By Hina Hafeezullah Ishaq
An adopted child has no inheritance rights in Islam. The only possible way to provide for such a child is either through a ‘gift’, made in her favour during the lifetime of the guardian/adoptive parent or through a will
Kamal and Amina had been married for 10 years. They had no children. Desperately conscious of the fact that they might never be able to have their own biological child, they decided to adopt. Incidentally, they lived in Pakistan and were Pakistani Muslim citizens. Content and hopeful with their decision, they embarked upon the harrowing task of finding a child to call their own. They wanted a newborn baby, preferably, but it proved to be a Herculean task. Finally, their prayers were answered and they managed to get an unwanted baby.
Ecstatic and over the moon they then wanted to formally and legally adopt the baby. Much to their horror, they found out that despite the hype being created in the media and social circles, they could not adopt the baby legally. Why? Simply because there are no adoption laws in Pakistan.
Adoption, as perceived by western societies, is a process whereby one person or couple assumes the parenting role of another and there is a creation of rights and responsibilities between the parent and the child. In this, the rights of the biological parents are extinguished and those of the adoptive parents are created.
Islam does not recognise adoption. In fact, it is specifically forbidden by virtue of the Quran:
“Nor has He made your adopted sons your (real) sons; that is simply a saying of your mouths. But Allah speaks the truth and guides you to the (right way). Call them by their fathers’ names, that is more just in the sight of Allah. But if you do not know their fathers, they are your brothers in faith and your ward...” (33:4-5).
In Pakistan, all our laws are required, by virtue of the constitution, to be in accordance with the Holy Quran. Since the concept of adoption is repugnant to Islam, there is no law that legalises adoption. The only legal remedy is to become the guardian of the child, whom one desires to adopt. A petition for guardianship has to be moved to the concerned court and the court has the power to appoint guardians of ‘person’ and ‘property’. However, this process cannot be termed as ‘adoption’, as it is a mere transfer of custody, at best.
When Kamal and Amina became the legal guardians of Ayesha, they thought it was going to be smooth sailing from there on. When Ayesha was 10, both her ‘parents’ died in a road accident. The child was left with no one to take care of her and had no property or source of income. Kamal and Amina had never thought to make provision for her.
An adopted child has no inheritance rights in Islam. The only possible way to provide for such a child is either through a ‘gift’, made in her favour during the lifetime of the guardian/adoptive parent or through a will. However, under Islamic law, only one-third of the total property can be disposed of through a will. If a person dies without leaving any biological children, his or her property is distributed amongst the legal heirs as specified in the Quran. Even Christian law does not recognise adoption; in Pakistan, the property of a Christian — in matters of inheritance and succession — is regulated by the Succession Act. According to this law, an adopted child is “not an heir or kindred entitled upon intestacy, to inherit the estate of his/her deceased adoptive parent”.
There is one anomaly in our law: the Stamp Act recognises the adoption deed as a document on which stamp duty is payable. An adoption deed is any document (other than a will) that records an adoption or confers or purports to confer an authority to adopt. Under Islamic law, although adoption is not recognised, in India and Pakistan, in areas where custom is given priority by legislation over general Mohammedan law, a special family or tribal custom of adoption will, if proved, prevail. There was a recent Supreme Court judgement whereby a registered adoption deed dated July 11, 1928, registered in Sialkot, was recognised as proving relationship. However, this does not mean that people of other religions cannot adopt in Pakistan.
In 2009, a law was passed for the protection and prevention of domestic violence. According to that law, a “child” includes “adopted, step or foster” child. A “domestic relationship” has been defined as living together in a household and includes related by adoption. However, the term ‘adopted child’ has not been explained.
There is no specific provision for adopted children under the maintenance laws in our country. However, relying on the Quran, the concept of kafalat (providing for someone) is very clear, especially the emphasis placed on the treatment of orphans. The courts have stepped in, on occasion, applying principles of equity and justice, to give relief to adopted children, as regards their maintenance and custody, but these judgements are far and few. It has been held in a recent Lahore High Court judgement that adopted children are entitled to maintenance — the bar lies only on inheritance.
There are many children like Ayesha. Once abandoned, then loved, only to be lost again and then made destitute with no parents, no siblings and no relatives. What happens to such children? They either end up in orphanages or various homes, or are taken on as domestic servants by the relatives of their once adoptive parents. There is a dire need for appropriate legislation, which safeguards the rights of children like Ayesha. It need not be termed adoption, but it needs to follow the guiding principles of equity in Islam. Nowhere does Islam condone that such children should be left uncared and unprovided for. For all those people who have ventured out and adopted a child, please think: your life is not limitless, it can end anytime and sometimes suddenly. The children you love will suffer irreparably in losing you and in losing the home and the entire life you have accustomed them to. Make provision now, before it is too late. Do not abandon your child to suffer a fate like Ayesha’s.
The writer is an advocate of the high court
Source: Daily Times, Lahore