Adoption Law in Pakistan

Adoption Law in Pakistan explained in light of Recent Case Law- 2024 YLR 1073 (Writ Petition)

There is no specific law regarding the adoption of a child in Pakistan, simply a verbal consent or an adoptions deed is sufficient. Reason being that In Pakistan, adoption is influenced by Islamic teachings, which focus on keeping family lineage intact. This means that the usual Western idea of adoption, where adoptive parents legally replace a child’s biological parents, doesn’t apply here. Instead, Pakistan uses a guardianship approach, where children can be cared for by guardians without changing their family background. This article will be explaining the concept of Adoption, Custody and Guardianship in Pakistan, in light of 2024 YLR 1073 [Lahore (Multan Bench)] where Justice Sadiq Mahmud Khurram very meticulously explained these concepts.

Brief facts of the case were that the minor namely Muhammad Ans was put up for adoption and he was adopted by Rasheed Ahmad (respondent No.3) and started to live with him. During the course of events, the instant petition was filed by the petitioner namely Mst. Arzu who claimed herself to be the biological mother of Muhammad Ans and sought his custody. In order to resolve the issue, the court explained following concepts related to Adoption, Custody and Guardianship.

Religious Context of Adoption in Islam

The judgement starts with explaining that Pakistan is an Islamic State and that’s why Islamic teachings, significantly influence Pakistan's legal framework, which discourage the formal adoption of children. Instead, Islam encourage the concept of Kifala (guardianship),

What is Kifala?

Kifalah means caring for a child without legally altering their lineage or biological identity. Islam encourages kifalah, rather than the institution of adoption, where a child:

• maintains his or her original identity;
• is known by the name of his or her biological father;
• is na-mahram to the family taking care of him or her;
• does not get a share in the property of the carer, by default, by virtue of inheritance, as per Sharia’h law; and
• does not have any legal rights upon his or her carers and simultaneously does not owe any duty to them and vice versa.

The judgement mentions that this concept stems from key Islamic teachings. The Holy Prophet Muhammad (PBUH) himself had an adopted son, Hazrat Zaid Bin Haris (R.T.A). However, even in that case, Hazrat Zaid was never regarded as the Prophet’s biological son instead he retained his lineage.

Legal Status

The judgment mentions that the child should be attributed to the natural parents, and not to the father or mother who has adopted him and marriage of adopted children with natural children of adoptive parents is not prohibited unless they relate to each other in a prohibited degree.

Judgement explicitly mentions that, adoption does not create a new legal relationship which did not exist before adoption. Furthermore, according to the NADRA Registration procedure, the parentage of the adopted child with known parentage must be entered as that of natural/biological parents, whereas parentage of the children with unknown parentage can be entered with some fictitious names to avoid social stigmas. However, there must be evidence provided by the adoptive parents that the child is with unknown parentage to avoid any confusion or controversy over the rights or duties of the adopted child as a biological child

Legal Mechanism for Adoption: Guardians and Wards Act, 1890

Since Pakistan does not recognize traditional adoption under secular law, the Guardians and Wards Act of 1890 acts as the principal legal tool for caring for a child in need:

• Guardianship Instead of Adoption: Rather than adoption, where the child becomes a legal heir, guardianship allows a person or couple to care for a child without altering the child’s legal lineage. The adoptive parents are recognized as guardians rather than as parents.
• Court Proceedings: Prospective adoptive parents must apply to the court to be named as guardians. In cases where the child’s biological parents are known, they must be made respondents in the case and typically give consent for the guardianship.
• Custody Arrangements: The court grants custody under guardianship but ensures that the child’s biological identity is preserved if the lineage is known. The law provides a mechanism to care for the child while respecting Islamic principles regarding lineage and identity.

Inheritance and Legal Rights of Adopted Children

An essential aspect of adoption under Pakistani law is that it does not alter inheritance rights. The Succession Act, 1925, which governs inheritance for both movable and immovable property, does not recognize adopted children as heirs to the adoptive parents:

• No Legal Relationship for Inheritance: Since adoption does not create a biological or blood relationship, an adopted child does not inherit from the adoptive parents under Pakistani inheritance law. This aligns with the Islamic prohibition against altering a child’s lineage.
• Explicit Will Requirement: If adoptive parents wish to pass on property to an adopted child, they must specify this in a will, as the child will not automatically inherit like biological offspring.
• Marriage Implications: Adoption does not restrict marriage between an adopted child and a biological child of the adoptive family. Islamic law only prohibits marriage within certain degrees of biological kinship. Since adoption does not create a blood relationship, the same restrictions do not apply between an adopted child and biological children of the adoptive family.

Guardianship vs. Custody

The judgement also explains the concept of Guardianship and Custody followed in Pakistan. In Islamic law and under the Guardians and Wards Act, 1890 in Pakistan, guardianship and custody are different. Guardianship involves the responsibility over a child or their property, while custody refers to the actual physical care of the child. A guardian, defined under section 4(2) of the Guardians and Wards Act, 1890, can be someone with legal authority over the child’s welfare and property, but this person may not necessarily have physical custody of the child.

In Islamic law, a mother is often given the right to hizanat (custody) of her child, as it is generally seen as best for the child’s welfare to stay with the mother, and while the mother may have custody, the father is often regarded as the natural guardian and has the responsibility of maintaining the child financially. The father has a right to custody if the court determines that the child’s welfare would be better served with him. According to Section 19 of the GWA 1890, if the father of the minor is alive, no other guardian can be appointed, unless, in the opinion of the court, the father is not fit for appointment.

Note: Guardians and Wards Act 1890 (Article 4(2)) defines the term ‘guardian’ as a person having the care of the person of a minor or of his or her property or of both his or her person and property. However, no definition is provided for the word ‘custody’ or ‘custodian’.

Decision

The court decided to return custody to the biological mother, Mst. Arzu, over the adoptive guardian, Rasheed Ahmad recording following reasons:

Biological Parent's Priority: The ruling indicates that, under Islamic and Pakistani law, biological parents retain a higher right to the child’s custody. Since adoption does not sever the biological link or confer inheritance rights, the biological mother’s claim to custody outweighed the adoptive guardian’s role.

Legal Emphasis on Biological Connection: In the absence of formal adoption rights that create kinship or inheritance rights, the court had no legal basis to deny custody to the biological mother, emphasizing the precedence of biological ties over guardianship in Pakistan.