Personal laws can’t supersede secular laws of land, says order
In a landmark judgement paving the way for adoption of a child by persons hailing from Muslim community, the Supreme Court on Wednesday ruled that restrictions placed by Personal laws will not come in the way of any citizen’s right to adopt or to be adopted.
The decision pitched for a Uniform Civil Code in the country as the court held that religious beliefs cannot dominate law of the land, and Personal laws will hold sway over only those individuals who choose to submit to it till the vision of a uniform civil code is achieved.
The judgement came on a PIl filed by social activist Shabnam Hashmi in 2005 questioning the Muslim personal laws which did not recognise adoption. Pointing out that the Hindu Adoption and Maintenance Act 1956 gave specific rights of adoption to Hindus, the Bench noted that for other communities there exists a secular law under the Juvenile Justice Act 2000, later amended in 2006, allowing adoption. The question remained whether Personal laws could come in the way of a non-Hindu seeking adoption under the JJ Act.
The Bench of Chief Justice P Sathasivam, Justices Ranjan Gogoi and SK Singh held, “Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of the enabling statute.”
The Muslim Personal law Board had objected to passing any such order as Islam did not recognise an adopted child as equal to a biological child.
Justice Gogoi, writing the judgement for the Bench, observed, “The JJ Act 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption. The Act is a small step in reaching the goal (of Uniform Civil Code) enshrined by Article 44 of the Constitution.”
The court went on to add that at best the personal laws can apply to those individuals who agreed to be subjected under it. “At the same time, Section 41 of the JJ Act applied to any citizen to approach a civil court for taking a child in adoption,” the judgement said.
Resolving the conflict, the court held, “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 until such time that the vision of a Uniform Civil Code is achieved. But for this to happen, there must be collective decision of the generations to sink conflicting faiths and beliefs existing till today.”
However, the Bench stopped short of declaring right to adopt as a fundamental right. In our view, the Bench said, “Elevation of the right to adopt or to be adopted to the status of Fundamental Right will have to await a dissipation of conflicting thought processes in this sphere of practices and beliefs prevailing in the country.”