Nizamuddin has written to Dr Kazi over his latest article “Challenge SC Judgment on Shabnam Hashmi Child Adoption Petition” published by BeyondHeadlines. BH is producing the reply of Nizamuddin to Dr Kazi below. – Editor
Dear Dr Kazi,
I read your posting on the Supreme Court Judgment in Adoption. The issue is not vexed nor it is complex except the way it is (mis)understood by many. It deserve no such action if read carefully rather it recognises the prevailing Personal Laws in the country. To bring clarity, eminent lawyer, YH Muchhala intervened and put it in perspective (see below).
Mr. Y.H. Muchhala’s note on SC Judgment on Adoption
New Delhi, Feb. 21: Mr. Yusuf Hatim Muchhala, an eminent legal mind of the country, has classified the implications of the Supreme Court judgment of February regarding adoption of children by Muslim couples.
The Mumbai-based lawyer has released the following terse note on the judgment that clarifies many misgivings about it.
1. All India Muslim Personal Law Board contention that Right to adopt and of a child to be adopted cannot be declared as a Fundamental Right has been accepted by the Hon’ble Supreme Court with due respect and consideration to the fact that conflicting beliefs and practices are prevailing in the country on this issue at this stage. The Hon’ble Supreme Court has unequivocally observed that the faith / tradition based law must be respected and cannot be steamrolled by enacting Uniform Civil Code at this stage. The attempt of the Petitioner (Mrs. Shabnam Hashmi) to elevate the right to adopt and the right of a child to be adopted at the level of Fundamental Right has failed. Had the Petitioner succeeded, any principle of law which is contrary to Fundamental Right would have become null and void.
2. Principles of personal law would always continue to govern any person who chooses to so submit himself to it and that the JJ Act, 2000 does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires on to follow his own personal law. The Supreme Court in other words has given freedom of choice to select between personal law and statutory law to the concerned party.
3. The Hon’ble Supreme Court has referred to Special Marriage Act, 1954 which has given such freedom of choice to every citizen either to marry as per the provisions of the Act or in accordance with the personal laws of the parties. Such optional civil code has been in existence since 1954. The Juvenile Justice Act, 2000 is another piece of legislation in the direction on the question of providing protection to and upbringing of neglected, destitute or surrendered children. These two Acts have never ever been challenged by the All India Muslim Personal Law Board.
4. However, the Court has not given any directions to the Child Welfare Committee as requested by the All India Muslim Personal Law Board to the effect that before a child is certified to be free for adoption, the Child Welfare Committee in respect of a Muslim child or parents should explore the possibilities of providing protection and upbringing of such a child as per principles of Kafala. g
The wisdom demands that no such act should be initiated to provide the appeasement tool in a run up to the election. The Saffron brigade is waiting to grab such and we should restrain ourselves. Of course, the political fringe would like to use to serve their interest. However, the above view from the legal lumen airy should be enough to behave wisely rather than politicising the issue.