24 Pages Posted: 17 Jul 2008 Last revised: 10 Sep 2008
Date Written: July 17, 2008
A bill on uniform civil code was introduced in the Indian parliament. But there was hue and cry from Muslim Community and this bill never became an act. The grounds on which objection were raised was that Islam does not recognize adoption, so it would be violative of article 25 of the constitution which provides right to practice and profess religion. However art. 25 protect only such practices which are essential and integral part of any religion. My research question were:
- Does law governing adoption forms integral part of Muslim religion?
- Does Islam recognizes adoption?
- Can Article 44, over-ride article 25 of the constitution?
- If a uniform law comes into being, how should be it like?
Article 25 of the constitution provides that right to religious freedom. Supreme Court has made it clear that State can not interfere in such matters which are essential and integral part of any religion. However the Supreme Court while interpreting what can form an essential part of the religion has usually followed an egalitarian and restricted approach. The custom of adoption was prevalent in pre-Islamic Arabia. Even Mohammad the prophet himself took Zaid, the son of Haris in adoption.
Article 44 provides for uniform civil code and article 38(2), states, The State shall . . . endeavor to eliminate inequalities in status . . . . so a uniform law will eliminate the unequal status of a child adopted by a Hindu and a child adopted by a non-Hindu.
Laws and regulation of social relationship in the matter of marriage, divorce, succession, adoption etc are undoubtedly secular in character and therefore cannot be brought within the guarantee enshrined under article 25 and 26 of the constitution.
Keywords: uniform civil code, adoption law, religious freedom
JEL Classification: zoo
Suggested Citation: Suggested Citation
Sharma, Sharda Girijesh, Uniform Civil Code and Adoption Laws in India (July 17, 2008). Islamic Law and Law of the Muslim World Paper No. 08-41. Available at SSRN: https://ssrn.com/abstract=1162110 or http://dx.doi.org/10.2139/ssrn.1162110