Adoption in Islam Prohibited

Adoption is the transplantation of a son/daughter from the family in which he/she is born, into another family by gift made by his/her natural parents to his/her adopting parents. Islam does not recognize adoption. There is nothing in the Mohammedan Law similar to adoption as recognized in Hindu system. 

The practice of adopting sons was a very important custom prevalent amongst Mohammedans in Pre-Islamic Arabia based on a sense of Comrade-Ship in arms in some instances. A son was adopted by contract with the parents. The Arabs of jahiliyyah (time of ignorance) used to add anyone they wished to their lineage and family through adoption, as did other nations and societies during the course of history. A man would adopt (tabanna, “to make one’s son”) any boy of his liking as son (mutabanna), declare it publicly, and the boy would become like a son to him, sharing the responsibilities and rights of his adopting family and taking the family name.

Before the advent of Islam, Prophet Muhammad had himself adopted Zaid bin Harithah, who had been captured as a child during one of the raids on his tribe, which were common occurrences during the period of jahiliyyah. Hakim Bin Hizam had brought him for his aunt Khadjjah, and after her marriage with Prophet (Sallallahus Alaiyhi wassallam), Khadjjah presented Zaid to him. When Zaid’s father and uncle learnt about his whereabouts, they came to Prophet (Sallallahus Alaiyhi Wassallam) to demand Zaid’s return. The Prophet (Sallallahus Alaiyhi Wassallam) gave Zaid a choice, and he chose to stay with the Prophet (Sallallahus Alaiyhi Wassallam) in preference to his father and uncle. The Prophet (Sallallahus Alaiyhi Wassallam) then set him free and adopted him as his son in presence of others. He was thereafter called Zaid ibn Muhammad (son of Prophet Muhammad) and became first freed slave to embrace Islam. Allah wished that this relationship, that is, adoption be discontinued.

Later on, Zaid married Prophet’s cousin, Zainab bin Zahsh. Zaid and Zainab were not happy together, and Zaid became increasingly dissatisfied with his wife, complaining frequently Prophet (Sallallahus Alaiyhi Wassallam). The Prophet (Sallallahus Alaiyhi Wassallam) knew, through divine revelation that Zaid would divorce Zainab and that he would afterwards marry her himself. Thus, whenever Zaid complained about his wife, the Prophet (Sallallahus Alaiyhi Wassallam) would tell him “Hold on your wife and fear Allah.” At this point Allah revealed some verses of Holy Quran (33:37) admonishing the Prophet (Sallallahus Alaiyhi Wassallam) and at the same time fortifying his will to face society in demolishing the remnants of this ancient system, in this case, the established practice which prohibited a man from marrying the ex-wife of a stranger who had been adopted as a son. The Holy Quran goes on to support the Prophet (Sallallahus Alaiyhi Wassallam) in this action, confirming its lawfulness and removing any stigma attached to it.

It is, however, on the basis of a verse as contained in the Holy Quran that the adoption was abrogated as the Prophet himself disapproved adoption. The relevant verse of Quran as contained in S.33, A. 4-6 reads as under,

“Allah has not made for any man two hearts in his breast nor has he made your wives whom ye divorce by Zihar your mothers nor has he made your adopted sons your sons, such is (only) your (manner of) speech by your months. But Allah tells (you) the truth and he shows the (right) way call them by after their fathers: that is just in the sight of Allah but if ye know nor there father’s names (then they are) your brother’s in faith, or your friends but there is no blame on you if ye make a mistake therein: (what counts is) the intention of your hearts: and Allah is oft-forgiving, most merciful. The prophet is closer to the Believers than their own selves and his wives are their mother’s Blood relations among each other have closer personalities, in the Book of Allah than (the Brother hood of) believers and Muhajirs”.

A reading of above passage of the Holy Quran asserts that adoption in technical sense is not allowed in Muslim Law but it nowhere prohibits adoption. The intention of the Prophet was that a man called another’s son “his son” it might create complication with natural and normal relationship if taken too literally. The idea of the Prophet was to covey that the real son is a real son and adopted son is not a real son. The adoption, as such, is not barred in absolute terms. What is intended literally is erection of false relationship to the detriment or loss of true blood relation. 

The custom of adoption is otherwise prevalent amongst many classes of Mohammedans in India including Punjab, Madhya Pradesh, Bombay, Ajmer and Kashmir. There is overwhelming number of judicial decisions to support that Mohammedan Law recognizes adoption by custom. Adoption does not confer any rights of inheritance or other rights on the adopted son.

"The question as to whether a Muslim can adopt any person and it is legally permissible or not, was considered by the Division Bench of Allahabad High Court in a decision in the case of "Mohd. Atiq Khan V. Union of India & Ors.", 2003 (3) AWC 1818 (Justice Markandey Katju, as he then was, and Justice Prakash Krishna). The Division Bench relied on the Full Bench decision of the Allahabad High Court titled "Muhammad Allahdad Khan Vs Muhammad Ismail Khan, (1888) ILR 10 All 290, wherein, it was held that among the muslims, since the doctrine of acknowledgment of paternity is available and there is no question of adoption in muslim law. The Division Bench also relied on the view expressed in Mulla's Muslim Law Vide Chapter XVII and the Principles of Mohammedan Law by Amir Ali Vide Part II Chapter I.

Islam does not recognize adoption. As has been held in Mohammed Allahabad Khan Vs Mohammad Ismail, there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System. Acknowledgement of paternity under Muslim Law is the nearest approach to adoption. The material difference between the two can be stated that in adoption, the adoptee is the known son of another person, while one of the essentials of an acknowledgement is that the acknowledgee must not be known son of another. However an adoption can take place from an orphanage by obtaining permission from the Court under Guardians and Wards Act. It cannot be said that the Holy Quran prohibits adoption amongst Muslims in absolute terms. And the Custom of adoption amongst Muslims has been held also the valid as Muslim Personal Law (Shariat) Application Act, 1937 does not abrogate the custom of adoption prevailing amongst Muslims.

Matters relating to inheritance in this State are governed by the provisions of Sri Partap Jammu & Kashmir Laws Consolidation Act, 1977 Svt. which was enacted in the year 1920 A.D. Section 4 (d) of the Act provides that, in questions regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqfs, partitions, caste or religious usages or institution, the rule of decision is and shall be the Mohammadan Law where the parties are Mohammadan 'except in so far as such Law has been by this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment declared to be void by any competent authority'.

Thus, the provision provides that Law of Sharia will apply to Muslims in the following matters:

(a) marriage, divorce, dower, adoption, guardianship, minority, bastardy and female relation,
(b) succession, inheritance and special property of females and partition.
(c) Gifts, waqfs, wills, legacies, and
(d) Caste or religious usages.

There are, however, two exceptions to the rule laid down by Section 4 (d) of the Law consolidation Act regarding the application of Personal Law i.e. the Courts cannot apply such law where:-

(a) any enactment has altered or abolished the Personal Law; or
(b) any valid custom has modified the Personal Law.

The Indian Shariat Act 1937, which applies Muslim Personal Law to the Muslims in rest of the country, is not applicable to the State of Jammu and Kashmir. On the other hand, the Muslims of the State can base their claim for the application of the Muslim Law only by virtue of the provisions of Sri Partap Jammu and Kashmir Laws Consolidation Act, Svt. 1977. The object of the Act was to recognize Personal Law of the parties as Rule of Decision in cases pertaining to family relations and of landed property. Section 4 of the Act, as said above, makes it clear that the primary rule of decision in all cases (where the matters referred to in the Section are involved) shall be Muslim Law (where the parties are Muslims) unless they prove that they are governed by custom and that the custom abrogates their Personal Law. The Board of Judicial Advisors as well as J&K High Court in catena of judgments laid down that in the matters of inheritance it is the Personal Law which is to apply to the parties and that there is no presumption in favour of custom. Custom can apply only when it is specifically pleaded and proved by the party alleging it.

In "Mst. Sadroo Vs Beli Ram", 2 J&K LR 311, it was held by the Division Bench that Section 4 (d) of the Jammu & Kashmir Laws Consolidation Act specifically lays down that the presumption in matters of inheritance is in favour of the Personal Law that is to say the parties will be presumed to be governed by Personal Law unless they prove that they are governed by custom and that custom abrogates their Personal Law. When a person pleads custom and basis his claim upon it, it is incumbent upon him to prove that custom by clear and reliable evidence. There is no presumption in favour of custom. It is not correct to say that even parties are agriculturists, they live in a village and the property is agricultural land, the primary presumption that parties are governed by their Personal Law is very much weakened.

In "Akbar Rather Vs Azizi", 4 J&K LR 264, it was laid down by Division Bench of J&K High Court that;

"It has been laid down quite clearly a number of times that ordinarily the parties are governed by thier Personal Law and that only exceptions are those in which one or the other party proves successfully that the Personal Law is abrogated by such customs as are found to be prevailing in the valley."

In "Mst. Khatooni Vs Lassa & Ors.", AIR 1959 J&K 52, it was held that a drastic custom which seriously derogates from the Personal Law of the parties cannot be lightly inferred or held to exist, where a custom is not so well established as to have the force of law it will have to be specifically pleaded and established if it is alleged in any particular case.

Implications of this Verse

What this means is that adoption does not change the relationship of a person: adoption does not end the blood relationship between the child and his real parents and siblings, nor does it create a real relationship between him and his adoptive parents and their children.

The practical implications of this view, on the one hand, is that all the rules which apply between blood relatives are still valid: for example, the child will still be mahram; that is an adopted child cannot marry his real siblings; he or she is also eligible for inheritance from the real parents; and there is no need for hijâbbetween the child and his or her real family. (With the adoption system in the West, it is quite possible that a person would end up marrying his or her siblings!)

On the other hand, the rules that apply between non-related persons are still valid. For example, adoption would not create the mahramiyyat between the child and the new family—an adopted girl will have to observe hijâb in presence of her adoptive father and brothers; similarly, the mother and sisters will have to observe hijâb in presence of the adopted son; the adopted child can even marry the child of the adoptive parents. In Islam, the right of inheritance is based on uterine relationship:

“Those related by blood are more entitled to (inherit from) each other in the Book of Allah.” (8:75)

However, the adoptive parents can always use their discretion to write up to one-third of their estate for their adopted child.

Inheritance

By adopting someone's child as one's own, the rightful and deserving heirs to the property of a man are deprived of their shares. Hence, Islam has made it Haraam (forbidden) for a father to deprive his natural children of inheritance. Allah has established the distribution of inheritance in order to give each eligible person his or her share. In matters of inheritance, the Quaran does not recognise any claim except those based on relationship through blood and marriage. The Quaran stipulates (what means); "And those who believed after [the initial emigration] and emigrated and fought with you - they are of you. But those of [blood] relationship are more entitled [to inheritance] in the decree of Allah. Indeed, Allah is knowing of all things." [Quaran 8;75].

Is Adoption legal in Islam?

If adoption means giving a loving home and family to a orphaned / displaced child and to look after and raise him just like you would do to your biological child, the answer is YES!. The only thing which is not legal is trying to change a child's biological identity -- which is actually something that is not possible logically. Islam totally allows Muslims to raise children who are not born to them, to look after them, and support them financially, emotionally and spiritually, but they must name the children after their biological fathers.

Islam encourages the believers to look after and take care of children who have no parents and to treat them like their children by birth. However, Islam's stance on adoption rests on the necessity of keeping the biological parents of the child always in the picture. Keeping the original surname of the child, and letting him know the identity of his birth parents are some of the conditions stipulated by the Islamic law when legalizing fostering. The reasons are thus: in Islam, children have automatic rights to inheritance from their biological parents, they cannot marry their Mahrams (unmarriageable persons) and they can marry from their adoptive family if no suckling took place. The rules of modesty / hijab exist between the grown child and adoptive family members of the opposite sex. If the child is provided with property/wealth from the biological family, adoptive parents are commanded to take care and not intermingle that property/wealth with their own. They serve merely as trustees and are bound to make the child owner of all such wealth once he/she reaches maturity. All these rules have to be taken into consideration for a Muslim adoption.

Describing the important rule of adoption and its logic, Allah Almighty says : "Allah has not assigned unto any man two hearts within his body, nor has He made your wives who you declare (to be your mothers) your mothers, nor has He made your adopted sons your sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. Call them by (the names of) their fathers: that is juster in the sight of Allah. But if you know not their fathers, then (they are) your brethren in the faith, and your clients. And there is no sin for you in the mistakes that you make unintentionally, (what counts is) the intention of your hearts. Allah is Oft-Forgiving, Most Merciful." (Qur'an 33: 4-5)

 

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