ISLAMIC law is supposed to be dynamic to retain its relevance to the needs of changing circumstances. In this regard, ijtehad (independent reasoning) assumes primary significance, absent which traditional views hold sway leading to inertia.
A significant issue which has not been able to attract the attention of scholars in Pakistan is the law regarding the status of an adopted child. In Pakistan, there is no law to regulate adoption and its legal consequences. According to the traditional Islamic legal position, adoption as practised in the Western world is forbidden in Islam, though the concept of kafalah is present. Further, the adopted child has no legal right of inheritance.
Some argue that the Guardianship and Wards Act 1890 is sufficient, but this is misleading. ‘Guardianship’ cannot be equivalent to ‘adoption’ as the obligations of guardians come to an end as soon as the ward reaches the age of majority. Also, the guardianship does not entail inheritance rights for the adoptee.
Many Muslim countries have recognised legal adoption.
To recognise adoption as an institution is advantageous in many ways. One, it benefits the abandoned children in society, with the provision of a stable psychological environment for them by the adoptive family. Many Muslim countries including Tunisia, Indonesia, and Turkey have recognised legal adoption. It was a worrying sign that after the ‘revolution’ in Tunisia, which set off the Arab Spring, Ennahda, the leading local Islamist party, dug up a long-settled issue in Tunisian society and denounced adoption as un-Islamic. However, Ennahda has recently lost parliamentary elections in the country paving the way for a secular party to lead the government.
Another benefit of legal adoption is that it will advance the respect for the law as presently, in practice, many people forge documents to claim an adopted child as a biological child. Abandoned children in the care of charity organisations face a lot of issues for their registration without the identification of their biological father.
In 2011, then president Asif Zardari made an offer to become adoptive father of thousands of abandoned children in Pakistan to make their registration by Nadra easier. But he later withdrew his offer because of opposition from the radical right.
Third, it will facilitate the procedure of inter-country adoption of Pakistani children.
To address the criticism of sceptics, it is necessary to understand the rationale behind the rules of Islamic law. In pre-Islamic society, adoption was undertaken primarily to secure a legal heir to property, or to usurp the property of orphans. Therefore, Islam provided that the property of the adoptee should not be merged with that of the adoptive family, in order to protect the best interests of orphans.
On the basis of the principle of reciprocity, which is one of the guiding principles of Islamic law of inheritance, adopted children do not inherit other than from their biological parents. And, therefore, Islam also ensured that the adopted child should be named only after his biological family and that their identity should not be erased.
These concerns are legitimate and must be taken into account while framing legislation. For instance, the concern of lineage can be dealt with by following the practice of open adoption, in which the information regarding the biological family of adopted children is not withheld.
Regarding the inheritance right, Turkey and Tunisia recognise full inheritance rights of the adopted child. But following the Indonesian approach will be a logical course of action. In Indonesia, a project was launched in pursuance of a joint decree issued by the Supreme Court and the minister for religion in 1985, which culminated in a Code of Islamic Law. The project of compilation of Islamic law aimed to provide the judges with a definitive statement of law on the subjects within the purview of Islamic courts.
Article 209 of the Compilation Code provides for obligatory bequest (wasiya wajiba) in favour of the adopted child, if the latter has not been mentioned in the will by the adoptive parents.
This is not an original solution, as the concept of mandatory bequest has also been earlier applied in Egypt since 1946 to give share to orphaned grandchildren.
Pakistan has gone a step ahead in this context and allows children of a predeceased heir to inherit per stirpes (as a group) the full share of their father under Section Four of the Muslim Family Laws Ordinance 1961.
Islamic rules of inheritance, in their traditional form, reflect a position when the pre-Islamic tribal social set-up was giving way to a system in which the family was recognised as the basic unit of society. But in today’s age, the support system of the ‘extended’ family is becoming rare and hence requires a review of the rules. Such review can be undertaken by parliament, which can perform the exercise of ijtehad in modern times.
The writer works in the Civil Service of Pakistan.
Published in Dawn, November 21th, 2014