Assignment No.

Whether Adopted Son is Eligible to get shares in Parents

Property?

Subject: Legal Drafting II

Submitted To: Mam Hina Qayyum

Submitted By: Mahnoor Paracha

2016-LLB-2016

FATIMA JINNAH WOMEN UNIVERSITY

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 Table of Contents

Introduction……………………………………………………………………..3

Adoption of a Child in Islamic Law……………………………………………4

Status of Adopted Child Under Pakistan Law………………………………..6

Case Laws………………………………………………………………………..7

Conclusion……………………………………………………………….............8

Draft of Will Deed…………………………………………………………...…..9

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 Introduction

According to the Shari'ah (Islamic law), there is no legal adoption. It is prohibited for a

person to legally adopt a son or a daughter of whom he is not the biological father. If a

person adopts a son or daughter, the Shari'ah will not confer on the adopted person the status

or rights of a biological son or daughter. 1 According to the Quran, one cannot become a

person's real son merely by virtue of a declaration; Allah Says (what means): "...And He

[i.e., Allah] has not made your claimed [i.e., adopted] sons your [true] sons. That is [merely]

your saying by your mouths, but Allah says the truth, and He guides to the [right] way. Call

them [i.e., the adopted children] by [the names of] their fathers; it is more just in the sight of

Allah. But if you do not know their fathers, they are your brothers in religion…" [Quran 33:

4-5]

This shows that the declaration of adoption does not change realities, alter facts, or make a

stranger a relative, or an adopted child a son or daughter. A mere verbal expression or figure

of speech cannot make the blood of a man run through the veins of the adopted child,

produce natural feelings of affection found in normal parent-child relationships, or transfer

the genetic characteristics, or physical, mental, or psychological traits.

Adoption of a Child in Islamic Law:

In pre-Islamic Arabia adoption was a well-established institution. Arabs used to treat their

adopted sons as natural sons and prohibition of marriage was created among the parties

involved.2 The status of adoption in Islamic law is derived from the following verses of the

1
http://www.quran-islam.org/faq/quranic_laws/inheritance_-_adopted_children_%28P1421%29.html
True Islam (Rights Of Adopted Children in Inheritance)
2
Robert Roberts, The Social Laws of the Qur’an, (London: Williams and Norgate Ltd, 1925), 49.

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 Qur’ān: The distinction between real son and adopted son is described as under: ‘Allah has

not made for any man two hearts in his (one) body: nor has he made your wives whom ye

divorce by Zihār3 your mothers: nor has he made your adopted sons your sons. Such is

(only) your (manner of) speech by your mouths. But Allah tells (you) the truth, and He

shows the right way.’4 The importance of establishment of parentage is described in Quran

as under: ‘call them by (the names of) their fathers: that is juster in the sight of Allah. But if

they know not their father’s (names, call them) your brothers in faith or your Mawlās (freed

slaves).’5

Another verse describes the reality of adopted son as under: ‘behold: you did say to one who

had received the grace of Allah and they favor: ‘retain you (in wedlock) thy wife and fear

Allah’. But you did hide in the heart that which Allah was about to make manifest: you did

fear the people, but it is more fitting that you should fear Allah. Then when Zaid had

dissolved (his marriage) with her, with the necessary (formality), we joined her in marriage

to them: in order that (in future) there may be no difficulty to the believers in (the matter of)

marriage with the wives of their adopted sons, when the latter have dissolved with the

necessary (formality) (their marriage) with them. And Allah’s command must be fulfilled.’6

These verses concern Zaid ibn Hārithah who was the Prophet’s adopted son and was called

Zaid ibn Muhammad. In pre Islamic Arabia adopted sons were treated like natural sons.

Zainab Bint Jahsh was the Prophet’s cousin and Zaid’s ex-wife. The Prophet (PBUH)

3
Zihār was an Arab custom, by which the husband divorces his wife by comparing her to his mother.
4
Al-Qurān, Al-Ahzab:4
5
Al-Qurān, Al-Ahzab:5
6
Al-Qurān, Al-Ahzab:37

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 married her. According to the Qur’ān a marriage with the ex-wife of a natural son is

prohibited.7

The above mentioned verses were revealed in this context and it was made clear that

adoption does not create prohibition of marriage and adopted children are not to be

considered the same as natural children. Hārithah was Zaid’s biological father.

According to the above-mentioned verse children should be named after their biological

fathers, so Zaid, who was called Zaid ibn Muhammad, was again called Zaid ibn Hārithah

after revelation of these verses.8

These verses abolished the custom of adoption of the pre-Islamic era. In Islamic law there is

no option of legal adoption according to the majority of scholars. 9 There are some scholars

who are of the opinion that adoption is not prohibited, but is mubāh. In all Muslim countries

the opinion of the majority of jurists is followed.10 This can be seen in various reports of

Muslim countries to the United Nations Commission on the Rights of the Child, in which

they have all said that in Islam the institution of adoption does not exist. The reason for

prohibition of change of lineage of a child is twofold. First is the preservation of identity of

the child which is his/her basic right. The surname of a child shows the paternity and lineage

of the child and is not allowed to change.11 The child has a right to be informed about

7
Al-Qurān, Al-Nisa:23
8
AbīJa‘far Muhammad Jarīr Al-Tabarī, Jāmi‘ Al-Bayān fī Tā‘wīl Āyah Al-Qur’ān: Tafsīr Al-Tabarī, (Cairo: Dār-al-
Salām, 2007), Vol. 8, 6665-6670.
9
Asaf A. A. Fyzee, Outlines of Muhammadan Law, (London, New York and Bombay: Oxford University Press,
1955), 163.
10
David Pearl, A Text Book on Muslim Personal Law,(London: Croom Helm, 1987), p.89, The same approach is
followed in Pakistan. This can be seen in Supreme Court’s judgment in Sher Afzal V. Shamim Firdaus, PLD 1980
SC 228.
11
Shabnam Ishaque, Islamic Principles on Adoption: Examining the Impact of Illegitimacy and Inheritance Related
Concerns in Context of a Child’s Right to an Identity, International Journal of Law, Policy and the Family, Vol.
22(3), (2008),396-397-398; Hammudah ‘Abdul ‘Ati

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 adoption and to identify itself with the name of its parents. The right to identity is

acknowledged by the Convention on the Rights of the Child 1989 12 in Article 8, which

explicitly mentions a child’s right to identity, nationality, name and family relations, as

recognized by law. The second reason is to comply with the clear rules relating to

prohibition of marriage. Blood relations create a marriage prohibition whereas adoption does

not.13 Shaheen Sardar ‘Ali rightly pointed out ‘the focus of the verses is not prohibition of

adoption but on implications of equating relationships originating from different

circumstances’.14 Adoption which includes change of lineage of the child may also create

doubts in the minds of legal heirs and this may result in discord in the family. If adopted

children are treated as natural children legal heirs are deprived of their shares in inheritance

which is against justice.15

Status of Adopted Child under Pakistan Law:

Adoption in Pakistani Law and Problems in its Implementation in Pakistani law adoption is

not recognized unless there is a special custom of adoption in any family or

tribe.16According to the Guardians and Wards Act 1908 the guardian court has authority to

appoint a guardian if this is in the welfare of the minor. Pakistan’s stand on adoption can be

seen from the reports submitted on the Convention on the Rights of the Child by Pakistan in

which Pakistan said that legal adoption is unIslamic and being an Islamic State provisions

12
Hereinafter the CRC.
13
Mustafā Shalabī, Ahkām-al-Usrah fil Islām, (Beirut: Dār-al-Nahdah Al-‘Arabīyah, 1973), p.686; Ishaque, Islamic
Principles, 2008, 402; Shaheen Sardar ‘Ali,.
14
Ali, A Comparative Perspective, 2007, 154.
15
Shalabī, Ahkām-al-Usrah, 703-704; Ati, The Family Structure, 1970, 334.
16
Consideration of the Reports Submitted by State Parties under Article 44 of the
Convention.http://www.refworld.org/topic,50ffbce526e,50ffbce5274,4ae9a11c0,0,CRC,,.html. (accessed 25th
November 2012). Also see Pakistan’s third and fourth periodic report submitted to the United Nations Committee on
the Rights of the Child in 2008.

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 related to adoption will not be applied in the case of Pakistan. 17 Pakistani courts have

frequently stated that adoption is un-Islamic.

Case Laws

 In Sher Afzal v Shamim Firdaus the Supreme Court of Pakistan said that ‘…

there is no institution of adoption in Islamic law’.18 As Pakistan follows the rule of

binding precedent, the decision of the Supreme Court is binding on all lower courts.

In Pakistani law legal adoption is only recognized where a special family or tribal

custom is proved, which will prevail provided that the custom is given priority by

legislation over Muhammadan law. Generally rules of adoption in Pakistani law are

based on Islamic law. An adopted child does not have the same rights as a biological

child. The child has no right to the property of his adoptive father, neither in his life

nor after his death. But an adoptive father, if he wants, can give her one-third of his

property by bequest.

 In Abdus Salam v. A. D. J. Jhang the Supreme Court of Pakistan decided that

an adopted child cannot inherit from her adoptive parents but has a right to inherit

from her biological parents.19 Despite legal prohibition adoption is practiced in

Pakistan.20 There are two ways in which this happens. The first is to use the name of

the adoptive mother on the birth certificate at the time of discharge from the

hospital. For this to work, arrangements are made with the doctor (or mid-wife) and

17
Consideration of the Reports Submitted by State Parties under Article 44 of the Convention.
http://www.refworld.org/topic,50ffbce526e,50ffbce5274,4ae9a11c0,0,CRC,,.html.
(accessed 25th November 2012). Also see Pakistan’s third and fourth periodic report submitted to the United
Nations Committee on the Rights of the Child in 2008.
18
PLD 1980 SC 228; also see Arif Mansoor Ahmed v. Fayyaz Ali, 2000 YLR Lahore, p.2317
19
1988 SCMR 608.
20
Ali, 2007, 155-156

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 the natural mother. The second is for the adoptive parents to file affidavits declaring

that the natural parents have given the child into their care by their consent, without

any undue influence or coercion and they are now responsible for the care of the

child and will incur all expenses for her upbringing.21

 The child has no right to the property of his adoptive father, neither in his life nor

after his death. But an adoptive father, if he wants, can give her one-third of his

property by bequest.

Conclusion:

Islamic law prohibits change of lineage that is why it is argued that legal adoption is prohibited

in Islam. Pakistan being an Islamic state follows Islamic law and prohibits adoption. Total

prohibition takes adoption out of the domain of law. Adoption is still practiced in Pakistan but

no procedure or rules are there to regulate it. Kafālah is Islamic alternative to adoption but

unfortunately Pakistan does not provide any such system to facilitate issueless couples. It is

recommended that a state sponsored system of kafālah should be introduced where the child

can be adopted with the agreement of the biological parents but will not take the family name

or inherit. The Committee on the Rights of the Child has urged Pakistan to formulate

legislation for alternative care for children to ensure quality care standards and regular

monitoring of such facilities. The Committee has shown concern that, although Pakistan in its

report has said that adoption is un-Islamic so it refers to the Islamic system of kafālah, Pakistan

does not have any laws to establish such system.76 By introducing a kafālah system Pakistan

will not only implement an important provision of Islamic law but will also comply with its

international obligations.

21
Ibid

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 DRAFT OF WILL DEED

In the name of God, the Beneficent, the Merciful.

I, Mr. Varun, son of Shri Gupta , aged 72 years, resident of House No.466 near Bandra Voli Sea
Link, Bombay do hereby revoke all my former Wills, Codicils and Testamentary dispositions
made by me. I declare this to be my last Will and Testament.
I maintain good health, and possess a sound mind. This Will is made by me of my own
independent decision and free volition. Have not be influenced, cajoled or coerced in any manner
whatsoever.
I hereby appoint my Wife , as the sole Executor of this WILL.
The name of my wife is Sunila Varun. We have no children except one adopted child namely
Mr. Sethi I own following immovable and movable assets.
1.     One House No.466 in Bandra Voli Sea Link, Bombay.
2.     Two open plots.
All the assets owned by me are self-acquired properties. No one else has any right, title, interest,
claim or demand whatsoever on these assets or properties. I have full right, absolute power and
complete authority on these assets, or in any other property which may be substituted in their
place or places which may be Acquired or received by me hereafter.
I hereby give, devise and bequeath all my properties, whether movable or immovable,
whatsoever and wheresoever’s to my wife, Sunila Varun, and One-Third of m property to m Son
Mr. Sethi, absolutely forever.
IN WITNESS WHEREOF I have hereunto set my hands on this 12th day of May, 2020 at 3:49
pm.
SIGNED by the Testator and published and declared as and for his last Will and Testament, in
the presence of us both present together at the same time who at his request and in his presence
and in the presence of each other have hereunto subscribed our names as witnesses.
_____________________
_____________________
Signature of Witness
Signature of Witness
Name: Mr. Kapoor
Name: Aneel Varun
Address: House No. 90,
Address: House No. 57, St#
St# 13, near Shukla Devi,
32, near Shukla Devi,
Bombay.
Bombay.
Occupation: Manager,
Occupation: Doctor
MCB

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