By Mohammed Wajihuddin and Maria Akram
Feb 23, 2014
In 1996, Shabnam Hashmi and her husband decided to adopt a baby girl. The adoption agency in Delhi was cooperative but clear that as Muslims, the couple could only be guardians of an adopted child since Muslim Personal Law doesn't consider an adopted child on a par with a biological one. Hashmi, who has a son, went ahead and brought home one-year-old Sehar, now 18. She captured their hearts, but Sehar's legal status has been a constant worry for Shabnam.
“All these years, I could raise her like my daughter, but she was not my legal heir. She could not get share in my property after my death,” says Hashmi. The reformist in her was outraged by the injustice. "Why should religion prevent you from exercising a right which will help an adopted child be treated like a biological one?" asks the activist, who took her case to court.
Hashmi's beliefs were echoed by the February 19 Supreme Court verdict in her case that ruled Muslims can adopt a child under the Juvenile Justice (Care and Protection of Children) Act as its enforcement cannot be obstructed by Muslim Personal Law. Prior to this, childless community members have satisfied parental instincts by assuming legal 'guardianship' of a child, entering into informal arrangements with relatives or sponsoring orphan children.
Maulana Khalid Rashid Firangimahli, imam of Lucknow Idgah and All India Muslim Personal Law Board's executive committee member, explains that according to Muslim Personal Law, an adopted child not only has no claim to parents' property after their death, but on reaching adulthood, becomes a Na-Mehram (not in blood relation) to the adoptee. That means the adopted individual becomes eligible to marry his/her adoptee and the adoptee's biological children. "If the child is male, once he becomes adult, the woman who has raised him should ideally observe Purdah from him as he is not a close relative. And he can be married to this woman's biological daughter, although she has been raised as his sister. It's is this unhappy scenario that Shariat wants to prevent," explains Maulana Firangimahli.
It is why Nusrat Ali*, a devout 65-year-old Muslim from Mumbai, tried to dissuade his son and daughter-in-law from adopting a girl child two years ago. "When I told them that the girl would become Na-Mehram to them, they became angry. They didn't listen and adopted a girl," says Ali, adding that while he visits his new granddaughter, he's not happy about the circumstances.
The option of assuming guardianship has its drawbacks. Hashmi explains that while the Hindu Adoptions and Maintenance Act ensures those adopted by parents of certain communities are entitled to the rights of a biological child, there is no similar act for Muslims. The community members can assume guardianship of a child under the Guardians and Ward Act, but it only gives parents legal rights over a boy until he is 18, a girl, 21 and gives the ward no inheritance rights.
When the guardianship arrangement is an informal agreement even tenuous boundaries cannot be established. In 1992, Dr Azhar Qureishi and his wife, who were childless for over a decade, approached an imam with a request to adopt his sixth child, a girl. "The imam agreed, but refused to sign papers as he said adoption was illegal in Islam. We raised the girl and gave her a good modern education," says Dr Qureishi, founder-president of Modern Educational, Social and Cultural Organisation (MESCO), a Mumbai-based NGO. However when Dr Qureishi arranged a match for the girl, the imam protested, wanting to make the choice himself. "I let the girl choose whether she would side with me or her biological father. She said she would marry the boy I had chosen, and soon they will celebrate their first wedding anniversary," says Dr Qureishi, admitting it has been difficult to reconcile to the precarious ties they share with their daughter.
Similarly, Shabana and Nadeem Iqbal of Agra were childless for 12 years before they were 'given' Shabana's brother Naeem's fifth daughter, Farheen. She was raised believing Shabana was her mother and Varisha her Mamaani (aunt). But at 22, her biological parents swooped in to claim her. "Farheen used to cry over the phone and incessantly request us to take her back but I couldn't as I have no right over her," says Shabana. At her wedding, both sets of parents competed for her affection, so she received two of everything, including cars and flats.
Couples often resort to sponsoring children because of the taboo around adoption. Hijab Rehman*, a Delhi homemaker, is sponsoring a girl child because her in-laws weren't comfortable with the idea of adoption. "They said the Hadith doesn't allow it," she says.
Hashmi, who would've been happier had the SC verdict declared adoption a fundamental right, believes the tide will turn with the recent ruling. But without the support of religious figureheads, community members believe the court judgement is of little value and official adoption rates are unlikely to go up. Maulana Firangimahli, for instance, believes the order will divide Muslims in two factions. "Those who follow Shabnam Hashmi and those who adhere to Shariat laws," he says. The schism is evident, with patriarchs like Ali calling the SC verdict an infringement while progressives like Dr Qureishi pointing to how the new ruling will help mainstream future generations. But in the end, as poet-lyricist Nida Fazli, who adopted a girl child a decade ago, puts it, "Human feelings and emotions are not captive to relationships which our society decides."
*Some names changed to protect identities