Adoption of a Child in Islamic and Pakistani Law: Problems of Implementation

Adoption of a Child in Islamic and Pakistani Law:

Problems of Implementation
*Mudasra Sabreen
**Samia Maqbool Niazi

Abstract
Although Islamic law and Pakistani law prohibit adoption it is still practiced in Pakistan.
Islamic law does not allow change of paternity and emphasizes on the identity of
biological parents. The article explores rules regarding adoption in Islamic law along
with distinctions between legitimacy by acknowledgement and adoption, and fosterage
and adoption. This discussion will be followed by Pakistani law and relevant provisions
of the Convention on the Rights of the Child 1989. The article argues that total
prohibition does not mean that adoption is not practiced. Adoption does take place in
Pakistan but is out of the domain of the law. Pakistan needs to regulate adoption to bring
it in the domain of law. A state sponsored system of kafālah should be introduced where
the child can be adopted with the agreement of biological parents but will not take the
family name or inherit as it is the condition in Islamic law.
Keywords: Adoption, kafālah, Islamic Law, Pakistani Law
Introduction:
This article discusses the rules regarding adoption of a child in Islamic and
Pakistani law and the problems relating implementation of these rules. The term
‘adoption of a child’ as used in this article means when a couple whether childless or not
decide to bring a child into their family to be treated as their own. In non-Islamic
societies such a child gets name of the adoptive parents and is treated like a biological
child with regard to inheritance and all other rights.
On 1st August 2013 BBC reported that ‘two baby girls who were abandoned in
Pakistan’s southern city of Karachi have been allocated new parents during a live
television broadcast’.1
This incident, which provoked criticism by different segments of society,
occurred because there are no rules regarding adoption in Pakistan. No procedure is given
by Pakistani law for adoptive parents to follow. This article explores rules regarding
adoption in Islamic law, Pakistani law and relevant provisions of the Convention on the
Rights of the Child 1989.Total prohibition does not mean that adoption is not practiced.
The article argues that Pakistan needs to regulate adoption to bring it in to the domain of
law.
Work has been done on the concept and the rules regarding adoption2 but it
lacks the discussion over problems in implementation of these rules. This article

*Assistant Professor, Chairperson, Department of Sharia, Faculty of Sharia & Law, International
Islamic University, Islamabad.
**Assistant Professor, Faculty of Sharia & Law, International Islamic University, Islamabad.
1
www.bbc.co.uk/news/world-asia-23529448. (accessed 15th August 2013).
2
For example see 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); Hammudah ‘Abdul ‘Ati,
The Family Structure in Islam, (PhD Thesis, Princeton University, 1970); Ella Landau-Tasseron,
41
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highlights that to exclude adoption from the domain of law is not a solution. As adoption
is practiced by Muslims living in Pakistan and elsewhere there is a need to provide an
alternative to concerned parents and children. Comparative study is done between Islamic
and Pakistani law to show how Islamic law has influenced approach of legislators as well
as Pakistani courts in this regard.
This is a socio-legal research in which analytical and comparative methodology
is adopted. The article explores and analyzes the relevant rules of Islamic as well as
Pakistani law. Effort has been made to consult original sources of Islamic law as well as
writings of modern authors. For Pakistani law statutes as well as case law are consulted.
Reference is made to relevant provisions of international conventions wherever
convenient. This article is divided into five sections: the first section deals with the rules
relating to adoption in Islamic law; the second section deals with the possibility of
adoption of a child through acknowledgement; the third section discusses the alternatives
of adoption in Islamic law; the fourth section elaborates upon relevant provisions of the
Convention on the Rights of the Child 1989; it will be followed by the last section which
entails discussion on Pakistani law. At the end conclusion will summarise my findings.
1- 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.3 The status of adoption in Islamic law is derived from the following
verses of the 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 Zihār4 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.’5
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 ye
know not their father’s (names, call them) your brothers in faith or your Mawlās (freed
slaves).’6

Another verse describes the reality of adopted son as under: ‘Behold: thou didst
say to one who had received the grace of Allah and thy favour: ‘retain thou (in wedlock)
thy wife and fear Allah’. But thou didst hide in thy heart that which Allah was about to
make manifest: thou didst fear the people, but it is more fitting that thou shouldst fear
Allah. Then when Zaid had dissolved (his marriage) with her, with the necessary
(formality), We joined her in marriage to thee: in order that (in future) there may be no

‘Adoption, Acknowledgement of Paternity and False Genealogical Claims in Arabian and Islamic
Societies’, Bulletin of the School of Oriental and Islamic Studies, University of London,Vol. 66 (2),
(2003); Lynn Welchman, Women and Muslim Family Laws in Arab States: A Comparative
Overview of Textual Development and Advocacy, (Amsterdam: Amsterdam University Press,
2007).
3
Robert Roberts, The Social Laws of the Qur’an, (London: Williams and Norgate Ltd, 1925), 49.
4
Zihār was an Arab custom, by which the husband divorces his wife by comparing her to his
mother.
5
Al-Qurān, Al-Ahzab:4
6
Al-Qurān, Al-Ahzab:5
42
Adoption of a Child in Islamic and Pakistani Law: Problems of Implementation

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.’7
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) married her. According to the Qur’ān a marriage with the ex-wife of a natural
son is prohibited.8 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. 9
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.10 There are
some scholars who are of the opinion that adoption is not prohibited, but is mubāh.11 In
all Muslim countries the opinion of the majority of jurists is followed. 12 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.13
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. 14 The child has a
right to be informed about 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 198915 in

7
Al-Qurān, Al-Ahzab:37
8
Al-Qurān, Al-Nisa:23
9
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.
10
Asaf A. A. Fyzee, Outlines of Muhammadan Law, (London, New York and Bombay: Oxford
University Press, 1955), 163.
11
Mubāh is an act, with reference to the doing or omission of which there is no obligation or duty. It
is just a recommendation. Abdul Rahim, Muhammadan Jurisprudence, (Lahore: All Pakistan Legal
Decisions, 1911), 61; Sadr-al-Sharī‘ah Ubaid Ullah Ibn Masūd, Al-Taudīh Sharh-ul-Tanqīh,
(Peshawar: Maktaba Farūqiah, 1996), Vol. 2, 258.
12
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.
13
Imran Ahsan Khan Nyazee, Islamic Law and The CRC, Islamabad Law Review, Spring and
summer (2003), 88-98.
14
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, The Family
Structure in Islam, (PhD Thesis, Princeton University, 1970), 330-333. In Muslim societies first
name of the child is his/her own name whereas second name/surname is the name of the father for
instance if name of the child is ‘Muhammad Abdullah’ the surname Abdullah shows his paternity.
In Arab countries ‘ibn’ which means ‘son of’ is there to show paternity of the child for instance
Muhammad ibn Abdullah would mean Muhammad son of Abdullah.
15
Hereinafter the CRC.
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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.16 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’.17 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.18
If adopted children are treated as natural children legal heirs are deprived of their shares in
inheritance which is against justice.19
2- Possibility of Adoption of a Child through acknowledgement:
In Islamic law a father can acknowledge a child as his child but certain
conditions must be fulfilled to make this acknowledgement legally valid. This section
will discuss possibility of adoption of a child through acknowledgement. In Islamic law
parentage or nasab means lineage. It refers to the ability of a child to be considered a part
of a family group within a tribe20. Nasab relates to referring to the father’s name so that
the lineage of the child can be identified. A major concern in determining parentage is
that the child is legitimate. Legitimacy is established for a child if he/she is born during a
valid or irregular marriage21 (but not in a void marriage), or by acknowledgement by the
father. In Islamic law, legitimacy of a child can be established by acknowledgement.
Acknowledgement of paternity is acceptable even if it takes place on a person’s death
bed. 22 There are four conditions laid down by jurists for an acknowledgement to be
accepted.

(i)The paternity of the child should be unknown. If the child’s paternity is known
it cannot be changed by acknowledgement as in that case the issue will be decided on the
basis of evidence.23
(ii) It must be possible for the acknowledged person to be the child of the
acknowledger. For example, the minimum age of puberty for a boy is twelve years and the
minimum period of gestation is six months: so the child must be twelve years and six

16
Mustafā Shalabī, Ahkām-al-Usrah fil Islām, (Beirut: Dār-al-Nahdah Al-‘Arabīyah, 1973), p.686;
Ishaque, Islamic Principles, 2008, 402; Shaheen Sardar ‘Ali, ‘A Comparative Perspective of the
United Nations Convention on the Rights of the Child and the Principles of Common Law: Law
Reform and Children’s Rights in Muslim Jurisdictions’ in Protecting the World’s Children: Impact
of the UN Convention on the Rights of the Child in Diverse Legal Systems, Ed. Savitri
Goonesekere, (Cambridge: Cambridge University Press, 2007), 154.
17
Ali, A Comparative Perspective, 2007, 154.
18
Shalabī, Ahkām-al-Usrah, 703-704; Ati, The Family Structure, 1970, 334.
19
Ishaque, Islamic Principles, 401, 406, 404-405.
20
For a detailed discussion on legitimacy of the child see Mudasra Sabreen, ‘Parentage: A
Comparative Study of Islamic and Pakistani Law’, Frontiers of Legal Research, 2014, Vol. 1, No. 2.
21
A regular or valid marriage is a marriage having fulfilled all necessary conditions. Irregular
marriage is a marriage that suffers from a temporary bar. It is defined as good in its foundation (asl)
but unlawful in its attributes. It has no legal effects till consummation. Examples of irregular
marriages are: marriage with a woman in state of ‘iddah, contracting a fifth wife when one of the
fourth wife is in ‘iddah, marriage without witnesses, having two sisters in wedlock. A void marriage
is a marriage which suffers from a permanent bar and has no legal effect. Muhammad Amīn bin
‘Umar bin ‘Ābidīn, Hāshiyah Radd al-Mukhtār ‘alā Al-Durr al Mukhtār, Vol. 8, (Dār-al-Thaqāfah
wa Al-Turāth, 2000), 441-442.
22
Wahbah Al-Zuhailī, Al-Fiqh-al-Islāmī wa Adillatuh, (Beirut: Dār-al-Fikr, 1984), Vol. 10, 7265.
23
Shalabī, Ahkām-al-Usrah, 695; Fyzee, Outlines, 166.
44
Adoption of a Child in Islamic and Pakistani Law: Problems of Implementation

months younger than the acknowledger. If the mother is acknowledging the child she must
be nine years and six months older than the child, as the minimum age of puberty in her
case is nine years.24
(iii) If the child has attained puberty he/she must support the acknowledgement.
Puberty is a condition according to the majority of jurists, but attaining the age of
discretion (which is seven years) is a condition according to the Hanafīs. According to the
Hanafīs if the child is above seven years the judge can decide whether he/she is mature
enough to make a statement or not. If the child is under age or insane, its acceptance is not
necessary: if the child is a major and does not support the acknowledgement evidence will
be needed to prove paternity. The Mālikīs differ from the majority of jurists and do not
require acceptance of the child as a condition.25
(iv) No other person should have claimed paternity of the child. If two persons
claim paternity of the same child, paternity will not be established because the statements
of acknowledgement clash with each other. In that case paternity will be established on the
basis of evidence. If a man claims paternity on the basis that the child is his child from
unlawful sexual intercourse, paternity will not be established. Such a claim or
acknowledgement is void. A valid acknowledgement is not only of biological paternity but
also of legitimacy. 26
The above-mentioned conditions are agreed upon by Muslim scholars. There are
some additional conditions laid by some scholars. According to the Hanafīs the child,
whose paternity is going to be established, must be alive at the time of acknowledgement. 27
If the child is dead acknowledgement will not establish paternity posthumously. But if the
acknowledged person has children this limitation does not apply as the establishment of the
paternity of their father will be in their interests. Here the Mālikīs differ from the Hanafīs
for, according to the former paternity can be established for a dead person. The Mālikī
opinion is more logical, as even when a child is dead its identity is important for the family
and the name of the father is a part of the identity. An acknowledged person is considered a
natural child of the acknowledger and acknowledgement gives rise to all legal effects of a
natural relationship between the parent and the child,28 but it does not give rise to a
presumption of marriage between the mother and the father of the child. This is according
to the majority of jurists.29 The Hanafī school disagrees and according to them
establishment of paternity does give rise to the presumption of marriage.30

According to the majority of jurists (except the Hanafis) only the biological father
of a child may acknowledge paternity. If the acknowledgement is made by a person related
to the child but not his father, according to Abū Hanīfah it is only acceptable if confirmed
by the father or in the case of his death or absence, by two heirs in the family. 31 Ibn Hanbal

24
Shalabī, Ahkām-al-Usrah, 696-698; Pearl, A Textbook, 90.
25
Zuhailī, Al-Fiqh-al-Islāmī, Vol. 10, 7266-7267.
26
Ibid.; Abī Ishāque Burhān-al-Dīn Ibrāhīm bin Muhammad bin ‘Abdullah bin Muhammad bin
Muflih, Al-Mubdi‘ Sharh Al-Muqni‘, (Dār-al-Kutb Al-Ilmīyah, 1997), Vol. 7, 70.
27
‘Abdullah ibn Ahmad ibn Qudāmah, Al-Mughnī wa Al-Sharh Al-Kabīr ‘alā Matn Al-Muqni‘, Vol.
9, 4-5 (Beirut: Dār-al-Fikr, 1984), Vol. 5, 334.
28
Roberts, The Social Laws, 52.
29
Dawood Sudiqi ‘Alami and Doreen Hinchcliffe, Islamic Marriage and Divorce Laws of the
ArabWorld, (London: Kluwer Law International, 1996), p.8
30
Ibn Qudāmah, Al-Mughnī, Vol. 5, 335.
31
Zuhailī, Al-Fiqh-al-Islāmī, Vol. 10, 7267-7268.
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however considers the grandfather to be capable of acknowledgement if the father is

dead.32 An acknowledgement of paternity will be considered true if it fulfills all the above
mentioned conditions, unless it is proved false by evidence. Retraction of
acknowledgement of paternity is not acceptable.33
It is important to distinguish adoption from acknowledgement of legitimacy/
paternity. Acknowledgement of paternity does not create paternity: it only establishes an
existing relationship and a natural child is acknowledged by the biological father,
whereas in adoption the paternity of the child is neither claimed nor established. In
adoption the child is considered to be begotten by someone else but taken by adoptive
parents into their care. A child can be adopted even though his/her father is known
whereas a child cannot be acknowledged by another person in such situation.34
3- Alternatives of Adoption in Islamic Law:
There are two alternatives of adoption: fosterage and kafālah. Now we will discuss
each of these alternatives separately.
1-Fosterage:
Fosterage is used as an alternative to adoption. Now we will discuss fosterage
and distinguish it from adoption. In Arabic the word used for fosterage is radā‘ah which
literally means suckling and nursing.35 In its legal sense the term means ‘a child sucking
milk from the breast of a woman for a certain time, which is termed the period of
fosterage’.36 Suckling is one of the natural responsibilities of a mother. It is considered a
right of the child.
If a child is suckled by a wet nurse a relationship in the prohibited degree is
created between the child, the wet nurse, her husband (who is the foster father in this
case), mother of the wet nurse, mother of the foster father, sister of the wet nurse, sister
of the foster father, daughters of the wet nurse, her granddaughters and other children
suckled from the same woman.37 Islamic jurists agree that inter-marriage between
persons having foster relations is prohibited. Fosterage causes a permanent impediment to
marriage. Two children having foster relations cannot marry. The marriage of a man with
the wife of his foster son and foster father and with his wife’s foster mother is also
prohibited.38 It is according to the verse ‘prohibited to you (for marriage) are … foster-
mothers (who gave you suck), foster sisters’.39 The Qur’ān only prohibits marriage with
the foster mother and sisters by this verse but Muslim jurists based on a hadīth ‘whatever

32
M. S. Sujimon, Istilhaq and Its Role in Islamic Law, 18 (2) ALQ (2003), 129.
33
Ibn Qudāmah, Al-Mughnī, Vol. 5, 334-335.
34
Shalabī, Ahkām-al-Usrah, 703; Zuhailī, Al-Fiqh-al-Islāmī, Vol. 10, 7271; Ella Landau-Tasseron,
‘Adoption, Acknowledgement of Paternity and False Genealogical Claims in Arabian and Islamic
Societies’, Bulletin of the School of Oriental and Islamic Studies, University of London, Vol. 66 (2),
(2003), 172-173.
35
Al-Mawrad: Arabic to English Dictionary, (Dār-al-Ilm Lil malāyīn, 1997), 587.
36
Burhān-al-Dīn Abī Al-Hasan Al-Marghīnānī, The Hedāya: Commentary on the Islamic Laws,
Charles Hamilton (Translator), (New Delhi: Kitab Bhavan,1870), 67.
37
Sayed Sikandar Shah, Fosterage as a ground of Marital Prohibition in Islam and the Status of
Human Milk Banks, Arab Law Quarterly, Vol. 9(1), (1994), 3.
38
Kamāl-al-Dīn Muhammad ibn ‘Abdul Wahīd Ibn-al-Humām, Sharh Fath-al-Qadīr ‘alā’ al-
Hidāyah Sharh Bidāyat al-Mubtadi‘, (Beitut: Dār-al-Kutb Al-‘Ilmīyah, 1995), Vol. 3, 422-423;
Alami and Hinchcliffe, Islamic Marriage , 13.
39
Al-Qurān, Al-Nisa:23
46
Adoption of a Child in Islamic and Pakistani Law: Problems of Implementation

is prohibited by consanguinity is also prohibited by fosterage’40 extended this prohibition

to other relations and equated it with consanguinity and affinity. 41
Marriage is prohibited between the child and the foster father as it is presumed
that the milk generates after pregnancy. The person who was the husband of the woman
at the time of pregnancy which caused lactation is called the foster father. 42 If a person
married the wet nurse after she has suckled the child he will not be considered the foster
father as he was not the cause for pregnancy or lactation. If the wet nurse is divorced and
at the time of divorce she was neither pregnant nor lactating her ex-husband will not be
considered the foster father. Similarly if two children are suckled by two different women
but they are married to the same person the children will be considered foster siblings and
the husband the foster father.43 According to traditions the Prophet refused to marry the
daughter of Hamzah and the daughter of Abū Salmah because Hamzah and Abū Salmah
were the Prophet’s foster brothers so their daughters were his foster nieces. He clearly
said to marry these women was unlawful for him because of the prohibition caused by
fosterage.44
Fosterage creates prohibition of marriage between the child and the family of the
milk mother (wet nurse) and is sometimes used as an alternative to adoption.45 According
to a tradition the woman who adopted Sālim ibn Abū Hudhaifah came to the Prophet to
ask about the status of her relationship with her adopted son after revelation of the above
mentioned verses. The Prophet advised her to make him her foster child by breast feeding
him.46
In spite of the prohibition of legal adoption it is a pious deed to look after an
orphan orto be his guardian. The thing which is prohibited is to change the parent’s
names or change the child’s lineage. The Qur’ān says that if you do not know who a
child’s parents are then call the child as ‘your brother in faith’.47

40
Abī Abdullah Muhammad b. Yazīd Al-Qazwīnī Ibn Mājah, Sunan Ibn Mājah in Al-Kutb Al-
Sittah: Sahīh Al-Bukhārī, Sahīh Muslim, Sunan Abī Dā’ūd, Jāmi‘ Tirmidhī, Sunan Al-Nisā’ī, Sunan
IbnMājah, Ed. Sālih ibn ‘Abd-al-Azīz ibn Muhammad ibn Ibrāhīm, (Riyadh: Dār-al-Salām, 1999),
2593.
41
Abdullah ibn Ahmad ibn Qudāmah, Al-Muqni‘ with notes and commentary by Sulaiman bin
‘Abdullah bin Muhammad bin ‘Abdul Wahab,, (Qatar: Al-Matb‘ah Al-Salafiyah wa Maktabuha,
1365AH), Vol. 3, p.297; ‘Alami and Hinchcliffe, Islamic Marriage, 13.
42
Alā-al-Dīn Abī Bakr b. Mas‘ūd Al-Kāsānī, Badāi‘ A-Sanāi‘ fīTartib Al-Sharāi‘, (Beirut: Dār-al-
Kutab Al-‘ilmīyah, 1997), Vol. 5, 66; Ibn Rushd, Bidāyatul Mujtahid, Vol. 3, 1000; Soraya Altorki,
in Arab Society: An Unexplored Problem in the Ethnography of Marriage, Ethnology, Vol. 19 (2),
(1980), 233.
43
Altorki, Milk-Kinship, 233-234.
44
Abū Dā’ūd Sulayman b. Al-Ash‘ath Al-Sijistānī, Sunan Abū Dā’ūd, (Stuttgart: Thesaurus
Islamicus Foundation, 2000), Vol. 1, 349; Shah, Fosterage, 4.
45
There is a difference of opinion at what degree of fosterage prohibition is caused. According to
the Mālikī and the Hanafī schools of thought prohibition will be caused by fosterage irrespective of
its degree. (Al-Sarakhsī, 2001, Vol. 5, 126; Ibn Rushd, Bidayatul Mujtahid, Vol. 3, 995; Ibn-al-
Humām, Sharh Fath-al-Qadīr, Vol. 3, 418-419. According to the Shāf‘īs and the Hanbalīs
prohibition is established on five sucks of milk but not on less than that. (Muhammad ibn Idrīs Al-
Shāf‘i, Kitāb-al-Umm, (Al-Mansūrah: Dār-al-Wafā lil-Tibā‘ah wa al-Nashr wa al-Tawzī‘, 2005),
Vol. 6, 72-75; Ibn Qudāmah, Al-Muqni‘, Vol. 3, 298.
46
Al-Qashīrī, Sahih Muslim, 923.
47
Al-Qurān, Al-Ahzab:5
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2-Kafālah:
Kafālah is Islamic alternative to adoption. The institution of kafālah primarily
provides a mechanism to care for abandoned children. The word kafālah literally means
‘to nourish’ or ‘take charge of’.48 According to Ibn Manzūr‘al-kāfil’ is a person who
looks after an orphan.49 Such a child has no right to the family name or inheritance of the
adoptive parents. But the adoptive parents may give the child up to one third of their
property by making a will. An illegitimate child if adopted will be associated to its
biological mother and will inherit from her. To deprive the father of paternity rights in the
case of an illegitimate child is a punishment as children whether legitimate or illegitimate
were considered wealth in Arab society. Islam asked for deprivation of this wealth if the
child is illegitimate. Generally to look after an illegitimate child is a duty of the mother
and the state but such children may be taken into kafālah.50 By prohibiting adoption and
encouraging kafālah Islam calls for a society based on truth and justice. If adopted
children were to be treated as natural children then legal heirs would be deprived of their
shares in inheritance which is against justice. 51
A baby abandoned by its parents is called a foundling. According to the Hanafis if
there is a risk to the foundling’s life it is wājib52 on the person who finds such a child to
take care of it. If there is no risk to its life it is mandūb.53 According to all schools to take
care of the foundling is a collective duty of the community unless there is a risk of the
death of the child in which case it is a personal duty of the person who finds her.54 The
person who finds a foundling should also act as the child’s guardian and should protect
its interests. In the case of a dispute over guardianship the court shall decide the issue but
the general rule is that a Muslim is preferred over a non-Muslim. If a person claims
paternity of the foundling believing it to be his child, legitimacy of the child is
established provided the conditions of a valid acknowledgement are fulfilled. 55 If the
child is found in a Muslim locality it will be considered a Muslim according to all
schools. The child will be presumed to be of the same religion which is prevalent in the
locality in which it is found.56 The responsibility for the foundling’s maintenance is on
the bait-al-māl (public funds) but if the guardian spends money on the foundling these
funds are recoverable either from public funds or from the foundling after his/her

48
William Thomson Wortabet, Wortabet’s Arabic English Dictionary, Ed. 4th, (Beirut: Maktabah
Lebanon, 1977), 595.
49
Abī Al-Fadl Jamāl-al-Dīn Muhammad b. Mukarram ibn Manzūr, Lisān-al-Arab, (Beirut: Dār
Sādar, 1997), Vol. 5, 422.
50
Lynn Welchman, Women and Muslim Family Laws in Arab States: A Comparative Overview of
Textual Development and Advocacy, (Amsterdam: Amsterdam University Press, 2007), 118.
51
Ishaque, Islamic Principles, 401, pp.404-405, 406.
52
Wājib is an act with reference to which there is an absolute demand by the law giver to perform
that act and it is proved or established by dalīl zannī (probable evidence). Badr-al-Dīn Muhammad
b. Bahadur b. ‘Abdullah Al-Zarkashī, Al-Bahr-al-Muhīt fi Usūl-al-Fiqh, (Kuwait: Wazarah-al-
Shu’ūn Al-Islamīyah, 1992), Vol. 1, 176; Abdul Rahim, Islamic Jurisprudence, 259; Sa‘d-al-Dīn
Mas‘ūd b.‘Umar Al-Taftazānī, Al-Talwīhalā Al-Tawdīh li-Matan Al-Tanqīh fi Usūl-al-Fikh, Vol. 2,
(Peshawar: Maktaba Farūqīyah, 1996), 259
53
If the demand of commission of an act is not absolute the act is called commendable or mandūb.
Abdul Rahim, Islamic Jurisprudence, 61; Sadr-al-Sharī‘ah, Al-Taudīh, Vol. 2, 258.
54
Ibn-al-Humām, Sharh Fath-al-Qadīr, Vol. 6, 103-104; Ibn ‘Ābidīn, Hāshiyah Radd al-Mukhtār,
Vol. 13, 159.
55
Abī Is,hāq Ibrāhīm b.Musā Al-Shātibī, Al-Muwafiqāt fi Usūl-al-Ahkām, (Beirut: Dār-al-Fikr,
1984), Vol. 1, 420-421; Shalabī, Ahkām-al-Usrah, 711.
56
Ibn Qudāmah, Al-Mughnī, Vol. 4, 403-404; Shalabī, Ahkām-al-Usrah, 710.
48
Adoption of a Child in Islamic and Pakistani Law: Problems of Implementation

maturity. 57 Paternity of such a foundling may be acknowledged if all the conditions

mentioned before are fulfilled.58 According to the Shāf‘īs if there is one claimant of
paternity of the foundling there is no need for evidence or physiognomy to establish
paternity. Being a Muslim is not a condition according to them in this case. According to
the Hanafīs as well there is no need of evidence and paternity will be established by
acknowledgement only. According to the Mālikīs paternity of a foundling is not
established except by evidence. They accept circumstantial evidence in this matter for
instance if it is known in the community that the claimant had a child but it was lost. The
Hanbalīs are of the opinion that it is in the interests of the child to provide him/her with a
parent and provider of maintenance so they don’t consider any condition for
establishment of paternity except acknowledgement.59 Rules of Islamic law related to
foundlings protect children irrespective of their status of legitimacy.
4- The Recognition of Islamic Alternative in the Convention on the Rights of the
Child:
The Convention on the Rights of the Child 198960 is the most significant
document and has contributed most in recognition and protection of the rights of the
child. It is also the most ratified document in the world. It was adopted by the United
Nations General Assembly in 1989 and entered into force in 1990. This document is
ratified by 192 countries except Somalia and USA. A unique feature of the CRC is that it
is the first ever UN human rights instrument to refer to Islamic law in one of its articles.61
In Article 20 kafālah is mentioned as an institution to care for children deprived of their
families. This Article mentions kafālah with adoption and foster placement. Children
under kafālah do not take the name of the adoptive family but they have rights to care,
maintenance and education. Such a child will not inherit from the adoptive family. 62
Article 21 is about adoption and does not apply to Muslim countries who consider
adoption illegal as Article 20 explicitly mentions kafālah as an Islamic alternative to
adoption.63

Islamic law does not recognize legal adoption. To take a child into care is a
pious deed and is recommended. The restriction in the case of adoption is that the
adoptive family cannot give the child their name. The child will always be associated
with its biological parents. Pakistani law by following Islamic law does not recognize
adoption. Although a form of adoption does take place in practice, in law it does not
create any mutual rights and duties between the adoptive parents and the adopted
children. According to Article 35 of the Constitution of Pakistan 1973 it is a

57
Ibn-al-Humām, Sharh Fath-al-Qadīr, Vol. 6, 104; Ibn Qudāmah, Al-Mughnī, Vol. 6, pp.407-408;
Shalabī, Ahkām-al-Usrah, 712; Jamāl J. Nāsir, Islamic Law of Personal Status, (Graham and
Trotman, 1990), 156.
58
Shalabī, Ahkām-al-Usrah, 712; Nasir, Islamic Law of Personal Status, 168-169.
59
‘Alī Al-Khatīb, Fiqh Al-Tifl: Dirāsah Muqāranah fī Daw’ Al-Madhāhib Fiqhīyah Al-Sab‘ah: Al-
Imāmīyah, Al-Zaidīyah, Al-Hanafīyah, Al-Shāf‘īyah, Al-Mālikīyah, Al-Hanbalīyah, Al-‘Ibādīyah,
(Beirut: Mu’ssasah Al-‘Ārif lil Matbu‘āt, 2002), 146.
60
Hereinafter the CRC or the Convention.
61
Article 21 of the CRC makes express reference to the concept of kafālah as an Islamic alternative
to the western concept of adoption.
62
Welchman, Women and Muslim Family Laws, 118.
63
Kamran Hashemi, Religious Legal Traditions, Muslim States and the Convention on the Rights of
the Child: An Essay on the Relevant UN Documentation, Human Rights Quarterly, Vol. 29 (1),
(Feb., 2007), 219.
49
Pakistan Journal of Islamic Research Vol: 18, Issue: 2

responsibility of the state to protect marriage, family, the mother and the child. The state
should therefore set up institutions for the care of abandoned children and orphans. A
state sponsored system of kafālah should be introduced where the child can be adopted
with agreement of biological parents but will not take the family name or inherit.When
legal adoption is not recognised there must be an institutional set up to support
abandoned children. The United Nations Committee on the Rights of the Child64 has
shown concern that Pakistan does not have an alternative care system for abandoned
children or children without parents. In its reports to the Committee Pakistan has said that
most Pakistanis live with extended families who take care of children who have lost their
parents. The Committee 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 asked Pakistan to make laws to take into consideration the views of the
children in need of care during the procedure. The Committee showed 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.65
5- 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.66 According 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 un-
Islamic and being an Islamic State provisions related to adoption will not be applied in
the case of Pakistan.67
Pakistani courts have frequently stated that adoption is un-Islamic. In Sher
Afzal v Shamim Firdaus the Supreme Court of Pakistan said that ‘… there is no
institution of adoption in Islamic law’.68 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

64
This Committee is a monitoring body which monitors obligations of the states parties to
implement principles of the Convention on the Rights of the Child in all their laws.
65
Consideration of the Reports Submitted by State Parties under Article 44 of the Convention.
th
http://www.refworld.org/topic,50ffbce526e,50ffbce5274,4ae9a11c0,0,CRC,,.html. (accessed 25 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.
th
http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.PAK.4.pdf. (accessed 25 March
2013).
66
David Pearl and Werner Menski, Muslim Family Law, (London: Sweet and Maxwell, 1998), 409.
67
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.
th
http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.PAK.4.pdf. (accessed 25 March
2013). Pakistan’s second periodic report was submitted to the Committee in 2003.
th
http://www.ohchr.org/EN/HRBodies/CRC/Documents/statement/ds-pakistan-2.pdf. (accessed 13
November, 2012).
68
PLD 1980 SC 228; also see Arif Mansoor Ahmed v. Fayyaz Ali, 2000 YLR Lahore, p.2317
50
Adoption of a Child in Islamic and Pakistani Law: Problems of Implementation

legislation over Muhammadan law.69 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.70
Despite legal prohibition adoption is practiced in Pakistan.71 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 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.72
In the Succession Act 1925 an adopted child is not included in the list of legal
heirs. In Mrs. Lillian Sen v. Mrs. Phyllis Merlin Xavier the Karachi High Court
observed that an adopted child is considered neither an heir nor kin so, it cannot inherit
property from its adoptive parents. Adoptive parents and the adopted child have no
mutual rights and duties so none could be judicially enforced.73
In Irfana Shaheen v. Abid Waheed the couple adopted an abandoned child
after informing the police and respectable people in the locality. The couple separated
afterwards. The Lahore High Court awarded custody to the adoptive mother and declared
that no one can interfere with the right of an adoptive mother to custody of the child,
except the biological parents. The Lahore High Court discussed the issue of abandoned
children and said that according to article 35 of the Constitution of Pakistan 1973 it is the
responsibility of the state to protect marriage, family, the mother and the child. The state
should therefore set up institutions for the care of abandoned children and orphans. It is
not only a constitutional but also a religious obligation.74
An adopted child is entitled to maintenance from the adoptive father although it
has no right to inherit from him. In 2010 in Muhammad Aslam v. Shazia Bano the
mother of three minors applied for their maintenance, one of them was an adopted child.
The father argued that he is not obliged to maintain the adopted child although he said
that if the adopted child is given into his custody he is ready to pay maintenance. The
Lahore High Court held that an adopted child is not entitled to inherit from its adopted
parents but it is entitled to maintenance.75
In Pakistan there is no statute declaring adoption illegal but case law tells us
about the approach of the courts according to which adoption is considered illegal. An
adopted child has no rights over its adoptive parents and vice versa. Despite this
prohibition adoption occurs in practice. It is the responsibility of the state to set up

69
M. A. Mannan, D. F. Mulla’s Principles of Muhammadan Law, (Lahore: PLD Publishers, 1991),
p.480
70
1988 SCMR 608.
71
Ali, 2007, 155-156.
72
Ibid.
73
PLD 2003 Karachi, 270.
74
PLD 2002 Lahore, 283.
75
2010 YLR Lahore, 1327.
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Pakistan Journal of Islamic Research Vol: 18, Issue: 2

institutions for the care of abandoned children. 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.When legal adoption is not recognised
there must be an institutional set up to support abandoned children.
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.

76
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.
http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.PAK.4.pdf. (accessed
25th March 2013).

52