Composed By:

Mughees Ali
374-FSL-LLB5Y/S21
Name: Mughees Ali

Reg No: 374 FSL-LLB5Y/S21

Section: L.L.B 6th (C)

Submitted to: Dr. Habibur Rehman

Subject: Family Laws In Pakistan

Topic: Deprivation Of Adopted Child From Inheritance

Outline:

1. Introduction

2. Status of adoption in Islam

3. Adoption in Pakistan

4. Right of Inheritance to Adopted Child

5. Status of gift deed for an adopted child

6. Judgments

7. Conclusion
 Deprivation Of Adopted Child From Inheritance

1. Introduction:

Deprivation:
The damaging lack of material benefits considered to be
basic necessities in a society.
Adoption:
The action or fact of legally taking an-other's child and
bringing it up as one's own, or the fact of being adopted.
Inheritance:
The devolution of property on an heir or heirs upon the
death of the owner.
Summarized:
In the inheritance it would be deprivation of adopted
child from inheritance. Adopted child will not be entitled to the
inheritance from his/her adopted parents.

2. Status of adoption in Islam

 Islam emphasizes the importance of maintaining lineage and blood
ties. The Quran emphasizes the preservation of lineage and prohibits
attributing one's lineage to other than their biological parents. This
principle aims to safeguard individual rights, inheritance, and social
connections by ensuring accurate identification of one's lineage.
In Zayd Bin Haritha Matter Almighty Clearly described
Holy Quran Said:
“And Allah did not make your adopted children your
sons. That is only your words coming out from your
tongues. And Allah says the truth and He guides you
to the right path. Call them with reference to their
(real) fathers. It is more just in the sight of Allah”.

 While the concept of kafala (fostering or guardianship) exists in Islam,

it does not equate to legal adoption as practiced in many other
societies. Kafala involves caring for and providing for a child without
severing their ties with their biological family. It is considered a noble
and virtuous act in Islam but doesn't grant the child the same legal
status as a biological child regarding inheritance or lineage.
i. If the child was two years old or less and was
also breast fed directly by the adoptive mother for
at least a day and a night (or fifteen times
consequently), then the child will become mahram
to the new family.
ii. If the child was not breast fed as mentioned
above. Then he or she will remain non-mahram to
the new family.
iii. Adoption in rizai or non rizai form does not give
the adopted child a right to inherit the estate of the
adoptive parents; nor does it deprive him or her
from inheriting the estate of the real parents.

 Islamic teachings encourage kindness and care for orphaned or

vulnerable children. Prophet Muhammad himself set an example by
fostering and supporting orphaned children, emphasizing the virtue
of caring for those in need. Muslims are encouraged to provide love,
support, and resources for such children, yet without altering their
lineage or inheritance rights.
Almighty says:
“Those who swallow the property of the orphans
unjustly, are actually devouring fire into their
bellies and they shall enter the burning fire”.

 Islam provides guidelines for the treatment of orphaned or needy

children within the framework of guardianship, ensuring their
welfare while respecting their biological lineage and inheritance
rights. This includes ensuring fair treatment, education, and financial
support for the child without erasing their identity or rights.
Fiduciary duties in Islam revolve around the ethical obligation to honor
commitments, manage entrusted affairs with integrity, and act in the
best interests of those who have placed their trust in an individual's care
or responsibility. The principles of honesty, trustworthiness, and
accountability form the cornerstone of fiduciary responsibilities in
Islamic ethics.

Views By Different Scholars:

The status of adoption of a child varies across different jurisdictions and
among Islamic scholars due to differing interpretations of Islamic law
(Sharia) and legal frameworks in various countries. Adoption in Islam, as
commonly understood in Western societies where a child's filiation is
entirely transferred from biological parents to adoptive parents, is not
permissible according to mainstream Islamic jurisprudence.

However, there are different perspectives and practices concerning the

care and upbringing of orphaned or abandoned children within Islamic
guidelines:
1. Kafala:
Many Muslim-majority countries recognize a form of
guardianship known as "kafala" or "kafalah." Kafala involves assuming
responsibility for the upbringing, care, and well-being of an orphan or a
child in need without altering the child's lineage or inheritance rights.
Unlike adoption, kafala maintains the child's biological identity and
rights, emphasizing care and support while preserving the child's ties to
their biological family.
2. Legal Adoption with Conditions:
Some scholars and jurisdictions have
considered forms of adoption or fostering that align with Islamic
principles, provided certain conditions are met. This might involve
allowing the child to be raised by adoptive parents while retaining
knowledge of their biological lineage and inheritance rights.
3. Diverse Views among Scholars:
There are diverse opinions among
Islamic scholars regarding the permissibility and implications of adoption.
Some scholars hold a strict view that adoption, as practiced in Western
contexts, conflicts with Islamic principles of lineage and inheritance and
therefore is not permissible. Others have more flexible views, advocating
for forms of care and upbringing that safeguard the child's rights and
well-being within Islamic guidelines.
4. Local Legal Frameworks:
The legal status of adoption or guardianship
for orphaned or abandoned children can vary based on the laws and
regulations of each country. Some countries may have specific
provisions for adoption that might differ from traditional Islamic views
but are structured to ensure the welfare of the child.
3. Adoption in Pakistan:
In Pakistan, adoption is a complex and evolving
matter influenced by various factors, including Islamic principles, cultural
norms, and legal frameworks. The country's legal system is primarily
influenced by Islamic law (Sharia) alongside statutory laws.
According to Islamic principles commonly observed in Pakistan, the
traditional concept of adoption as understood in Western societies—
wherein a child's filiation is entirely transferred from biological parents
to adoptive parents—is not permissible. Islam emphasizes the
preservation of lineage and inheritance rights, which conflicts with the
complete transfer of filiation.
Instead, Pakistan, like many other Muslim-majority countries, follows
the practice of kafala or guardianship. Kafala allows for the care,
upbringing, and support of orphaned or abandoned children without
severing their ties to their biological lineage and inheritance rights.
Under kafala, the child remains aware of their biological parentage and
retains their original family name.
Legally, Pakistan does not have a specific comprehensive adoption law
that aligns with Western adoption practices. However, there are
provisions within the statutory laws that address guardianship (kafala)
and fostering. Guardianship allows individuals or families to take
responsibility for a child's upbringing and welfare while maintaining the
child's ties to their biological family.
It's important to note that practices concerning orphan care and child
welfare might vary across regions within Pakistan due to cultural
differences and interpretations of Islamic principles. While there might
not be a structured adoption law in the Western sense, efforts are being
made to ensure the welfare of orphaned or vulnerable children through
guardianship and alternative care systems, adhering to both legal and
cultural considerations.
4. Right of Inheritance to Adopted Child :

In Pakistan, Islamic law and cultural norms strongly influence the

approach to adoption. Islamic principles prohibit conventional adoption
where a child's filiation is completely transferred from biological parents
to adoptive parents. Instead, Islamic tradition acknowledges "kafala,"
which is similar to fostering or guardianship. Under kafala, individuals or
families take responsibility for the care, upbringing, and welfare of
orphaned or abandoned children without altering their lineage or
inheritance rights.

Key points regarding the rights of an adopted child in Pakistan according

to Islamic law and cultural practices are:

1. Non-inheritance:
 Adopted children do not have inheritance rights
within the adoptive family. They cannot inherit from their adoptive
parents, and the adoptive parents cannot inherit from the adopted child.
2. Marriage to Foster Siblings:
Adopted children retain the status of 'Na-
Mehram' within the foster family, meaning they can marry their foster
siblings.
3. Inheritance from Biological Parents:
Adopted children maintain
inheritance rights from their biological parents, and these rights remain
intact even after adoption.
4. Legal Provisions:
Pakistan's legal system, based on Shariah, does not
recognize adoption in the conventional Western sense. Instead, it
permits guardianship under the Guardians and Wards Act of 1890,
allowing individuals to take legal responsibility for a child's welfare
without altering their lineage.
5. Kafala and Alternative Care:
'Kafala' functions as an alternative care
arrangement, where a child's care is undertaken without erasing their
biological identity or rights. This practice is encouraged in Islam and
ensures the welfare of orphaned or abandoned children.
6. Limited Inheritance Rights through Will:
While adopted children
cannot inherit from their adoptive parents, the adoptive parents have
the option to bequeath one-third of their estate to the adopted child
through a will.
Adopted children in Pakistan,
under Islamic law and prevailing cultural
practices, do not inherit from their adoptive parents. Instead, they
maintain inheritance rights from their biological parents, emphasizing
the significance of biological lineage and preserving family connections
in Islamic traditions.
5.Status of gift deed for an adopted child:
In Islam and specifically in Pakistan, the status of gift deeds for adopted
children involves adherence to Shariah principles and local legal
regulations. Shariah, the Islamic law, does not grant adopted children
the same inheritance rights as biological children within the adoptive
family. However, it allows for the provision of gifts and financial support
to adopted children during the lifetime of the adoptive parents.
Regarding the status of gift deeds for adopted children in Islam and
Pakistan:
1. Inheritance Rights:
According to Islamic law, adopted children do not
inherit from their adoptive parents. Shariah specifies inheritance shares
for biological heirs, and adopted children are not considered as direct
heirs under these laws.

2. Gifting during Lifetime:

Adoptive parents have the right to gift assets,
property, or wealth to their adopted children while they are alive. This
gifting process can be formalized through a gift deed, a legal document
that explicitly outlines the transfer of ownership from the giver
(adoptive parent) to the recipient (adopted child).

3. Gift Limitations:
Islamic teachings advise that the amount or value of
the gift should be within reasonable limits and not exceed the capacity
of the giver. Shariah suggests that the maximum limit for gifting during
one's lifetime is one-third of the total estate, ensuring that rightful heirs
are not unfairly disinherited.

4. Intention and Documentation:

For a gift deed to be valid in Islam and
Pakistan, it should be executed with clear intention and proper
documentation. The deed should specify the assets being gifted and
must be witnessed and documented according to legal requirements.

5. Equitable Distribution:
While adoptive parents can gift assets to their
adopted children, Shariah emphasizes fairness and equitable distribution
of wealth among all heirs. It is crucial to ensure that gifting does not
unfairly favor one child over others who are entitled to inheritance.

6. Legal Compliance:
The execution of gift deeds in Pakistan should
comply with local legal regulations in addition to Islamic law. Seeking
advice from Islamic scholars well-versed in Shariah principles and legal
experts familiar with Pakistan's legal system is recommended to ensure
compliance with both religious and legal requirements.
6.Judgments:
No. 1

Parties: Mariam Bibi Vs Naseer

Ahmed & 2 others

Case No: Writ Petition No.4291 of 2010

Date of hearing: 01.10.2014
Petitioner by: Mr. Muhammad Idrees Khan Advocate
Respondent by: Nemo.
Judge: SHEZADA MAZHAR
Nature:
This petition under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973

Facts:
The case revolves around a petition filed under Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973, stemming from a
suit for the recovery of maintenance allowance dismissed by the learned
Additional District Judge, Shakargarh, on 31.10.2008.

The petitioner's claim for maintenance allowance was initially granted by

the Judge Family Court, Shakargarh, at the rate of Rs. 800/- per month
with a 5% annual increase from the institution of the suit until the
petitioner's marriage. The court also acknowledged that although the
petitioner wasn't the biological daughter of respondent No. 1, he was
bound by an agreement of adoption.

However, on appeal, the Additional District Judge dismissed the

petitioner's suit, contending that since the petitioner wasn't the real
daughter of respondent No. 1 and due to the non-recognition of
adoption in Islam, the claim was not valid.

Key Points:

1. The judgment of dismissal was challenged through a writ petition,

despite being filed after a significant time lapse, invoking the importance
of examining the merits of each party's claim before considering
technical grounds such as laches.
2. The court delved into Islamic principles regarding adoption, citing the
example of Prophet Muhammad's relationship with Zayd Bin Haritha,
highlighting that adoption doesn't alter blood relations and does not
create legal ties between the adopted child and adoptive parents.
Adoption also doesn't impact inheritance laws in Islam.

3.The court emphasized that while adoption might not confer

inheritance rights, it does create a fiduciary obligation on the part of the
adoptive parents, especially if they have publicly acknowledged and
assumed responsibility for the child's welfare.

5. Gandhi states that “A fiduciary is a person in a position of trust, or

occupying a position of power and confidence with respect to another
such that he is obliged by various rules of law to act solely in the interest
of the other, whose rights he has to protect…

Conclusion:

1.The court concluded that while Islamic law doesn't grant the adopted
child inheritance rights, the adoptive parents assume a fiduciary duty
towards the child when publicly adopting and caring for them. This duty
includes the responsibility to provide maintenance for the child.

2.The judgment of the appellate court was set aside, reinstating the
decision of the Family Court, which allowed the petitioner's claim for
maintenance allowance, it was based on the fiduciary relationshipand
guardianship trust.

Personal Opinion:
The ruling presented in this case highlights an interpretation of Islamic
law concerning adoption and its implications on rights and obligations,
particularly in the context of maintenance allowance for an adopted
child. The court's decision to reinstate the petitioner's claim for
maintenance allowance based on the fiduciary relationship and
guardianship trust appears to align with principles of equity and fairness
within the Islamic legal framework.

My Opinion:
1. Recognition of Fiduciary Obligation:
The court's recognition of a
fiduciary duty assumed by adoptive parents, even in the absence of
formal inheritance rights for adopted children in Islamic law, is
commendable. It acknowledges the moral and ethical responsibility
undertaken by adoptive parents when publicly adopting and caring for a
child.

2. Emphasis on Welfare of the Child:

By reinstating the petitioner's claim
for maintenance allowance, the court prioritizes the welfare and well-
being of the adopted child. This decision ensures that the child is not left
without support solely due to the absence of formal inheritance rights,
emphasizing the care taking obligation of the adoptive parents.

3. Application of Fiduciary Relationship:

Drawing upon the concept of
fiduciary relationships from legal principles articulated by Gandhi, the
court interprets the adoptive parents' duty as akin to a position of trust
and confidence towards the adopted child. This interpretation signifies
the importance of protecting the rights and interests of the child within
the context of Islamic family law.

4. Equity and Fairness:

The ruling demonstrates an equitable approach
by not solely relying on the strict interpretation of Islamic inheritance
laws. Instead, it considers the broader implications of adoption,
acknowledging the practical and moral responsibilities assumed by
adoptive parents towards the welfare of the child.
In short, the court's decision reflects a balanced and compassionate
interpretation of Islamic law, emphasizing the ethical obligations of
adoptive parents toward the welfare of the adopted child. It upholds the
spirit of guardianship and caretaking responsibility while acknowledging
the limitations within Islamic inheritance laws. This ruling emphasizes
the importance of considering the best interests of the child within the
framework of Islamic principles, ensuring their care and support despite
the absence of formal inheritance rights.

Judgement
No: 2
Civil Petition No. 659 of 2019
(Against the judgment dated 10.01.2019 of
the Lahore High Court, Rawalpindi Bench
passed in C.R.No.532-D/2012)

Atta Mohammad and others. … Petitioners

Versus

Mst. Munir Sultan (deceased) through

her L.Rs and others. … Respondents

For the Petitioners:

Mr. Muhammad Siddique Awan, ASC.
Syed Rifaqat Hussain Shah, AOR.

For the Respondents: Not represented.

Date of Hearing: 10.12.2020

Facts:
 The case involves a dispute over inheritance according to Shariah law.
Mst. Munir Sultan, daughter of Fateh Khan, contested three gift
mutations that supposedly transferred her father's land to his
second wife and her sons (petitioners). She challenged these gifts,
claiming her rightful inheritance.
 The petitioner’s counsel argued that the gifts were valid, presenting
copies of gift mutations and the daily diary register as evidence.
However, Fateh Khan, in his nineties and in poor health at the time
of his death, didn't sign or thumb-impress these documents. The
specifics of the gifts weren’t mentioned in the documents or the
petitioners’ written statement.

 Only one of the donees testified, failing to provide critical details

about the gifts’ execution, acceptance, or possession. The court
found the purported gifts questionable, given Fateh Khan's age,
health, and the exclusion of his five daughters from inheritance.

The court dismissed the argument that possession of the land by the
petitioners confirmed the gifts. It criticized the petitioners for
disregarding court orders and expected them to abide by legal decrees.
Concluding Remarks:

 The court refused leave to appeal, finding the burden of proof unmet
by the petitioners regarding the alleged gifts. It condemned attempts
to deprive rightful heirs of their inheritance, emphasizing Shariah’s
principles of inheritance equality, especially for vulnerable
individuals like widows and orphans.
 The judgment underscores constitutional protections ensuring
property rights, especially for women and children, highlighting the
responsibility of state organs to address cases of inheritance
deprivation promptly.
 The court highlighted the revenue department’s lapses, calling for
improved record-keeping and stricter adherence to legal procedures
to safeguard property rights. It urged concerned authorities to rectify
shortcomings in departmental functionality to prevent fraudulent
entries in revenue records, emphasizing the sanctity of inheritance
rights in Shariah and law.

My Opinion:
 The court's decision rightfully upholds the principles of Shariah law
and inheritance equality by refusing to recognize the contested gift
mutations due to lack of proper evidence. The burden of proof
wasn't met, and the documents presented lacked essential details,
making the gifts questionable, especially given the circumstances
surrounding Fateh Khan's health and age.

 The judgment emphasizes the imperative to protect inheritance

rights, particularly for vulnerable heirs like widows and orphans,
aligning with constitutional safeguards for property rights, especially
for women and children. Additionally, it highlights the need for
stricter adherence to legal procedures and improved record-keeping
by revenue departments to prevent fraudulent entries and uphold
the sanctity of inheritance rights as per Shariah and law.
5. Conclusion:
In the legal context of adoption within Islamic principles, recognized in
Pakistan through guardianship (kafala), inheritance rights for adopted
children are not granted in the conventional sense. Shariah principles
and prevailing cultural norms emphasize the preservation of biological
lineage, limiting inheritance rights for adopted children within the
adoptive family. In a recent case, the court reiterated the absence of
proof in contested gift mutations, underscoring Shariah's emphasis on
inheritance equality, especially for vulnerable individuals. The ruling
underscores the duty of state entities to promptly address cases of
inheritance deprivation while urging improved procedural adherence
and record-keeping to safeguard property rights in alignment with
Shariah and constitutional principles.