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Shabnam Hasmi v. UOI & Ors (2005) - Section 41 J J Act

Esheta Lunkad ,
  03 October 2020       Share Bookmark

Court :

Brief :
The judgment of Shabnam Hashmi provided the adoption as the Fundamental Right. It was permitted that any person irrespective of religion can adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000. s
Citation :
Petitioner: Shabnam Hasmi Respondent: Union of India & Ors. Citation: W.P. No. 470 of 2005

Bench:

  • Justice Ranjan Gogoi
  • Justice Shiva Kirti Singh
  • Justice Palanisamy Sathasivam

Issue:

  • Whether adoption of a child is a fundamental right?
  • In case of contradiction between Personal Law and Secular Law, what is going to be prevailed?
  • Whether caste, creed and religions affect the adoption procedure?

HAMA

 

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Facts:

Shabnam Hashmi, the petitioner, is an Indian Social Activist and Human Rights Campaigner. She is a Muslim woman who had adopted a young girl when she was small.

The petitioner approached the Supreme Court under Article 32 of the Indian Constitution praying for recognition of the right to adopt and to be adopted as a fundamental right under Part III of the Constitution of India.

There was an alternative prayer requesting the Court to lay down optional guidelines enabling the adoption of children by persons irrespective of religion, caste, creed, etc. and further for a direction to the respondent Union of India to enact an optional law the prime focus of which is the child with considerations like religion, etc. taking a hind seat.

Petitioner's Contentions:

The petitioner had requested thee court to put forward optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed etc.

Further, the petitioner also put a petition for a proper direction to the respondent Union of India to enact an optional law the prime focus of which is the child with considerable like religion etc. taking a seat.

It was also highlighted that as per guidelines of 2011 and JJ Rules, 2017 there is undue delay in processing of adoption cases at the level of Child Welfare Committees, the Adoption Recommendation Committees as well as the concerned courts.

It was also put in front of the court of law that the JJ Act, 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption.

It was also argued that the court should direct the states and UT under JJ Act, 2000 to implement Section 41 of the Act and to follow CARA guidelines.

It was also argued that Right to adopt is a fundamental right.

Respondent's Contentions:

It was contented that Islamic Law does not recognise an adopted child to be at par with a biological child. As per Islamic Law, it processes what is known as the ‘Kafala’ system under which the child is placed under a ‘Kafil’ who provides for the well being of the child remains the true descendant of his biological parents and not that of the ‘adoptive’ parents.

It was further put forward to the court of law that this system is recognised in UN Convention on Rights of the Child and therefore, directions should be issued to all the Child Welfare Committees to keep in mind and follow the principles of Islamic Law before declaring a Muslim child available for adoption under Section 41(5) of the JJ Act, 2000

Judgement:

The judgment of Shabnam Hashmi provided the adoption as the Fundamental Right. It was permitted that any person irrespective of religion can adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000.

Shabnam had only guardianship rights over a girl adopted by her as granted by the court because as per the Muslim Law, adoption is not allowed. She claimed that adoption should be allowed on humanitarian grounds and as a Fundamental Right as well.

Relevant Paragraph:

After the finality of this case, the judgment has permitted all the future intended parents to go for adoption process (can adopt a child) under the Juvenile Justice (Care and Protection of Children) Act, 2000 irrespective of religion and it was also held that this act is of secular nature for the purpose of adoption of children under the prescribed procedure.

 
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Published in Constitutional Law
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