India being a secular country, which according to
the constitution aspires and aims at giving the right to Equality, Life and
Liberty to each one of it’s citizens at some juncture fails to do so owing to
the discrepancies between the Personal Law and Ordinary Regulatory Law.
Despite, numerous efforts by the Judiciary and
Legislature to implement and establish a Uniform Civil Code, it has been a well
established scenario that in order to maintain law and order of the country
which is the core objective of Judiciary, the Judiciary and Legislature succumb
to the protests made by the Religious and Communal Sects.
The case of Shabnam Hashmi vs. Union of India and
Ors. (FN) is a remarkable judgement which brought about the question of
discrepancy with respect to laws governing adoption and Personal Law.
In the following case, a writ petition was filed by
the petitioner, Mrs. Shabnam Hashmi when she was not allowed to adopt a non-Muslim
girl child because a Muslim can only act as a guardian by virtue of the Guardians
and Wards Act, 1980 which would never give the child the right to inherit the
property or the status similar to the child who is biologically born. This is
because, under Islamic Law by which the petitioner was governed does the not
allow adoption and does not consider treating the adopted child at par with the
This, prohibition with regards to adoption under the
Islamic Law is supported by a theory which suggests that the act of Guardianship
which is known as the ‘khafala’ system which provides for the well fare of the
child by means of financial assistance but as soon as the child attains the age
of 21 years the established Guardian-Ward relation extinguishes.
Whereas, for the Hindus who are governed by the
Hindu Adoption and Maintenance Act, 1950 have a right to adopt the child and
the child thereafter get the right to inherit the property and is considered
and treated in the same way as a biological child.
This ultimately results in discrimination between
the citizens of the country to whom the Constitution guarantees Right to
Equality, Life and Liberty, since a Hindu parent gets the legal right to act as
an adoptive parent whereas the Muslim Parent doesn’t get the same rights with
respect to Adoption.
Thus, the Supreme Court in the following case
identified and addressed two Issues broadly:-