) on the behest of his second wife who he had married during the subsistence of first marriage and had given birth to few children at that time. He not only threw his adopted son out but also deprived him of supposed benefits in the form of will or gift. It is ironical that how the adopted parent of such child ignored the following directions of the Quran Surah Al Nisa: 33 & 8. “And to those whom your oaths have bound to you- give them their share. Indeed Allah is ever, over all things, a Witness.” “And when (other) relatives and orphans and the needy are present at the (time of) division, then provide for them (something) out of the estate and speak to them words of appropriate kindness.” In the light of these verses also such an adopted child was entitled to receive something as he was not only needy but poor at that point of time and had spent his prime youth in the house of adopted parents by serving them before being expelled. Another side of the story is that the real home of the child became strange place for him. He was not given any share in the property of his deceased biological father. His name was erased from all the official records of his original place of birth and was made disentitled to get any share from the property of his real father. The main purpose of narrating this real life incident is to highlight how institution of parentage and adoption has been intermingled, misused and misinterpreted. Therefore, Islam imbibed adoption in the institution of guardianship and separated it from the institution of parentage. It maintained a balanced approach in recognizing the rights of real children and the adopted with legal considerations on one side and legitimate expectations and equitable considerations on the other side.

(The author is a Phd. Scholar at Law Department Kashmir University Srinagar. Views are his own)

syedshahid1066@yahoo.co.in.

 

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