Shabnam Hashmi v. Union of India & Ors 2014
Dixita Baishya
University Law College , Gauhati University
This Case Commentary is written by Dixita Baishya, a Third Year Law Student of University Law College , Gauhati University
Case Name: Shabnam Hashmi Vs Union Of India & Ors 2014
Equivalent Citation: AIR 2014 Sc 1281
Date Of Judgment: 19/02/2014
Court: Supreme Court Of India
Petitioner: Shabnam Hashmi
Respondent: Union Of India
Bench: P. Sathasivam, Ranjan Gogoi, Shiva Kirti Singh
Introduction
Shabnam Hashmi was a social activist and advocate for human rights. She began her advocacy for adult literacy in 1981. She adopted a girl, but instead of being dubbed her parent, she was referred to as her guardian. This was because, according to Islamic law, a kid and a parent must have a biological relationship to be considered a parent. So she filed a writ petition, claiming that under Islamic law, she was not permitted to adopt a kid, so she became the guardian of the child she adopted. She did, however, submit a writ petition on behalf of every person who adopted a child but was not permitted to refer to them as parents. She also submitted a petition to prevail. Secular laws take precedence over personal laws, allowing childless couples to readily adopt children and provide sufficient care, and emotional and mental support. Before this case, adoption was solely valid within the Hindu community; however, the Hindu Adoption and Maintenance Act of 1956 enabled people to adopt a child in HINDUS. This Act was prevalent in the Hindu community but not in others such as Muslims, Christians, and Sikhs, therefore these communities began to adopt the Guardianship and Wards Act, which applies to couples who adopt a child and become guardians of that adopted kid. This was done primarily to encourage individuals to adopt a kid and provide homes for many homeless youngsters. According to Section 2(2) of the Juvenile Justice (care and Protection) Act of 2015, "adoption" refers to the process by which a kid is adopted by a childless couple from their biological parents or orphanage. They became the adopted child's parents, with all of the same benefits and rights as the biological parents.
Facts
The petitioner in this case, Shabnam Hashmi, is an Indian social activist and human rights advocate. She is a Muslim woman who adopted a young girl when she was quite small. The legal argument provided was that the Juvenile Justice Act of 2000 is a secular statute that allows anyone, regardless of religious affiliation, to adopt a kid. It was also stressed that the court should direct the states and union territories controlled by the Juvenile Justice Act of 2000 to strictly follow Section 41 of the Act and the guidelines provided by CARA (Central Adoption Resource Authority). In addition, the court heard arguments that the right to adoption is a basic right.
The petitioner applied to the Supreme Court under Article 32 of the Indian Constitution, seeking recognition of the right to adopt and be adopted as a basic right under Part III of the Indian Constitution. As an alternative, the petitioner requested that the Court develop optional criteria to facilitate the adoption of children by persons regardless of religion, caste, creed, and so on. Furthermore, there was a call for the Union of India to pass an optional law focusing largely on the welfare of children, with religious considerations taking a back seat.
Issues raise
· In Shabnam Hashmi v. Union of India, the following issues were raised:
· Is the adoption of a child a fundamental right?
· What rules will prevail if Personal Law and Secular Law disagree?
· Do caste, creed, and religion influence the adoption process?
Laws involve-
Indian Constitution 1950
Article 44 of the Constitution :
Part IV of the Indian Constitution contains Article 44, which establishes the Directive Principles of State Policy. This Article requires the State to make every effort to create a Uniform Civil Code (UCC) for the country's citizens. The goal is to offer universal laws for personal concerns such as marriage, divorce, inheritance, and property for all residents, independent of religious views or locality. Finally, it seeks to integrate India's diverse personal law regime, which varies by faith community. This idea has long been the topic of controversy in India's socio-legal landscape, owing to the country's different religious and cultural backgrounds. In the present case, the court recognized the JJ Act of 2000 as a minor but significant step toward accomplishing the purpose expressed in Article 44 of the Constitution. While admitting that the article represents an idealistic objective, the court recognized that different groups continue to hold opposing views on adoption and personal legislation. However, the court also emphasized that this purpose has not yet been fully realized, emphasizing the necessity for judicial moderation on the matter. The Supreme Court took a similar stance in cases such as Lily Thomas vs. Union of India (2000) and John Vallamattom vs. Union of India (2003). The court suggested that the UCC can only be implemented through future generations' joint efforts to reconcile opposing faiths and ideas that are already prevalent in society. The court recognized the JJ Act as progress but stated that India is still far from attaining the constitutional aim of UCC due to continuing variations in personal laws.
Juvenile Justice Act .,2000
Section 44 of the Juvenile Justice Act
Section 41 of this Act establishes the adoption framework in India. It states that a child's primary care should come from their family, although adoption is one way to support orphaned, abandoned, or relinquished children. The courts oversee the adoption process, ensuring that officials conduct adequate investigations before approvals are granted, by government norms. To handle these cases, each district must have state-recognized specialized adoption agencies. The part also outlines adoption restrictions, such as a waiting period for relinquished children and the requirement of agreement from children who are old enough to understand the procedure. It broadens who can adopt, allowing single people, parents with children of the same gender as the adoptee, and childless couples to adopt.
Analysis
In the Shabnam Hashmi case, the Supreme Court did indeed offer substantial relief to the petitioner. However, there has been considerable criticism because it does not identify the right to adoption as a basic right under Article 21 of the Constitution. Recognizing this right would have improved access to justice, especially given that the JJ Act of 2000 may be inaccessible to individuals from many communities. In a 2011 report, the Global Muslim Women's Shura Council examined the Islamic adoption procedure and proposed reforms. This report emphasized that Islamic texts do not prohibit adoption, but rather impose ethical limits on it. This reform emphasizes compassion, honesty, and fairness.
This reform is comparable to the concept of open adoption, which maintains the child's biological ties. Such a model would not be anti-Islamic, because it would put the child's interests first. The court may have prioritized the child's best interests by considering alternative options and broadening the interpretation of Article 21. By investigating these options, the court could have produced a more inclusive and comprehensive framework in India for adoption.
Conclusion
In the case of Shabnam Hashmi case, the bench said that adoption is a basic right for all citizens, regardless of caste, creed, or religion. The Juvenile Justice (care and Protection) Act of 2000 made it possible to adopt a kid regardless of religion or caste. Even though the petitioner had not provided any serious proof in this matter, the court accepted the petitioner's plea and stated that the right to adopt a child is protected by Part III of the constitution, known as the Fundamental Right. Everyone has the same right to adopt a child, regardless of religion, caste, creed, gender, and so on. The benches additionally noted that Muslim personal laws do not accept adoption or forbid a childless couple from adopting nor does it stop a childless couple from adopting a child and providing for the child's emotional and material well-being. When a couple adopts a child, they are considered parents rather than guardians; under the Juvenile Justice Act of 2000, it is permissible to adopt even if personal laws do not explicitly mention adoptions; every couple has the right to be parents, and every child has the right to be adopted regardless of gender, religion, caste, or creed.
References
1. https://lawbhoomi.com/shabnam-hashmi-vs-union-of-india/
2. https://legalvidhiya.com/shabnam-hashmi-v-union-of-india-air-2014-sc-1281/
3. https://www.lawyersclubindia.com/judiciary/shabnam-hasmi-v-uoi-ors-2005-section-41-j-j-act-4789.asp
5. https://indiankanoon.org/doc/105818923/
6. https://blog.ipleaders.in/shabnam-hashmi-vs-union-of-india-ors-2014/