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FILIATION AND ADOPTION AMONG MUSLIMS IN INDIA: THE QUAGMIRES OF A RELIGIOUS MINORITY LAW

Published online by Cambridge University Press:  17 January 2020

Jean-Philippe Dequen
Jean-Philippe Dequen*
Affiliation:
Research Associate, School of Oriental and African Studies, University of London
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Abstract

Filiation among Muslims in India is governed by Muslim personal law, a largely uncodified corpus of key Islamic legal treatises that has subsequently been interpreted and applied through the Common Law frame of British colonial courts and the post-Independence Indian judicial system by virtue of the Muslim Personal Law (Shariat) Application Act 1937. Muslim personal law recognizes only legitimate filiation resulting from a valid or irregular marriage, barring illegitimate children from maintenance and intestate succession and prohibiting adoption. However, a number of legislative enactments have modified key aspects of the law of filiation among Muslims: shifting the presumption of legitimacy arising from a valid marriage to the time of the wedding, rather than the time of conception; invalidating the doctrine of dormant fetus; and lifting certain disabilities incurred from illegitimacy. Further, although adoption based on customary law is somewhat common in India and has been recognized by courts, its effect among Muslims has tended only to lift the bar to paternal succession and seldom creates filiation with the adoptive family. Notwithstanding, following the enactment of the Juvenile Justice (Care and Protection of Children) Act 2000 and its subsequent amendments, an optional secular legal framework for adoption is now available to Muslim prospective parents. The procedure set forth by the Act is nonetheless unwieldly and implementation faces the very practical difficulties of the state in managing and protecting the vast number of destitute and abandoned children in India, for the most part with an unknown filiation.

Keywords

Muslim personal lawEvidence ActadoptionJuvenile Justice (Care and Protection of Children) Actcustomary lawfāsid marriageConstitution of Indialegal pluralism
Type
Article Symposium
Information
Journal of Law and Religion , Volume 34 , Issue 3 , December 2019 , pp. 336 - 355
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2020

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Footnotes

1

The author writes in his personal capacity. The opinions expressed in this article are the author's own.

References

2 For an example of the colonial conceptualization and application of Muslim personal law in South Asia, see Abbasi, Zubair, “Islamic Law and Social Change: An Insight into the Making of Anglo-Muhammadan Law,” Journal of Islamic Studies 25, no. 3 (2014): 325–49CrossRefGoogle Scholar; Chaudhry, Faisal, “Rethinking the Nineteenth-Century Domestication of the Shari'a: Marriage and Family in the Imaginary of Classical Legal Thought and the Genealogy of (Muslim) Personal Law in Late Colonial India,” Law and History Review 35, no. 4 (2017): 841–79CrossRefGoogle Scholar.

3 According the 2011 census, Muslims represent 14.2 percent of the Indian population, thus constituting the second largest religious community after Hindus (79.8 percent). Census of India, accessed November 24, 2019, http://www.censusindia.gov.in/2011census/C-01.html (select data for India).

4 For a comparative analysis of institutional and normative unification, see Sezgin, Yüksel, Human Rights under State-Enforced Religious Family Laws in Israel, Egypt and India (Cambridge: Cambridge University Press, 2013)CrossRefGoogle Scholar.

5 For an example of the evolution of the judiciary toward Muslim personal law in relation to post-divorce maintenance, see Menski, Werner, “The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda,” German Law Journal 9, no. 3 (2008): 221–50CrossRefGoogle Scholar. Regarding unilateral divorce at the husband's behest, see Dequen, Jean-Philippe, “Reflections on the Shayara Bano Petition, a Symbol of the Indian Judiciary's Own Evolution on the Issue of Triple Talak and the Place of Muslim Personal Law within the Indian Constitutional Frame?,” Sudasien-Chronik/South Asian Chronicle 6 (2016): 37–60Google Scholar.

6 For an analysis of the incorporation of the notion of the best interests of the child within the Indian context in relation to guardianship, see Dequen, Jean-Philippe, “India,” in Parental Care and the Best Interests of the Child in Muslim Countries, ed. Yassari, Nadjma, Möller, Lena-Maria, and Gallala-Arndt, Imen (The Hague: Asser Press, 2017), 29–61CrossRefGoogle Scholar.

7 In accord with article 25(2)(b) of the Constitution of India, in order to “[provide] for social welfare and reform … to all classes and sections of Hindus,” the Indian Parliament actively codified Hindu law through a series of statutes in the 1950s, the most significant in terms of filiation being the Hindu Marriage Act 1955 (Section 16 having been amended in 1976 to establish legitimate status of children born out of a void or voidable marriage) and the Hindu Adoptions and Maintenance Act 1956. On the other hand, Muslim personal law has seldom been the object of legislative enactments, these only partially codifying certain Islamic norms and done, moreover, at the Muslim community's request. See Mussalman Wakf Validating Act 1913; Dissolution of Muslim Marriage Act 1939; Wakf Act 1954 (most recently amended in 2013); the Muslim Women (Protection of Rights on Divorce) Act 1986.

8 It is only of late that the Supreme Court, as well as some High Courts, has ventured toward new interpretations of Islamic law, not always without controversy. See, in regard to post-divorce maintenance, Mohd. Ahmed Khan v. Shah Bano Begum and Ors 1985 SCR (3) 844; relating to unilateral divorce Mohammad Naseem Bhat v. Bilquees Akhter and Anr 2012 (4) JKJ 318; Shayara Bano v. Union of India and Anr. (2017) 9 SCC 1, especially regarding Joseph J.’s separate judgment.

9 Marghinani, Ali ibn Abi Bakr, The Hedaya: Commentary on the Islamic Laws, trans. Hamilton, Charles, 2nd ed. (New Delhi: Kitab Bhavan, 2008)Google Scholar.

10 See Baillie, Neil B. E., ed., Digest of Moohummudan Law on the Subjects to Which It Is Usually Applied by British Courts of Justice in India, 2nd ed., 2 vols. (London: Smith, Elder, 1875)Google Scholar, who includes it among other Islamic sources.

11 See Wilson, Roland, Anglo-Muhammadan Law, 5th ed. (Calcutta: Thacker, Spink, 1921)Google Scholar; Mulla, Dinshah Fardunji, Mulla Principles of Mahomedan Law, ed. Khan, Iqbal Ali, 21st ed. (Delhi: Lexis Nexis, 2016)Google Scholar; Tyabji, Faiz Badruddin, Muslim Law: The Personal Law of Muslims in India and Pakistan, ed. Tayyibji, Muhsin, 4th ed. (Bombay: Tripathi, 1968)Google Scholar; Fyzee, Asaf Ali Asghar, Outlines of Muhammadan Law, 5th ed. (New Delhi: Oxford University Press, 2005)Google Scholar.

12 Ali, Ameer, Mahommedan Law: Compiled from Authorities in the Original Arabic, 2 vols., 4th ed. and 5th ed. (New Delhi: Himalayan Books, 1985)Google Scholar.

13 Such as Mahmood, Tahir, The Muslim Law of India (Allahabad: Law Book Company, 1980)Google Scholar.

14 See Compendium of Islamic Laws (New Delhi: All India Muslim Personal Law Board, 2002)Google Scholar.

15 See Rajah Deedar Hosseen v. Zuhooroon Nissa (1841) 2 Moo. I.A. 441 in relation to shīʿa law; Mohamed Ibrahim v. Ghulam Ahmad (1864) I Bom. H.C.R. 236 in regard to shāfiʿī law and the possibility to change juristic school.

16 See Dastūr al-‘amal (Code of Conduct 1967), Section 18 (reproduced in Mahmood, Tahir, Muslim Law in India and Abroad, 2nd ed. [Gurgaon: Universal Law Publishing, 2016], 257)Google Scholar, whereby “an Ismaʼili may adopt a child or children after obtaining the previous permission of the Council.”

17 See Oudh Estates’ Act 1869, Section 29 on the right of a taʻluqdār (landowner) to adopt.

18 The adoption (of a son) called pisar parvardah, has been recognized as customary law through the Shri Pratap Jammu and Kashmir Law (Consolidation) Act 1977 [1920 A.D.], Section 4 (d). Adoption not being one of the subject matters enumerated in the recent Jammu and Kashmir Muslim Personal Law (Shariat) Application Act 2007 would suggest such custom is still legally applicable in Kashmir.

19 See Ashoka Kumar Thakur v. Union of India and Ors (2008) 6 SCC 1.

20 Adopted November 20, 1989, entry into force September 2, 1990, 1577 UNTS 3 (CRC). It was ratified by India on November 12, 1992; however, it is worth mentioning that with India being a dualist system, the Convention on the Rights of the Child is not directly actionable before the courts. It was nonetheless implemented in multiple municipal statutes, most notably the Juvenile Justice (Care and Protection of Children) Act 2000, amended in 2006, and it has now been replaced by the Juvenile Justice (Care and Protection of Children) Act 2015.

21 Formerly section 488 of the Code of Criminal Procedure 1898.

22 See Goa, Daman and Diu (Administration) Act 1962.

23 “Renoncants” were Indian residents who had opted to be governed by French law during the colonial era and who retained this right after the territory's cession to India in 1962. See Pondicherry (Extension of Laws) Act 1968.

24 Articles 372 and 372A.

25 Article 13(1).

26 Article 32(A) provides that “[t]he Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of the rights conferred by this Part [i.e., Part III—Fundamental rights].” Article 226 provides equivalent powers to the High Courts within their jurisdiction.

27 For a review of public interest litigation in India, see Deva, Surya, “Public Interest Litigation in India: A Critical Review,” Civil Justice Quarterly 28, no. 1 (2009): 19–40Google Scholar.

28 Article 13(2)(b) defines “laws in force” as including “laws passed or made by Legislature or other competent authority,” the term law including “ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law” (article 13(3)(a)).

29 See State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84, where Gagendragadkar J. states that the framers of the constitution “must have been aware that these personal laws needed to be reformed … yet they did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the Constitution and so they did not intend to include these personal laws within the definition of the expression of ‘laws in force.’” This position has been consistently upheld by the apex court, notably regarding Muslim personal law: see AWAG [Ahmedabad Women Action Group] and Ors v. Union of India AIR 1997 SC 3614.

30 Shayara Bano v. Union of India and Anr. (2017) 9 SCC 1 set aside the practice of ṭalāq al-bidʻah (innovative divorce, such as triple ṭalāq) in a 3–2 plurality decision that saw the ruling majority split between two distinct rationales: whereas Nariman and Lalit JJ. considered Muslim personal law as falling within the ambit of article 13(1) and therefore set aside the practice based on its contravening article 14 of the Constitution of India for arbitrariness, Joseph J. prohibited the practice based on its lacking a foundation in Islamic theology and thus on its nonrecognition within Islamic law itself. In connection with Khehar CJ. and Nazeer J.’s dissenting opinion, a majority of the constitutional bench (three of the five justices) can therefore be considered as having upheld the State of Bombay v. Narasu Mali AIR 1952 Bom 84 precedent.

31 Mohd. Allahdad v. Mohd. Ismail Khan ILR 10 All. 289 (1888).

32 See Wilson, Anglo-Muhammadan Law, 161; Ali, Mahommedan Law, 2:238.

33 Zakir Ali v. Sograbi AIR (1918) 43 IC 883.

34 Tyabji, Muslim Law, 204.

35 Sibt Muhammad v. Muhammad AIR (1926) All. 589.

36 Sampatia v. Mir Mahbood Ali AIR (1936) All. 528.

37 Mt. Rahim Bibi v. Chiragh Din AIR (1930) Lah. 97.

38 Ismail Ahmed Peepadi v. Monin Bibi AIR (1941) PC 11.

39 See Abdul Ghani v. Taleh Bibi PLD (1962) Lahore 531; Hamida Begum v. Murad Begum PLD (1975) SC 624.

40 Submma v. Venkata Reddi AIR (1950) Mad. 394; A.G. Ramachandran v. Shamsunnissa Bivi alias Razia Begum AIR (1977) Mad. 182.

41 Mt. Kaniza v. Hasan AIR (1926) Oudh 231.

42 Abdul Rahman Kutty v. Aisha Reevi AIR (1960) Ker. 101.

43 However, a declaration of illegitimacy cannot be issued: see Renubala Moharana and anr. v. Mina Mohanty and ors. (2004) 4 SCC 215 on the meaning of Section 7(1) of the Family Courts Act 1984.

44 Constituted under Section 27 of the Juvenile Justice (Care and Protection of Children) Act 2015, Child Welfare Committees have competence to declare a child adoptable, see also Section 2(23).

45 Family Courts Act 1984, Section 4(4)(a).

46 Family Courts Act 1984, Section 13.

47 The most prominent being the All India Muslim Personal Law Board.

48 See Vishwa Lochan Madan v. Union of India & Ors. (2014) 7 SCC 707.

49 Although the distinction remains relevant, most personal laws have been amended either to forgo its effects or at least attenuate them in the case of a voidable or void marriage: see Section 16(3) of the Hindu Marriage Act 1955; Section 26(3) of the Special Marriage Act 1954; Section 3(2) of the Parsi Marriage and Divorce Act 1936; and Section 21 of the Indian Divorce Act 1869.

50 See Baillie, Digest of Moohummudan Law, 1:391; Marghinani, The Hedaya, 136.

51 The Supreme Court of India revitalized the distinction between shīʿa and ḥanafī law in Gohar Begam v. Suggi (1960) 1 SCR 597.

52 Palani v. Sethu AIR (1924) Mad. 677. It thus follows that the potentially unlawful (zināʼ) circumstances of the conception are equally irrelevant provided a lawful marriage ensues.

53 Kahan Singh v. Natha Singh AIR (1925) Lah. 414. Hence, the premature birth of child shall not raise any presumption of illegitimacy: Dukhtar Jahan v. Mohammad Farooq AIR (1987) SC 1049.

54 Abdul Rahiman Kutty v. Aysha Beavi AIR (1966) Ker. 101. Conversely, a premarital pregnancy known to and not objected to by the husband at the time of the marriage will not be considered as a valid ground for challenging the marriage at a later date: Amina v. Hassan Koya 2003 (3) SCR 999.

55 See Baillie, Digest of Moohummudan Law, 1:411; Sadik Husain v. Hashin Ali (1916) 43 IA 212.

56 See Baillie, Digest of Moohummudan Law, 2:153; Ali, Mahommedan Law, 2:227.

57 Shaik Fakruddin v. Shaik Mohammed Hasan AIR (2006) AP 48.

58 Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576, where the court states that “in our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail,” 586; also Dipanwita Roy v. Ronobrotto Roy (2014) 2 SCC 126.

59 India is party to the Convention on the Elimination of All Forms of Discrimination against Women, adopted July 30, 1980, entry into force September 3, 1981, 1249 UNTS 13 (CEDAW), subject to some reservations, notably in regard to article 16(2), requiring states to render marriage registration compulsory. Despite this reservation, the Supreme Court has ordered the government to take measures to enforce registration (Seema v. Ashwini Kumar AIR (2006) SC 1158). However, only a minority of regional states already have such provisions, and no central statute has been enacted so far (see, for example, The Kazis (Maharashtra Amendment) Act 1978; Assam Moslem Marriages and Divorces Registration Act 1935).

60 By contrast, acknowledgment (explicit or tacitly through conduct) is considered conclusive proof: Mahomed Amin v. Vakil Ahmed AIR (1952) SC 358.

61 Akbar Husain Sahib v. Shoukhah Begam Saheba (1915) 31 IC 657

62 Whereas shīʿa law abides by physiological realities and extends the gestation period only to a maximum of ten lunar months, ḥanafī jurists have extended it up to two years, while shāfiʻī law allows for a period up to four years. See Ali, Mahommedan Law, 2:227–28.

63 Mt. Kaniza v. Hasan AIR (1926) Oudh 231; Abdul Rahman Kutty v. Aisha Reevi AIR (1960) Ker. 101.

64 Janab Ali Mia v. Nazamaddin Pradhania (1915) 29 IC 871.

65 Ameer Ali, however, considers that if the second marriage was contracted on the bona fide belief that the wife was either widowed or divorced, the consequences of such union would be that of an irregular marriage, thus legitimizing the offspring, see Ali, Mahommedan Law, 2:240. To lift the irregularity of the second marriage, the first marriage must then be dissolved: Ata Muhammad v. Saiqul Bibi (1910) 7 IC 820.

66 Mohammad Shafi v. Rounag Ali AIR (1928) Oudh 231.

67 For a more detailed exposition on the different forms of irregular marriages, see Ali, Mahommedan Law, 2:239–50.

68 See Ihsan Hassan Khan v. Panna Lal AIR (1928) Pat. 19.

69 “An invalid marriage that has been consummated is joined to valid ones in some of their effects, among which is the establishment of paternity”: Baillie, Digest of Moohummudan Law, 1:392.

70 Kotwal Gouri Nand v. Ghuku Latha (1937) 39 PLR (J&K) 51.

71 Mohd. Allahdad v. Mohd. Ismail (1888) ILR 10 All. 289.

72 Mohd. Allahdad v. Mohd. Ismail (1888) ILR 10 All. 326–29.

73 Mohd. Allahdad v. Mohd. Ismail (1888) ILR 10 All. 333.

74 Mohd. Allahdad v. Mohd. Ismail (1888) ILR 10 All. 334–45.

75 Habibur Rahman v. Altaf Ali AIR (1922) PC 159.

76 Mohammad Amin v. Vakil Ahmad AIR (1952) SC 358.

77 See Rafiqa Begam v. Aisha AIR (1944) All. 598; Rashan Bai v. Suleman AIR (1944) Bom. 213.

78 See Habibur Rahman v. Altaf Ali AIR (1922) PC 159; Usman Miyan v. Vali Mohd. (1916) AIR Bom. 28; Mohamed Khan Sahib v. Ali Khan Sahib AIR (1981) Mad. 209.

79 S. A. Hussain v. Rajamma AIR (1977) AP 152.

80 As seems to be the case in Sadik Husain v. Hashim Ali (1916) 43 IA 212.

81 Abdool Razak v. Aga Mahomed Jaffer Bindaneem (1894) 21 IA 56; Habibur Rahman v. Altaf Ali AIR (1922) PC 159; Jiand Khan v. Province of Sind AIR (1948) Sind 130.

82 Habibur Rahman v. Altaf Ali AIR (1922) PC 159.

83 Baillie, Digest of Moohummudan Law, 1:411.

84 Mohd. Allahdad v. Mohd. Ismail (1888) ILR 10 All. 289.

85 See Habibur Rahman v. Altaf Ali AIR (1922) PC 159.

86 The father being the natural guardian of the child. See Section 19 in conjunction with Section 25 of the Guardians and Wards Act 1890.

87 Marghinani, The Hedaya, 146; see also Baillie, Digest of Moohummudan Law, 1:459.

88 Mohd Ramzan Magray v. Taja S.L.J. 1983 J&K 188. The Majority Act 1875 sets the majority age at eighteen years.

89 Baillie, Digest of Moohummudan Law, 1:462.

90 “[W]here the child is possessed of property, the maintenance is provided from that, as it is a rule that every person's maintenance must be furnished from his own substance, whether he be an infant or an adult.” Marghinani, The Hedaya, 147.

91 Ibrahim Fathima v. Mohamed Saleem AIR (1980) Mad. 82.

92 Ibrahim Fathima v. Mohamed Saleem AIR (1980) Mad. 82.

93 See Mohammad Shamsud Din v. Noor Jehan Begum AIR (1955) Hyd. 144.

94 While the Madras High Court considered that the duty of maintenance was absolute, irrespective of where the children lived (Kachi Muhaldin Tharaganar v. Sainambu Ammal AIR (1941) Mad. 582), the Bombay High Court has subsequently decided that such maintenance may be declined if the children refused to live with their father without reasonable cause (Dinsab Kasimbad v. Mahomed Hussain AIR (1945) Bom. 390).

95 Siraj Sahebji Mujawar v. Roshan Siraj Mujawar AIR (1990) Bom. 344.

96 Noor Sabha Khatoon v. Mohd. Quasim (1997) 6 SCC 233. In the case of the impossibility of maintaining children due to poverty, the duty rests upon the mother and then the paternal grandfather under ḥanafī law. Shīʿa law is slightly different, as it first contemplates transferring the duty to the paternal grandfather before the mother.

97 The duty of maintenance, which rests upon the father under Muslim personal law, can apply only to legitimate relationships, which in Islamic law are imprecisely entangled with the establishment of paternity itself.

98 Section 125(1)(b), formerly Section 488 of the Code of Criminal Procedure 1898. Unlike Muslim personal law, however, it does not provide for maintenance of an unmarried daughter who has attained majority.

99 Noor Sabha Khatoon v. Mohd. Quasim (1997) 6 SCC 233.

100 Ironically, this will allow the illegitimate child of a Muslim father and a Hindu mother to claim maintenance from his/her father under the Hindu Adoption and Maintenance Act 1956 (see K. M. Adam v. Gopala Krishnan AIR (1974) Mad. 232).

101 Baillie, Digest of Moohummudan Law, 2:305.

102 Baillie, Digest of Moohummudan Law, 1:703.

103 Rahmat Ulah v. Maqsood Ahmad AIR (1952) All. 640 at 641.

104 Instituted in every district, a Child Welfare Committee (Chapter V of the JJ Act 2015) has the responsibility, inter alia, to take cognizance and dispose of cases for the protection, treatment, development, and rehabilitation of children in need of care (Section 29(1)), duties that include, notably, placing a child in foster care (Section 30(v)) or in a relevant institution (Section 30(vii)), including a specialized adoption agency, and declaring an orphaned, abandoned, or surrendered child legally free for adoption (Section 30(xi)).

105 Section 35(1) of the JJ Act 2015.

106 Section 35(2 and 3).The parents are given two months from the execution of the deed to reconsider their decision.

107 Section 38(2).

108 Section 39(1) and Section 40(1).

109 Regional state governments are required to enact rules for the establishment of sponsorship programs, designed especially to help parents (in particular, widowed, divorced, or abandoned mothers and parents with life-threatening diseases) in the upbringing of their minor child through nutritional, medical, educational, or other types of support (see Section 45).

110 Section 31 (these include a range of authorities and persons, including a “public spirited citizen” (Section 31(v)) or the child him- or herself (Section 31(vi)).

111 Section 37(1). See also Section 44 in relation to foster care.

112 Section 38(1).

113 Section 3(b) of the Adoption Regulations 2017; in this respect, both the child's (Schedule II) and the adoptive parents’ religion (Schedule VII) must be provided in the respective administrative forms necessary for an adoption application.

114 Section 59(1).

115 Section 56(1) and 58(1).

116 See Chetan Chauhan, “About 20m Kids in India Orphans: Study,” Hindustan Times, July 27, 2011, https://www.hindustantimes.com/delhi-news/about-20m-kids-in-india-orphans-study/story-CM5xsW91McYBjQ3WLhh6MO.html, based on a study by the nongovernmental organization SOS Children's Village. The Indian Law Commission, for its part, cited the number of eighteen million destitute or orphaned children in 1994; see Law Commission of India, “One Hundred Fifty Third Report on Inter-Country Adoption,” 1994, http://lawcommissionofindia.nic.in/101-169/Report153.pdf.

117 In 2016, only 3.2 percent of India's 50,000 declared orphans were in fact up for adoption according to official figures released by the Central Adoption Resource Authority, accessed November 21, 2019, http://cara.nic.in/; see also Aparna Kalra, “Why Only 3.2% Of India's 50,000 Orphans Will Find Parents,” IndiaSpend, March 5, 2016, https://archive.indiaspend.com/cover-story/why-only-3-2-of-indias-50000-orphans-will-find-parents-34599.

118 For a detailed (although slightly polemical) approach before the enactment of the JJ Act 2015 and the subsequent Adoption Regulations 2017, see Dohle, Arun, “Inside Story of an Adoption Scandal,” Cumberland Law Review 39, no. 1 (2008): 131–85Google Scholar.

119 Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India (2017) 7 SCC 578 at 609.

120 See Sarkar, Golapchandra, The Tagore Law Lectures, 1888, the Hindu Law of Adoption, 2nd ed. (Calcutta: B. Cambray & Co, 1916)Google Scholar.

121 Lakshmi Kant Pandey v. Union of India AIR (1984) SC 469.

122 See above note 20.

123 See Law Commission of India, “One Hundred Fifty Third Report on Inter-Country Adoption.”

124 This following India's accession to the Hague Convention of May 29, 1993, on Protection of Children and Co-operation in Respect of Intercountry Adoption, signed January 9, 2003, entering into force October 1, 2003, https://assets.hcch.net/docs/77e12f23-d3dc-4851-8f0b-050f71a16947.pdf. By comparison, the Juvenile and Justice Act of 1986 catered only to “neglected” or “delinquent juveniles.” The amendment of 2006 for the first time defined adoption as “the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents” (Section 2(aa)).

125 JJ Act 2015, Chapter VIII (Sections 56–73).

126 The JJ Act 2015 expressly allows adoption applications to be made according to the Hindu Adoption and Maintenance Act 1956, which remains in force (see Section 56(3)).

127 Shabnam Hashmi v. Union of India (2014) 4 SCC 1.

128 Mohd. Allahdad v. Mohd. Ismail (1888) ILR 10 All. 289.

129 See Section 3 of the Shariat Act.

130 For an example, see Moulvi Mohammad v. Mohaboob Begum AIR (1984) Mad. 7.

131 Mst. Bivi v. Syed Ali (1997) 1 RLR 757.

132 Mohammad Akbar Bhat v. Mohammad Akhoon AIR (1972) J&K 105, at 111. It is uncertain after the enactment of the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act 2007 if the custom of pisar parvardah will continue to be recognized, despite adoption not being listed as a subject matter under the Act. For a detailed presentation of the procedure of adoption in Jammu and Kashmir, see Hussain, Imtiyaz, Muslim Law and Custom (Srinagar: Srinagar Law Journal Publication, 1989), 277–87Google Scholar.

133 Kehar Singh v. Dewan Singh AIR (1966) SC 1555.

134 Kehar Singh v. Dewan Singh AIR (1966) SC 1555.

135 Such as the Hindu Adoption and Maintenance Act 1956.

136 See, for example, Samad, M. A., “Concept of Negation of Adoption in Islamic Law It's Causes and Justifications,” Supreme Court Journal 4 (2008): 6–13Google Scholar.

137 Shabnam Hashmi v. Union of India (2014) 4 SCC 1, at 8.

138 Section 63 of the JJ Act 2015.

139 Section 21 of the Special Marriage Act 1954, which regulates succession between spouses.

140 Article 21 of the Constitution of India.

141 See above, note 30.

142 For a recent example, see Shaykh Jamir Saifoddin v. The Chief Officer, The Municipal Court, Jalna, Taluka & District Jalna (2015) 147 FLR 1005.