Adoption in Islam: Should Muslims Keep Following a 7th Century Law
By Arshad Alam, New Age Islam
25 January 2022
Most Muslims Are In Dilemma Whether They
Can Change Something That Was Practiced By The Prophet Himself.
Main Points:
1.
The
NCPCR has criticized Deoband for their position on adoption.
2.
Deoband
has long argued that adopted children are not like ones.
3.
The
Prophet of Islam married the wife of his adopted son.
4.
Most
Muslims are confused whether they can change something that was mandated by the
Prophet himself.
-------
Recently the National Commission for the
Protection of Child Rights (NCPCR) had castigated the Dar al Ulum Deoband for
certain ‘misleading fatwas’ which harm the interest of children. The issue in
question is that of adoption wherein the position of NCPCR is different from
that of Deoband. Following centuries of legal practice, the Deoband has taken
the position that while Muslims couple can adopt, the adopted son or daughter will
not be considered as real children. In short, no property rights will devolve
on the adopted child. Moreover, when such an adopted child reaches puberty,
Islam mandates that proper purdah should be observed between the adopted son
and his mother or between the adopted daughter and her father.
While the law of the land treats adopted
children as real, Islam has a different take on the issue. In 2014, Muslim
couples were permitted to adopt by the Supreme Court under the Juvenile Justice
Act. But for observant Muslims, this poses a problem as their religion does not
make any provision for it. The reasons lie in the life history of Prophet
Muhammad who is seen as the perfect manifestation of Islamic faith. Muslims are
obliged to follow the path shown by the Prophet. However, Islamic history tells
us that the Prophet ended up marrying the wife of his adopted son, Zaid. It
appears that before this incident, the Arab society permitted adoption in the
fullest sense. But since the Prophetic way became the Sunnah, whatever the
Prophet did became the new Islamic norm. And couple of centuries later, it
became the Islamic law. Henceforth, Muslims were allowed to care for orphans
but could not treat them as their own sons or daughters; far less devolving any
property rights on them.
The NCPCR is right in highlighting that
such rulings from the Deoband seminary infringe on the rights of children.
However, there are many other things going on in this country which do the
same. The NCPCR, for example, was silent when schools were burnt during the
Delhi riots, affecting the fundamental rights of children. In selectively
highlighting the regressive opinion of Deoband with regard to adoption, it
lends itself to the criticism that it is promoting Islamophobia.
And this is what the Students Islamic
Organization (SIO) which is the student wing of Jamat e Islami seems to
suggest. It accused the NCPCR’s statement as ‘yet another attempt at targeting
madrasas and their education by cherry-picking some fatwas and sensationalizing
them’. It also stated that fatawa is a personal opinion of religious scholars
and none of them carry any legal sanctity or institutional approval. The SIO is
also right to argue that Indian Constitution guarantees freedom of religion to
minorities. But it overlooks the fact that such freedoms should not transgress
the rights of individuals, especially children and women.
It is one thing to find fault with the
NCPCR for their selectivity but quite another to not recognize that the issue
of adoption remains a peculiar problem within the Muslim society. The SIO is
doing precisely that: it is putting a veil over the issue so that the problem
cannot be discussed openly. Madrasas have been targeted before but accepting
this does not mean that everything about these institutions is beyond reproach.
Moreover, if there is a fatwa from Deoband, then it carries institutional
weight behind it. It is certainly not legally enforceable but we should not
forget that millions of Muslims follow it as a statement of Islamic truth. And
Deoband is not known for its progressiveness, rather through its fatawa, it has
time and again reminded us of its antediluvian mindset.
Here are two examples of their fatwa on
the issue of adoption:
World over, traditional institutions do
transform themselves with times. The Christian church was extremely dogmatic
during its heydays but today it has accepted even gay marriages as a move
towards greater inclusion. But it is a pity to observe that Islamic
institutions take special pride in resisting new social and normative changes.
The Muslim position on adoption, for
example, has not changed for several centuries. Imagine the plight of a Muslim
couple who wants to adopt a child but is advised that they can only become its
guardians for limited period of time. Imagine the trauma of a Muslim mother or
father when they are told to observe purdah from the child that they have
brought up since infancy. It is as if the religion itself is incapable of
appreciating human sentiments. It is as if the religion of Islam condemns
childless couple to have sub-human feelings towards their own children.
There is something fundamentally wrong with
the way Islamic legal code has been designed. What religion stops human beings
from showering love and affection towards their adopted child? What kind of
religion would expect that a mother or son could develop a feeling of lust
simply because adoption is involved?
One might go on arguing that ‘others’ seem
to take an unhealthy interest in Islam. But we as Muslims need to recognize
that there is something unhealthy indeed about our religious law. And it is
only us Muslims who can put a stop to such thinking and practice. Most of us
are in a dilemma over changing something that was mandated by the Prophet
himself. But then, we need to ask if Islam is all about following the Prophet
or is it about a connect with the Almighty? As Muslims, should we be dictated
by the contexts and moral standards of 7th century Arabia or should we chart
our own contemporary course?
-----
A regular columnist with
NewAgeIslam.com, Arshad Alam is a writer and researcher on Islam and Muslims in
South Asia.
URL: https://www.newageislam.com/debating-islam/adoption-muslims-7th-century-law/d/126232