Adoption of children under civil law regardless of religion, caste, class or creed

This case originates from the Petitioner’s grievance that she only had guardianship rights over the young girl under her care who she brought from an adoption home. As the Petitioner is a Muslim, she is governed by Muslim Shariat Law which does not legally recognise adoption and does not recognise an adopted child on par with a biological child. Consequently, this writ petition was filed before the Supreme Court to recognise adoption as a facet of the fundamental right to life and liberty and in the alternative make civil adoption available to everybody without regard to religious restrictions. The Court held that adoption under the civil legislation, Juvenile Justice Act 200 and 2006 is an option available to people irrespective of their personal beliefs and faith. Thus, ‘an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself’. The Court, however, denied the prayer to pass a declaration that the right of a child to be adopted and that of the prospective parents to adopt are fundamental rights under Article 21 of the Constitution. It also refused the intervenor’s request to not recognise adoption of a Muslim child under the civil law and instead abide by the Kafala system, also recognized under Article 20(3) of the CRC. The Court was of the view that the civil legislation is of an enabling nature and prospective parents are at liberty to access the adoption process under the same or be governed by the dictates of their personal law.