Adoption by Muslims is not recognized under Muslim Personal Law, and the registration of an adoption deed is not a matter of right, lacking legal sanctity.

ORDER

This Writ Petition has been filed for a direction, directing the fourth respondent to register the adoption deed, dated 09.07.2018 presented by the petitioners.

Background of the case:

2.The petitioners 1 and 2 are the husband and wife and they gave birth to three female children. The fourth petitioner is the sister of the second petitioner and the third petitioner is the husband of the fourth petitioner. Therefore, the petitioners 1 and 2 decided to give their third female child by adoption to the petitioners 3 and 4. They had also agreed and accepted the adoption of the petitioners 1 and 2's, third daughter, by name Safreen Fathima in the presence of their relatives. Accordingly, they made an adoption deed, dated 09.07.2018 and presented for registration for all practical purposes of future of the adopted child. However, the fourth respondent refused to register the adoption deed on the ground that there is no provision available for registration of adoption deed in online registration in the case of Muslims.

Petitioners' Submission:

3.The learned counsel appearing for the petitioners would submit that the Muslim Personal Law has not recognized the adoption. However, it is no bar for adoption by Muslims in view of Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended in 2006) (in short hereinafter referred to as 'the J.J Act, 2000') which permits the adoption by any person irrespective of caste, religion, creed etc. The Mohammedans are governed by Personal Law, which is recognized by an enactment called 'The Muslim Personal Law (Shariat) Application Act, 1937 ' (in short hereinafter referred to as 'the Act, 1937'). He relied upon Sections 2 and 3 of the Act, 1937. Therefore, Section 2 of the Act, 1937 shall be the Personal Law in which the subjects are covered. Section 3 of the Act, 1937 deals with the declaration by a person in respect of adoption, Wills and legacies. Insofar adoption is concerned, the Muslim Personal Law is not applicable. Therefore, the adoption is permissible unless and otherwise, the person who wants to adopt has declared himself to obtain the benefit of of the Act, 1937. Therefore, there is no bar for adoption by Muslims.

4.The learned counsel appearing for the petitioners further submitted that neither the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short hereinafter referred to as 'the J.J Act, 2015) nor the Rules or the Regulation prohibits, curtails or nullifies the practice of adoption by custom or otherwise prevailing before the enactment of the J.J Act, 2015. The adoption by following any custom or practice is not overruled or nullified by any of the provisions of the J.J Act, 2015 and its Regulation. There is no overriding or repealing of adoption also under the J.J Act, 2015. The adoption deed is not a document to be registered compulsorily and it is an optional one. However, the fourth respondent informed that in view of the introduction of online registration, the document cannot be registered manually and the website does not provide the column for adoption for Mohammedan. Therefore, the provision under Sections 71 to 73 of the Registration Act, 1908 will not arise for refusal of documents. Further, he specifically contended that the adoption by custom under Mohammedan Law is valid. Therefore, the registering authority cannot refuse to register the deed of adoption.

5.In support of his contention, the learned counsel appearing for the petitioners relied upon the following Judgments:

(i) In the Judgment in Ayubsha Amirsha Jamadar and others Vs. Babalal Mahabut Danawade and others reported in AIR 1938 Bombay 111 , the Bombay High Court has held as follows:

'(a) Mohammedan Law – Manager of graveyard – female.

Though the ground in which human remains are interred is regarded as sacred, the duties of the manager of a graveyard are secular and can be performed by a female in person or by proxy.

(b) Mohammedan Law - Manager of graveyard