CHILD ADOPTION IN PAKISTAN; LEGAL AND RELIGIOUS ASPECTS

Adoption is the act of creating a permanent legal parent-child relationship between adoptive parents and a minor. In Pakistan, child adoption is complicated process that intertwines between legal procedures and adherence to religious guidelines. There are two primary methods of adopting a child in Pakistan, firstly to adopt the child through Child Protection Bureau, which includes registered orphanages and secondly, to adopt the child with consent of biological parents through the Guardian Court of Pakistan. There is a slight procedural difference between the two modes of adoption however, adoptive parents in both conditions ultimately have to approach the Guardian Court seeking permission to fly abroad with minor. Islam permits adoption but it emphasizes on preserving the child’s lineage and prohibits changing their family name. This ensures a balance between providing care for vulnerable children and maintaining ethical and moral boundaries.

This article explores the following key aspects;

1.     Legal procedure to adopt a child in Pakistan

a) Guardianship petition coupled with permission to travel abroad

b) Court’s Assessment of minor’s welfare

c) Judgment and Decree

d) Registration with relevant authority

2.     Islamic perspective on child adoption

        a) Guidance from the Sunnah

        b) Mahram Status & Conditions

3.     Relationship of adopted children in Islam

a) Relationship with Biological Parents

b) Relationship with Adopted Parents

4.     Adopted Minor Child’s Right To Seek Maintenance From Adoptive Father

5.     Right of Inheritance.

1)     LEGAL PROCEDURE TO ADOPT A CHILD IN PAKISTAN; There is no specific statute for child adoption in Pakistan however, parents wishing to legally adopt a child and later take them abroad must adhere to the following procedure;

a.      Guardianship Petition: Institute a suit before the Learned Guardian Judge in the minor’s jurisdiction, seeking guardianship under the Guardian and Ward Act (1890). If the adoptive and biological/real parents have developed a consensus to adopt minor child, then they can execute an adoption deed prior to institution of suit.

Furthermore, if the adoptive parents intends to take the minor children abroad, in that case, the suit will be accompanied with an application seeking permission for relocation/to take minor children abroad.

Pursuant to the institution of suit, notices will be issued, thereafter parties will submit their adoption deed and record their consent/statement.

b.      Court’s Assessment of Minor’s Welfare: The court evaluates the child’s welfare, focusing on the improved opportunities which the adoptive parents can provide.

c.      Judgment and Decree: If the Learned Guardian Judge is satisfied, that adoptive parents can provide a better future to minor, the court will permit the relocation of minor child and appoint the adoptive parents as legal guardians by passing a judgment and decree. (Court decree passed by Learned Family Judge Islamabad is attached as reference).

d.      Registration with relevant authority like NADRA: After obtaining decree from Court, Muslim Pakistani adoptive parents (Subject to their nationality ) may register the child in their family tree while preserving the child’s original lineage, as per Islamic injunctions/guidelines.

Case Law; The question came before the Honorable Islamabad High Court in P L D 2011 Islamabad 6 titled as Miss NANCY RUTH BANEY vs DISTRICT JUDGE, ISLAMABAD and another where petitioner was appointed guardian of minor adopted child namely Amrina Masih (Christian by religion). Petitioner sought permission to take minor child to abroad/USA. The Honorable Court held that, child after going through all the process of guardianship should be permitted to accompany her lawful guardian, especially when the parents had also no objection to the removal of minor to a foreign country in connection with adoption. Muslim laws were different but the minor was a Christian and her parents had given the permission. The Honorable Islamabad High Court permitted the petitioner to take the minor to United States of America for the purpose of immigration and adoption consequently the petition was allowed in circumstances

2)     ISLAMIC PERSPECTIVE ON CHILD ADOPTION

Islam permits the adoption of children but emphasizes on the preservation of their lineage and identity. This principle stems from Islam's prioritization of familial ties, parentage, and lineage. Consequently, changing the adopted child’s family name to match that of the adoptive parents is strictly prohibited. Maintaining the child’s original identity reflects the fairness and justice upheld by Islamic teachings.

A.    Guidance from the Sunnah

The Sunnah of the Prophet Muhammad (PBUH) provides clear guidance on the practice of adoption. A notable example is the relationship between the Prophet (PBUH) and Zayd bin Haritha. Zayd was initially a slave given to the Prophet Muhammad (PBUH) by Khadijah (RA). The Prophet (PBUH) freed Zayd and their bond grew to that of a father and son. Zayd even became known as Zayd bin Muhammad.

Zayd was one of the first persons to have accepted Islam. When his father and uncles came to know about his whereabouts, they came to Makkah and told Prophet Muhammad (P.B.U.H.) that Zayd had been captured by some thieves and sold into slavery. The Prophet set him free, but Zayd refused to leave Prophet Muhammad (P.B.U.H.) and go home with his father. Haritha the father of Zayd, became very angry and openly declared that from now on "Zayd is not my son". The Prophet immediately responded by adopting Zayd. Zayd came to be known as Zayd Bin Muhammad.

However, after the revelation of Surah Al-Ahzab (33:4), Allah commanded that adopted children should retain their biological family names:

"And Allah did not make your adopted children your sons. That is only your words coming out from your mouths. And Allah says the truth and He guides you to the right path. Call them by [the names of] their [real] fathers; it is more just in the sight of Allah."

This verse underlines the importance of maintaining the child’s original lineage. Zayd subsequently reverted to being known as Zayd bin Haritha. Despite this, the relationship between the Prophet Muhammad (PBUH) and Zayd remained as close as that of a father and son, demonstrating that love and care for adopted children can thrive without altering their lineage.

B.    Mahram Status & Conditions

If the child is breastfed/nursed by adopted mother when he was under two years old or breastfed for a full day or at least 15 consecutive times, then adopted child has become a mahram to the adoptive family. If not, the child remains non-mahram, necessitating adherence to modesty rules, including hijab.

3)     RELATIONSHIP OF ADOPTED CHILDREN IN ISLAM

a)     Relationship with Biological Parents; Adoption does not sever as the bond between an adopted child and their biological parents. The child’s ties to their real parents and siblings remain intact. This means:

·        The child remains a mahram to their biological family.

·        The child cannot marry their biological siblings.

·        They are entitled to inheritance rights from their biological parents.

·        Hijab requirements are not necessary between the child and their biological family.

b)    Relationship with Adoptive Parents; Adoption does not automatically make the child a mahram to the adoptive family. However, exceptions arise if the child meets the breastfeeding conditions mentioned earlier, creating a foster (rizai) relationship. In such cases:

·        The child becomes a mahram to the adoptive family.

·        Hijab is no longer required between the child and the adoptive family.

·        The child cannot marry the biological children of the adoptive parents.

Even in cases of a foster (rizai) relationship, the adopted child’s inheritance rights remain tied to their biological parents, as outlined in the Qur'an (33:4). In case of non-foster (razai) relationship, the child will remain as Non-Mehram

The most recent reported judgment on the relationship of biological parents is 2024 YLR Lahore (Multan) Page 1073, wherein the Court emphasized that biological parentage holds precedence over adoptive relationships under Muslim law. The judgment clarified that while adoption is a noble act, it does not alter the legal status of a child or create a kindred relationship, reaffirming the rights of natural parents, particularly when the welfare of the child is at stake.

In the said case, Petitioner (biological mother) sought custody of her child, who was adopted by another individual. Record showed that the minor was put up for adoption. However, maternity of the minor was determined from the Forensic Science Agency. Adoption of a child with the purpose of providing shelter to him was virtuous and carried much reward for welfare of the child but adoption in Islam had no legal consequence. Child should be attributed to the natural parents, and not to the father or mother who had adopted him. Adoption did not create a new legal relationship which did not exist before adoption. Adoption under 'Muslim Law' did not create any kindred relationship between the adopted child and adoptive parent, Therefore, The Court, prioritizing the minor's welfare, ordered interim custody to the biological mother under Article 199 of the Constitution, pending a final decision by the Guardian Court.

4)     ADOPTED MINOR CHILD’S RIGHT TO SEEK MAINTENANCE FROM ADOPTIVE FATHER

An adoptive father is legally obligated to provide maintenance to the adopted child, irrespective of mehramiyat or the presence of a foster mother.

Case Law: In PLD 2015 Lahore 336 titled as Mariam Bibi through Abida Parveen vs. Naseer Ahmad and Others, a minor girl, who was adopted at the age of approximately 1.5 months, sought maintenance from her adoptive father through the family court. The adoptive parents had raised and publicly acknowledged the child as their own daughter. The Court held that the actions of the adoptive father established a relationship of trust and constructive guardianship, creating fiduciary obligations, including the duty to maintain the child. Consequently, the adoptive father was directed to pay maintenance to the adopted minor daughter.

5)     RIGHT OF INHERITANCE

Adopted children (under kafala) do not automatically inherit from their adoptive parents under Islamic inheritance laws. This is because Islamic inheritance rules are strictly prescribed in the Qur'an, primarily in Surah An-Nisa (Chapter 4), which designates specific shares to biological relatives. However, an adopted Child is eligible for inheritance from the real/biological parents.

The Holy Qur'an explicitly states that adoption does not create biological or lineage ties. Surah Al-Ahzab (33:4-5) clarifies that adopted children should not be considered as the biological children of the adoptive parents:

"Call them by [the names of] their fathers; it is more just in the sight of Allah."

While adopted children are not legal heirs under Islamic inheritance law, their adoptive parents can allocate up to one-third of their estate to an adopted child through a will.

To sum up, I believe child adoption in Pakistan reflects a complex interplay of legal, cultural, and religious dimensions. While Islamic principles safeguard the child’s lineage and identity, the legal system ensures the child’s welfare and provides mechanisms for their care. Striking a balance between tradition and contemporary needs, the framework offers opportunities to provide love and support to orphaned and vulnerable children while respecting ethical boundaries. However, legal reforms and societal awareness can further strengthen the adoption process, ensuring the rights of adopted children and maintaining alignment with Islamic values.

WAHEED UR REHMAN QURESHI

Advocate High Court

LLM (International Business Law) UK

+92 336 – 5001100

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