By Nauman Asghar
May 26, 2015
According to various estimates, 1.5 million children live on the streets in Pakistan, owing to multifarious reasons. The study reports suggest that majority of them have been forced to live homeless lives after the experience violence in household, workplace and educational institutions. These homeless children can hope to live a better life if there are adequate laws on adoption in Pakistan.
Islamic law is supposed to be dynamic, so as to retain its relevance to the needs of changing circumstances. In this regard, Ijtihad (independent reasoning) assumes primary significance, absent when traditional views hold sway. For the exercise of Ijtihad, it is imperative to face issues head-on by initiating the process of wider debate by scholars. To sweep them under the carpet with an ostrich-like attitude will get us nowhere. Ijtihad provides a way to avoid the unfair outcomes due to classical interpretations, made in a different time and context.
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 traditional Islamic law, adoption as practiced in the western world is forbidden in Islam, though the concept of kafalah is present. Additionally, that 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.
To recognize 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 recognized legal adoption. It was a worrying sign that after the ‘revolution’ in Tunisia, which set off the Arab spring, the Islamist party there dug up a long-settled issue in Tunisian society and denounced the adoption as un-Islamic. However, the Islamist party, Ennahda, lost recently held parliamentary elections in the country paving way for a secular party to lead the government.
Another benefit of legal adoption is that it will advance the respect for law as presently many people forge documents to claim adopted children as a biological children. The abandoned children in the shelter of charity organizations like the Edhi Foundation face a lot of issues for their registration without the identification of their biological father. In 2011, then President of Pakistan, Asif Ali Zardari, made an offer to become the adoptive father of thousands of abandoned children in Pakistan to make their registration by NADRA easier. But later he withdrew his offer because of opposition from the radical right. Additionally, legal adoption will facilitate inter-country adoption of Pakistani children.
To address the criticism of skeptics it is necessary to understand the rationale behind the rules of Islamic Law. In pre-Islam 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 the 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 their identity should not be erased. These concerns are legitimate and must be taken into account while framing legislation.
Regarding the inheritance right, Turkey and Tunisia recognize 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 the original solution, as the concept of mandatory bequest has also been earlier applied in Egypt, since 1946, to give share to the orphaned grandchildren. Pakistan has gone a step ahead in this context and allows children of predeceased heir to inherit per stripes (as a group) the full share of their father under section 4 of 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 family was recognized as basic unit of society. But, in today’s time, the support system by ‘extended’ family is becoming rare and hence requires review of the rules stipulated in a language that is not mandatory. Such review can be undertaken by parliament that can perform the exercise of Ijtihad in modern times.
Source: http://nation.com.pk/columns/26-May-2015/need-for-ijtihad
11:17 PM
Moderate Islamist here
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