Introduction: The concept of adoption in Pakistan is deeply influenced by Islamic law, which places significant emphasis on lineage and family ties. As a result, the traditional Western notion of adoption is not legally recognized in Pakistan. Instead, the country follows a guardianship model, where children are placed under the care of guardians without changing their legal parentage. This article examines the legal challenges and barriers in the adoption process in Pakistan, highlighting key legal cases that have shaped the current framework.
Legal Framework: In Pakistan, the primary legislation governing the guardianship of minors is the Guardians and Wards Act of 1890. Under this Act, individuals can apply for guardianship of a child, but this does not equate to legal adoption as understood in many Western countries. The Act ensures that the welfare of the child is the paramount consideration in any guardianship arrangement.
Islamic Perspective on Adoption: Islamic law, as practiced in Pakistan, does not recognize adoption in the sense of creating a new parent-child relationship with inheritance rights. The Quran emphasizes maintaining the child’s original lineage and family name, which is crucial for matters of inheritance, marriage, and family relations. Instead, the concept of ‘Kafala’ is practiced, which involves caring for an orphaned or abandoned child without altering their legal identity.
Key Legal Cases:
- 2023 PLD 214 Karachi High Court Sindh (Raj Ram vs. Shirmati Reeta):
- Summary: The petitioner, Raj Ram, was the grandfather of minors whose father had passed away. The court initially directed the petitioner to pay maintenance to the minors. However, the High Court ruled that it is the state’s responsibility to provide for such children through institutions like Pakistan Bait-ul-Mal.
- Significance: This case underscores the role of the state in providing for destitute and orphaned children, reinforcing the idea that the responsibility does not solely lie with family members but also with government institutions.
- 2015 GBLR 38 Supreme Appellate Court (NADRA Authorities Case):
- Summary: The Supreme Appellate Court clarified the distinction between adoption and guardianship under Islamic law. It held that while guardianship can be granted to relatives or other suitable persons, adoption does not create a new legal relationship. The court emphasized that guardianship should prioritize the welfare of the minor and that legal procedures must be followed to ensure proper guardianship.
- Significance: This case highlighted the importance of following legal protocols in guardianship cases and reinforced the idea that adoption does not alter the child’s legal identity or inheritance rights.
- 2015 PLD 401 Lahore High Court Lahore (Miss Fauzia Iqbal vs. Farhat Jahan):
- Summary: In this case, the court considered the welfare of a minor who had been living with her paternal aunt since infancy. The biological mother sought custody, but the court ruled in favor of the aunt, considering the minor’s established bonds and preference.
- Significance: This case illustrates the court’s focus on the child’s welfare and emotional bonds in custody disputes, even when the biological parent seeks to reclaim custody after a prolonged period.
- 2012 PLD 208 Karachi High Court Sindh (Mrs. Ingrid Pereira vs. Vith Additional District Judge, Karachi South):
- Summary: Christian petitioners sought guardianship of minors with their father’s consent to take them abroad. The courts initially denied the request, but the High Court reversed the decision, emphasizing the minors’ welfare and better living conditions with the petitioners abroad.
- Significance: This case demonstrates the courts’ willingness to consider international guardianship arrangements when they serve the child’s best interests, highlighting flexibility in applying guardianship laws for non-Muslims.
Conclusion: The adoption process in Pakistan is fraught with legal and cultural challenges. The emphasis on lineage and family ties in Islamic law means that traditional adoption, as understood in the West, is not practiced. Instead, guardianship arrangements are made to ensure the welfare of orphaned and abandoned children. Key legal cases have shaped the understanding and implementation of these laws, emphasizing the state’s role in providing for such children and the importance of following legal procedures to ensure their welfare.
Q & A on Islamic Law and Adoption in Pakistan
- Q: Can Muslims adopt children according to Islamic law?
- A: Muslims are permitted to care for children who are not their own but are prohibited from adopting them in the legal sense that changes the child’s lineage.
- Q: How does adoption in Western countries differ from Islamic adoption practices?
- A: In Western countries, adopted children take the adoptive family’s name and often lose contact with their biological parents, while Islamic practice maintains the child’s lineage and family name.
- Q: What is the significance of lineage in Islam?
- A: Lineage is crucial in Islam for laws related to marriage, custody, and inheritance, ensuring that family relationships and heritage are traceable.
- Q: How does Islam view the relationship between a guardian and a child?
- A: The relationship is seen as a foster relationship, where the guardian cares for the child without replacing the biological family.
- Q: Can an adopted child inherit from their adoptive parents in Islam?
- A: No, an adopted child cannot inherit from adoptive parents but can inherit from their biological parents.
- Q: Is it permissible for a foster father to marry the divorced wife of his adopted son?
- A: Yes, it is permissible for a foster father to marry the divorced wife of his adopted son, as they are not considered blood relatives.
- Q: Can adopted children inherit property from their adoptive parents in Islam?
- A: No, adopted children cannot inherit property from their adoptive parents, but they can inherit from their natural parents.
- Q: Can adoptive parents bequeath property to an adopted child?
- A: Yes, adoptive parents can make a will bequeathing one-third of their estate to the adopted child or gift property during their lifetime.
- Q: What is ‘Kafala’ in Islamic law?
- A: ‘Kafala’ is a form of foster care where an individual pledges to support and care for an orphaned or abandoned child until they reach maturity, without changing the child’s lineage.
- Q: What are some Quranic revelations that advocate the care of orphans?
- A: The Quran emphasizes caring for orphans in verses such as 2:220, 4:2, 4:6, 4:10, 4:127, and 17:34.
- Q: What did the Prophet Muhammad (PBUH) say about caring for orphans?
- A: The Prophet (PBUH) said, “I and the guardian of an orphan will be in Paradise like these two fingers,” illustrating the closeness of their relationship in the hereafter.
- Q: How does the Guardians and Wards Act 1890 relate to adoption in Pakistan?
- A: The Act allows courts to appoint guardians for children, providing a legal framework for guardianship rather than adoption.
- Q: What is the role of the district court in the guardianship process under the Guardians and Wards Act 1890?
- A: The district court can issue a guardianship order if it deems it in the welfare of the minor.
- Q: Can the natural parents of a child retain their parental rights under ‘Kafala’?
- A: Yes, natural parents retain their parental rights, and the foster arrangement is made with their consent.
- Q: How does ‘Kafala’ preserve the child’s blood ties?
- A: ‘Kafala’ ensures that the child retains their biological family name and lineage, maintaining their blood ties.
- Q: Are there any inheritance rights for children under ‘Kafala’?
- A: No, children under ‘Kafala’ do not have inheritance rights from their foster parents.
- Q: Can adoptive parents in Pakistan take children abroad?
- A: Yes, as long as the child is to be brought up as a Muslim, Pakistani courts may allow adoptive parents to take the child abroad.
- Q: What is the UN Convention on the Rights of the Child’s stance on ‘Kafala’?
- A: The Convention recognizes ‘Kafala’ as an acceptable form of care for children deprived of their family environment.
- Q: What does Article 20 of the UN Convention on the Rights of the Child state about alternative care?
- A: It states that children deprived of their family environment are entitled to special protection and assistance, including options like foster placement, ‘Kafala’, and adoption.
- Q: How does the Guardians and Wards Act 1890 formalize the guardian-ward relationship?
- A: The Act enables individuals to obtain legal guardianship through a court order, ensuring the welfare of the child.
- Q: What is the process for obtaining legal guardianship in Pakistan?
- A: Prospective guardians must submit an application to the district court, which assesses their eligibility and suitability.
- Q: Can non-relatives foster children under ‘Kafala’?
- A: Yes, ‘Kafala’ allows non-relatives to foster children, provided the arrangement is made with the natural parents’ consent.
- Q: How does ‘Kafala’ function without state involvement?
- A: ‘Kafala’ can occur informally within extended families without state involvement, especially in Islamic states.
- Q: What are the social biases against adopted children in Pakistan?
- A: There are biases against adopted children, particularly illegitimate and disabled children, which affect their treatment and acceptance in society.
- Q: What role do orphanages play in the adoption process in Pakistan?
- A: Orphanages like Kashana-i-Atfal’s Naunihal Baby Centre and the Bilquis Edhi Foundation facilitate the care and placement of abandoned children.
- Q: How is adoption viewed in Pakistan’s legal system?
- A: Adoption is not legally recognized; instead, guardianship is used to provide care for children without changing their lineage.
- Q: Can Muslims in Pakistan legally adopt children?
- A: Muslims can obtain legal guardianship through the Guardian and Wards Act but cannot adopt children in the legal sense that changes their lineage.
- Q: How does the Guardians and Wards Act 1890 protect children’s welfare?
- A: The Act ensures that guardianship arrangements are made in the best interests of the child, focusing on their welfare and protection.
- Q: Are there any restrictions on who can become a guardian in Pakistan?
- A: Prospective guardians must meet specific criteria, including age, marital status, financial stability, and moral character.
- Q: What documents are required for obtaining guardianship in Pakistan?
- A: Required documents include an application form, medical certificate, police clearance certificate, income certificate, and character references.
- Q: How does the court determine the best interests of the child in guardianship cases?
- A: The court considers factors such as the child’s welfare, the suitability of the guardian, and the potential benefits to the child.
- Q: Can foreign nationals adopt children in Pakistan?
- A: Foreign nationals can obtain guardianship if they meet specific criteria, including residing in a country with a bilateral adoption treaty with Pakistan.
- Q: What is the role of the Central Adoption Resource Authority (CARA) in Pakistan?
- A: CARA oversees the adoption process, including the registration of prospective adoptive parents and matching them with eligible children.
- Q: What is the process for registering as a prospective adoptive parent in Pakistan?
- A: Prospective parents must submit an application and various documents, including identification, marriage certificate, income tax returns, medical certificate, and police clearance certificate.
- Q: How does the matching process work for prospective adoptive parents in Pakistan?
- A: CARA matches prospective parents with eligible children based on factors such as age, gender, and religion.
- Q: What happens during the adoption hearing in Pakistan?
- A: The court reviews the adoption application and home study report, then decides whether to grant the adoption.
- Q: What is an adoption order in Pakistan?
- A: An adoption order legally transfers the child from their biological parents to the adoptive parents, granting them guardianship.
- Q: How are adoption orders registered in Pakistan?
- A: Adoption orders are registered with the National Database and Registration Authority (NADRA), and the child receives a new birth certificate listing the adoptive parents.
- Q: What are the primary laws governing adoption in Pakistan?
- A: The primary laws are the Guardian and Wards Act of 1890 and the Child Adoption (Regulation) Act of 2016.
- Q: How does the Child Adoption (Regulation) Act of 2016 impact adoption in Pakistan?
- A: The Act provides a framework for the adoption process, including registration, matching, and legal procedures for adoptive parents.
- Q: What are some challenges in the adoption process in Pakistan?
- A: Challenges include strict eligibility requirements, bureaucratic delays, cultural and religious barriers, and complex legal procedures.
- Q: How do cultural and religious norms affect adoption in Pakistan?
- A: Cultural and religious norms prioritize blood relations, leading to skepticism towards adoption and complicating the acceptance of adopted children.
- Q: Can adopted children take the surname of their adoptive parents in Pakistan?
- A: No, adopted children retain their biological family name and lineage.
- Q: What support services are available for adoptive parents and children in Pakistan?
- A: There is a significant lack of support services, including psychological counseling, legal assistance, and post-adoption support.
- Q: How does Islamic law view the inheritance rights of adopted children?
- A: Adopted children do not have inheritance rights from their adoptive parents under Islamic law.
- Q: Can adoptive parents make financial provisions for adopted children in their will?
- A: Yes, adoptive parents can bequeath one-third of their estate to the adopted child through a will.
- Q: How does the lack of a comprehensive legal framework impact adoption in Pakistan?
- A: The absence of a specific adoption law creates uncertainty and legal ambiguity, making the process complex and deterring prospective adoptive parents.
- Q: What are the benefits of ‘Kafala’ under Islamic law?
- A: ‘Kafala’ allows children to be cared for by foster parents while maintaining their biological lineage and family ties, ensuring their identity is preserved.
- Q: How does ‘Kafala’ address the needs of orphaned or abandoned children?
- A: ‘Kafala’ provides a framework for the care and protection of orphaned or abandoned children without changing their legal parentage, aligning with Islamic principles.
- Q: What role do government agencies play in the adoption process in Pakistan?
- A: Government agencies, such as the Central Adoption Resource Authority (CARA) and district courts, oversee the registration, assessment, and legal proceedings involved in guardianship and adoption.
- Q: Can adoptive parents in Pakistan legally change the child’s name?
- A: No, Islamic law prohibits changing the child’s family name to maintain their lineage and biological identity.
- Q: What are the key requirements for foreign nationals adopting a child in Pakistan?
- A: Foreign nationals must meet additional criteria, including residing in a country with a bilateral adoption treaty with Pakistan and obtaining a home study and visa from their home country.
- Q: How does the Guardians and Wards Act 1890 align with Islamic principles of child care?
- A: The Act aligns with ‘Kafala’ by allowing guardianship without altering the child’s lineage, ensuring care and protection while preserving family ties.
- Q: What is the significance of a home study report in the adoption process?
- A: A home study report assesses the prospective guardian’s suitability and living conditions to ensure the child’s welfare and best interests.
- Q: Can guardianship be revoked in Pakistan?
- A: Yes, guardianship can be revoked if it is deemed not in the best interests of the child, although such decisions are made based on legal and equitable considerations.
- Q: Are there specific guidelines for adopting children of different religions in Pakistan?
- A: Yes, the religion of the child and the prospective guardian is considered to ensure the child’s welfare and that they are raised in their religion of birth if known.
- Q: What are some misconceptions about adoption in Islam?
- A: A common misconception is that adoption is prohibited, whereas Islam allows ‘Kafala’, which is a form of foster care maintaining the child’s lineage.
- Q: How does the legal system in Pakistan address the rights of abandoned children?
- A: The legal system provides for guardianship arrangements under the Guardians and Wards Act 1890, ensuring care and protection without changing the child’s legal identity.
- Q: What legal procedures must adoptive parents follow in Pakistan?
- A: Adoptive parents must file a petition with the district court, submit required documents, and undergo a home study and court hearings to obtain guardianship.
- Q: Can adoptive parents take a child abroad for adoption?
- A: Yes, as long as the child is to be raised as a Muslim, courts in Pakistan may permit adoptive parents to take the child abroad.
- Q: What factors influence the court’s decision in guardianship cases?
- A: Factors include the child’s welfare, the suitability of the guardian, the guardian’s ability to provide for the child, and the child’s best interests.
- Q: How does the cultural preference for blood relations affect adoption in Pakistan?
- A: This preference can lead to skepticism towards adoption, complicating acceptance and integration of adopted children into families and communities.
- Q: What are some challenges faced by orphanages in Pakistan?
- A: Orphanages face challenges such as inadequate resources, neglect, abuse, and exploitation, affecting the well-being and development of children.
- Q: How does the Guardian and Wards Act 1890 protect the identity of adopted children?
- A: The Act ensures that the child’s legal identity and lineage are preserved, aligning with Islamic principles and maintaining family ties.
- Q: Are there any inheritance rights for children under ‘Kafala’?
- A: No, children under ‘Kafala’ do not have inheritance rights from their foster parents but can inherit from their biological parents.
- Q: Can adoptive parents in Pakistan include adopted children in their will?
- A: Yes, adoptive parents can bequeath up to one-third of their estate to the adopted child in their will.
- Q: What is the role of the district court in the guardianship process?
- A: The district court assesses guardianship applications, reviews required documents, and makes decisions based on the child’s best interests.
- Q: How does the adoption process address the welfare of the child?
- A: The process includes thorough assessments, home studies, and court hearings to ensure the child’s welfare and best interests are prioritized.
- Q: Can adopted children retain their biological family ties?
- A: Yes, under ‘Kafala’, adopted children retain their biological family ties and lineage, preserving their identity.
- Q: What is the significance of the Quranic verses regarding orphans?
- A: Quranic verses emphasize the care and protection of orphans, highlighting the importance of providing for their needs and welfare.
- Q: How does the concept of ‘Kafala’ differ from Western adoption?
- A: ‘Kafala’ maintains the child’s lineage and does not change their legal identity, unlike Western adoption which often involves a legal change in parentage.
- Q: What legal protections exist for children under ‘Kafala’?
- A: Children under ‘Kafala’ are protected by guardianship arrangements that ensure their care, education, and well-being without altering their legal identity.
- Q: What challenges do prospective adoptive parents face in Pakistan?
- A: Challenges include stringent eligibility criteria, bureaucratic delays, cultural and religious barriers, and complex legal procedures.
- Q: How does the Guardians and Wards Act 1890 formalize guardianship?
- A: The Act provides a legal framework for appointing guardians, ensuring that the child’s welfare and best interests are protected.
- Q: Can adoptive parents in Pakistan change the child’s religion?
- A: No, the child must be raised in their religion of birth if known, as per Islamic principles and legal guidelines.
- Q: What is the role of the Central Adoption Resource Authority (CARA)?
- A: CARA oversees the adoption process, including registration, matching, and legal procedures for prospective adoptive parents.
- Q: How does the lack of support services impact adoption in Pakistan?
- A: The lack of support services such as counseling and legal assistance can make the adoption process more challenging for adoptive parents and children.
- Q: What legal rights do children have under ‘Kafala’?
- A: Children under ‘Kafala’ have the right to care, education, and protection, but do not have inheritance rights from their foster parents.
- Q: How does Islamic law view the care of orphans?
- A: Islamic law highly values the care of orphans, encouraging believers to provide for their needs and welfare as a meritorious act.
- Q: What is the process for obtaining a guardianship order in Pakistan?
- A: Prospective guardians must file a petition with the district court, undergo assessments, and attend court hearings to obtain a guardianship order.
- Q: Can adoptive parents legally disown an adopted child in Pakistan?
- A: While disowning is not common, legal and equitable considerations must be taken into account, similar to the disowning of biological children.
- Q: How does the legal system ensure the welfare of adopted children?
- A: The legal system includes assessments, home studies, and court oversight to ensure that the welfare and best interests of the child are prioritized.
- Q: What are the primary legal documents required for adoption in Pakistan?
- A: Key documents include an application form, medical certificate, police clearance certificate, income certificate, and character references.
- Q: How does the adoption process protect the child’s identity in Pakistan?
- A: The process maintains the child’s biological family name and lineage, ensuring their identity is preserved.
- Q: Can adoptive parents take the child abroad without changing their legal identity?
- A: Yes, as long as the child is raised as a Muslim, Pakistani courts may allow adoptive parents to take the child abroad without changing their legal identity.
- Q: What role do cultural norms play in the adoption process in Pakistan?
- A: Cultural norms that prioritize blood relations can create skepticism towards adoption and complicate the integration of adopted children.
- Q: How does the legal framework address the care of illegitimate children?
- A: Illegitimate children face social biases, but the legal framework provides for their care and protection through guardianship arrangements.
- Q: What are the benefits of foster care under ‘Kafala’?
- A: Foster care under ‘Kafala’ provides children with care and protection while maintaining their lineage and family ties.
- Can adoptive parents make financial provisions for their adopted children in Pakistan?
- A: Yes, adoptive parents can provide for their adopted children through wills, bequeathing up to one-third of their estate, and by gifting property during their lifetime.
- Q: What role do judges play in the adoption process in Pakistan?
- A: Judges review guardianship applications, conduct hearings, and make decisions based on the welfare and best interests of the child.
- Q: How does the legal system in Pakistan address the needs of orphans?
- A: The legal system provides for guardianship arrangements under the Guardians and Wards Act, ensuring care and protection for orphans.
- Q: Are there any specific criteria for adoptive parents in Pakistan?
- A: Yes, adoptive parents must meet criteria such as age, marital status, financial stability, and moral character.
- Q: What is the significance of the Holy Quran’s teachings on orphans in adoption practices?
- A: The Quran encourages the care and protection of orphans, emphasizing the importance of providing for their needs and welfare.
- Q: Can adopted children retain their inheritance rights from their biological parents in Pakistan?
- A: Yes, adopted children retain their inheritance rights from their biological parents even after being taken in by another family.
- Q: How do Islamic principles influence the adoption process in Pakistan?
- A: Islamic principles ensure that the child’s lineage and family ties are preserved, emphasizing guardianship rather than legal adoption.
- Q: What are the implications of adopting a child without changing their family name in Pakistan?
- A: Preserving the child’s family name maintains their identity and lineage, which is crucial for laws related to marriage, custody, and inheritance.
- Q: How does the Guardians and Wards Act ensure the welfare of children in Pakistan?
- A: The Act provides a legal framework for appointing guardians, ensuring that decisions are made in the best interests of the child.
- Q: Can adoptive parents in Pakistan change the religion of the child they adopt?
- A: No, the child must be raised in their religion of birth if known, as per Islamic principles and legal guidelines.
- Q: How does ‘Kafala’ provide for the care of orphaned or abandoned children in Pakistan?
- A: ‘Kafala’ allows children to be cared for by foster parents while maintaining their biological lineage and family ties, ensuring their identity is preserved.
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Q: What are the main challenges in the adoption process in Pakistan? – A: Challenges include strict eligibility requirements, bureaucratic delays, cultural and religious barriers, and complex legal procedures.
