Shabnam Hashmi vs Union of India

Shabnam Hashmi has taken legal action in the Supreme Court of India using Article 32 of the Constitution. She argues that according to Part III of the Constitution, every Indian citizen has the basic right to adopt a child, irrespective of their gender, religion, caste, or other factors. This right applies to everyone equally.

Case Name: Shabnam Hashmi vs Union of India

Equivalent Citation: AIR 2014 SC 1281

Date of Judgment: 19/02/2014

Court: Supreme Court of India

Petitioner: Shabnam Hashmi

Respondent: Union of India

Bench: P. Sathasivam, Ranjan Gogoi, Shiva Kirti Singh

Background of Shabnam Hashmi vs Union of India

Shabnam Hashmi, a prominent human rights activist, began her advocacy work in 1981, focusing on adult literacy. She adopted a girl but faced the issue of not being recognised as the child’s parent. According to Islamic law, a biological relationship is necessary to be called a parent. She filed a writ petition, not only to address her own situation but to represent all citizens facing similar challenges when adopting children.

In her petition, she highlighted the need for a change in personal laws to ensure that childless couples, irrespective of their religious backgrounds, could adopt children and provide them with proper care, emotional support and a nurturing environment.

Before this case, adoption was primarily recognised within the Hindu community, thanks to the Hindu Adoption and Maintenance Act of 1956. However, this act didn’t apply to other religious communities such as Muslims, Christians, Sikhs, etc. As a result, these communities turned to the Guardianship and Wards Act when adopting children, seeking to provide homes for countless homeless children.

The objective of these efforts was to encourage adoption across religious lines and offer loving homes to orphaned and abandoned children.

Under Section 2(2) of the Juvenile Justice (Care and Protection) Act of 2015, “adoption” is defined as the legal process through which childless couples become parents to adopted children, granting them all the privileges and rights enjoyed by biological parents.

Facts of Shabnam Hashmi vs Union of India

Shabnam Hashmi, the petitioner in this case, is an Indian social activist and human rights advocate. She is a Muslim woman who adopted a young girl when the child was still small. The legal argument presented was that the Juvenile Justice Act of 2000 is a secular law that permits any person, regardless of their religious beliefs, to adopt a child.

It was also emphasised that the court should instruct the states and union territories governed by the Juvenile Justice Act of 2000 to enforce Section 41 of the Act and adhere closely to the guidelines established by CARA (Central Adoption Resource Authority). Additionally, the argument was made in the court that the right to adoption is a fundamental right.

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

As an alternative request, the petitioner asked the Court to establish optional guidelines that would facilitate the adoption of children by individuals, regardless of their religion, caste, creed, etc. Furthermore, there was a plea for the Union of India to enact an optional law, primarily focused on the welfare of the child, with considerations such as religion taking a secondary role.

Issues Raised

In Shabnam Hashmi versus Union of India, the following issues were raised:

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

Petitioner’s Arguments

The petitioner in Shabnam Hashmi vs Union of India requested the court to establish optional guidelines for the adoption of children, irrespective of factors like religion, caste, or creed.

Additionally, the petitioner urged the court to direct the Union of India to create an optional law focused primarily on the welfare of the child, with considerations like religion being secondary.

The petitioner pointed out that, according to the 2011 guidelines and the JJ Rules of 2017, there were significant delays in processing adoption cases at various levels, including Child Welfare Committees, Adoption Recommendation Committees and the courts.

It was emphasised that the Juvenile Justice Act of 2000 is a secular law, allowing any person, regardless of their religious affiliation, to adopt a child.

The argument in Shabnam Hashmi v Union of India was made that the court should instruct the states and union territories governed by the Juvenile Justice Act of 2000 to implement Section 41 of the Act and adhere to CARA guidelines.

The petitioner in Shabnam Hashmi vs Union of India further contended that the right to adopt is a fundamental right.

Respondent’s Arguments

The respondent in Shabnam Hashmi v Union of India argued that Islamic Law does not equate an adopted child with a biological child. According to Islamic Law, the ‘Kafala’ system is followed, where the child is placed under a ‘Kafil’ who provides for the child’s well-being. The child remains the true descendant of their biological parents and not of the adoptive parents.

It was further argued in Shabnam Hashmi vs Union of India that this system is recognised in the UN Convention on the Rights of the Child and therefore, Child Welfare Committees should consider and follow the principles of Islamic Law before declaring a Muslim child available for adoption under Section 41(5) of the Juvenile Justice Act of 2000.

Judgement of Shabnam Hashmi vs Union of India

In the judgment of the Shabnam Hashmi case, the bench unequivocally affirmed that adoption is a fundamental right accessible to every citizen, without regard to their caste, creed, or religion. The Juvenile Justice (Care and Protection) Act of 2000 allowed for adoption regardless of religious or caste considerations.

While the petitioner in Shabnam Hashmi vs Union of India may not have provided extensive evidence on this matter, the court upheld the petitioner’s plea and declared that the right to adopt a child falls within the purview of Part III of the Constitution as a Fundamental Right. This ruling in Shabnam Hashmi vs Union of India affirmed that everyone possesses an equal right to adopt a child, irrespective of their religion, caste, creed, gender, or any other factors.

Furthermore, the bench in Shabnam Hashmi vs Union of India clarified that Muslim personal laws do not formally recognise adoption, nor do they prohibit childless couples from adopting and caring for a child’s emotional and material well-being. When a couple adopts a child, they are rightfully regarded as the child’s parents and not mere guardians. The Juvenile Justice Act of 2000 permits adoption, even in cases where personal laws do not explicitly address adoption. This reaffirms the principle that every couple has the right to be parents and every child has the right to be adopted, irrespective of factors such as gender, religion, caste, or creed.

Shabnam Hashmi vs Union of India Summary

In the case of Shabnam Hashmi v Union of India, the Supreme Court of India affirmed that adoption is a fundamental right accessible to all citizens, regardless of caste, creed, or religion, under the Juvenile Justice (Care and Protection) Act of 2000.

The court ruled that every individual has an equal right to adopt a child, irrespective of their gender, religion, or caste. It clarified that while Muslim personal laws do not explicitly recognise adoption, they also do not prohibit childless couples from adopting and providing for a child’s well-being.

This latest judgement of supreme court on adoption in Shabnam Hashmi vs Union of India emphasised the right of every couple to be regarded as parents when adopting a child, reinforcing the principle of equal adoption rights for all children, regardless of their background.