SC takes up issue of deserted children’s adoption

Updated April 18, 2014

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ISLAMABAD: The Supreme Court has enlisted the assistance of keen legal minds as it seeks to answer key questions about the rights and modalities of adoption for parentless or deserted children in Islam.

“The answers to these questions could have far-reaching consequences and it is necessary to seek assistance before an order is passed,” Chief Justice (CJ) Tassaduq Hussain Jillani observed on Thursday.

The court took up the matter nearly 27 months after the last hearing on August 22, 2011. The matter was first brought to the notice of former CJ Iftikhar Chaudhry by philanthropist and social worker Abdus Sattar Edhi. In a letter to the then-CJ, Edhi complained that the National Database and Registration Authority (Nadra) was not issuing ‘Form B’ to children whose parentage was unknown or those who had been abandoned by their parents and were now living in Edhi shelters.

The three-member bench appointed former Balochistan High Court judge Tariq Mehmood and Karachi-based legal expert Makhdoom Ali Khan, as amici curiae to assist the court in deciding this complex matter.

Under Section 9(1) of the Nadra Ordinance 2000, the authority is bound to register every citizen, residing in or outside Pakistan, who has attained 18 years of age, as well as registering the birth of every child no later than one month after their birth.

In 2011, Chief Justice of Supreme Appellate Court Gilgit-Baltistan Muhammad Nawaz Abbasi had asked four questions of public importance regarding the status of children without parents or legal guardians.

The questions were drafted in response to a Nadra application, calling the court’s attention to the trend of foreigners claiming guardianship of a large number of minors belonging to Gilgit-Baltistan.

In Pakistan, adoption is formalised only when a guardian court issues a decree or a guardianship certificate to an individual under the Guardian and Wards Act, 1890. Without a court decree, no-one can claim guardianship of any minor because the child must ultimately be registered with Nadra to obtain a computerised national identity card upon attaining 18 years of age.

The following questions were devised by the appellate court and are the subject of the court’s current deliberations.

— What is the concept of adoption in Islam and what are the rights of an adopted child and whether adoption of a Muslim child without the consent of his parents is permissible under the law.

— Whether a Muslim child can be adopted by a non-Muslim and guardian judge in special jurisdiction is authorised to grant guardianship certificate to a Muslim or non-Muslim to take the child out of its territorial jurisdiction.

— In case of parentless/deserted child, whether a Muslim state is not responsible for welfare of the child and permission is not required for adoption of such a child by any state authority.

— What are the aims and objectives of welfare organisations registered under the Volunteer Social Welfare Organisation Act 1961 and whether the custody of a child can be given by such an organisation to the Muslim or non-Muslim nationals or non-nationals.

In its order, the Supreme Appellate Court of Gilgit-Baltistan had also mentioned the advice it had sought from the Council of Islamic Ideology (CII), a constitutional body with an advisory position in matters relating to the Islamic nature of laws. After a meeting in 2011, the CII had recommended that the words ‘unclaimed’ or ‘abandoned’ should not be written on a CNIC, because this would stigmatise these child. Instead, the CII suggested, their CNICs should carry the names of their legally adopted parents or guardian.

On Thursday, the court ordered its staff to provide all relevant documents to the amicus curiae so that they would be prepared when the matter is next taken up in the last week of May.