Rights Of Abandoned Children: A

Comparative Analysis Of Islamic Principles

And Pakistani Legal Framework In
Accordance With The Concepts Of Siyasa Al
Shariah.

Under supervision of:

Dr Hafiz Muhammad Siddiq

Prepared by:
ADV. ABDUL REHMAN
Abdulrehman.llmij67@student.iiu.edu.pk
67-FSL/LLMIJ/F23

LLM SHARIAH (islamic law and juresprudence)

Faculty of Shariah and Law
International Islamic University, Islamabad
 Abstract
Sanctity of human life is of utmost importance in each and every ideology around
the world. Moreover, children are a source of joy and , infect are the actual rays of
sunshine that enlighten one’s life .every ideology that’s provide certain way of life,
ensures the prosperity and welfare of all forms of human life. But sometimes there
become a class of children that were left behind by their parents and they were on
the mercy of this society .there are different forms of this abandonments of
children in the society that requires society’s attention.
For instance; In case where after the separation , nether the father nor the mother
wants the custody of the minor ,right after the birth that unwanted child that was
thrown away or due to poverty or other reasons if the minor faces abandonment,
What would be the future of that child? , who secures the welfare of this little
being? , what is the narrative of shariah and contemporary prevailing Pakistani law
regarding this category of children.
This problem of abandoned children is a rising issue in communities around the
globe, it holds importance in both Islamic and Pakistani legal systems. This
comparative analysis examines the ways in which Pakistani law incorporates
Islamic ideas to safeguard the rights of abandoned children and It also discusses
the challenges and gaps in the implementation of these laws, such as issues related
to guardianship, inheritance, and the need for improved welfare infrastructure.
Keywords: Islamic law, Pakistani law, abandoned child, unwanted child, rights.

INTRODUCTON:

Human beings, the intelligent creation of ALLAH swt, without any debate, are the
major stake holders of this universe among others. The system of this world
revolves around them and INFACT; according to the beliefs of the majority,
human beings holds the status of lord’s khalifa/representative/successor. And
children are the basic, initial and delicate class/stage that shapes and regulate or
more clearly we could say that predict the future of the mankind and subsequently
of the world along with all relating matters/systems.
If we have a look to the fact sheet, it reminds us that world bears the weight of 8
billion out of which 27% are children and if we narrow it down and focus on our
subject i.e Pakistan. Pakistan has an estimated population of 212 million; 45% are
children and 22.7 per cent are adolescents aged 10–19 years 1.
Children make up a large portion of the population in Pakistan, and the rights of
abandoned, parentless, unwanted, disowned and without guardian children are
becoming a severe problem in the absence of adequate legal and administrative
frameworks.
Islamic republic of Pakistan , as clearly described by the name , is an Islamic
country having islam as its systematic foundation and so its state religion ,and also
being a member of United Nations and its subordinate body regarding children ,
UNICEF and is a party to many international covenants including the Convention
on Rights of Child 1989 (hereinafter CRC).
So far Child rights in Pakistan are dispersed in various laws including the
constitution. There are various sort of problems regarding the topic of this paper
for instance; The status of an adopted, abandoned, parentless, unwanted, disowned
and without guardian kid is a serious problem since there is no legislation that
governs adoption and its legal ramifications. Some contend that the Guardians and
Wards Act of 1890 is sufficient, but guardianship cannot be equated with
"adoption" because, unlike adoption, its duties stop when the ward reaches the age
of majority. Moreover, Pakistan is still not in compliance with Article 4 and 7 of
the CRC which requires a comprehensive child protection legislation in the
domestic sphere of each state party and to make child birth registration mandatory
and acknowledges that every child has a right to a name and nationality and to
know and be cared for by parents.
However NADRA ,The National Database Registration Authority, that keeps the
record of registration shows inefficacy and inefficiency of the system. The
shortcomings of the legislation creates problems for not only the abandoned and
orphaned children but is causing complications, legal and psychological, for those
children as well who were legally adopted.
There is literature about the status of abandoned children in Islamic law. This topic
has been widely debated by Islamic scholars. Numerous translations of the Quran,
the Sunnah, and a large body of Islamic literature all include unambiguous
instructions.
The purpose of this comparative study paper is to evaluate the problems
experienced by abandoned, parentless, and disowned children in Pakistan, as well
as the state's and Islamic law's protective measures. The pertinent legislation, case
law, and legal provisions have been addressed and analysed. The findings will be
summed up in the conclusion.

The basic way forward or we can say the style of analysis is observed step by step
as;
 Where we want to go? / Destination / ideal state.

Where we are standing? / Current situation .

How we will reach there? / necessary measures.

Assigning of roles / distribution of tasks to the

correspondents.

Review/ analysis / conclusion.

Abandoned Children:

In this research article we will be using this term “ABANDONED ” as an umbrella

term that includes abandoned , parentless , unwanted, disowned and without
guardian children .those words or terminologies are generally used for children
whose whereabouts are not known or who are not taken care of by their families.
Case
study abandoned children in the context of Pakistan could not be found, but it can
be speculated that the majority of these children are born outside of marriage; likel
y, some are abandoned for economic reasons or are unwanted due to the lack of a
male child.
Sometimes, family pressure forces a single woman to give up her kid in order to be
acceptable for a future marriage.
The death of parents and other close relatives is another way that natural disasters l
ike epidemics, earthquakes, conflict, and floods contribute to the issue of abandone
d or neglected children.Street children, children in labour, and runaway youngsters
are all included under the phrase "abandoned children."
Lets have a look and understand some important terminologies we are covering in
this research article from concerned perspective;

a- Abandoned child: the word simply means a kid having been deserted or
left behind. But there are various angles to look at. firstly the child that was
 thrown away by his/her parents due to any sort of issues, mainly in Pakistan
due to poverty or if the child is a result of illicit or immoral relationship .in
some cases that we came across in the legal profession that after parents got
separated and parted their ways legally and after that neither the father nor
the mother wants to get the custody of the minor as it affects their further
marital life.
b- Parentless child: the child with no living parents is said to be parentless
or simply coined as orphan. The future of these kids are mostly at stake
because there is always uncertainty regarding their affairs.
c- Unwanted child: this term is not directly related to the other
terminologies that we are discussing yet it hold up importance that we could
not unseen it. Sometimes the minor faces any medical condition or due to
issues between the spouses the minor could not receives the love and
affection that he deserved.
d- Disowned child: in the case where the father denies to own the new born
as if the minor is not her biological child , so in this case the welfare of child
is at stake and there is probability that the kid could left behind in the
society.
e- Without guardian child: if the minor has no identity or in any other
manner he has no clue of any affiliation to any person or in a case that all of
his/her family member due to any reason disappeared .simply if there is no
clue of identity of them.

QUESTION BEFORE US:

a- Problem faced by these class of children?

b- Status of these class of children in Islamic law ( ‫ ( شریعہ‬and Pakistani legal
framework?
c- Who is responsible for the welfare of these children?
d- What is the perspective of Islamic law/shariah regarding this issue?
e- How Pakistani legal framework is dealing with this?
f- Measures to be taken for the betterment.
g- What is the future of these classes of children?

Problems faced by these class of children:

There is a pressing need for the government to take action by providing necessary
assistance as well as compiling and maintaining statistics on runaway and
abandoned children. Although a specific study of abandoned child cases in
Pakistan could not be located, it can be assumed that the majority of these children
were born outside of marriage; some were likely abandoned for financial reasons
or because there was a shortage of male children. A single woman may abandon
her kid under duress from her family in order to be approved for a future marriage.
The death of parents or other close relatives is another way that natural disasters
like epidemics, earthquakes, conflict, and floods contribute to the issue of
abandoned or neglected children.
To children belonging to this class, the world is a tunnel of grave inconvenience
and a story that includes terrain of never ending hardships and hurdles, all the way
from the beginning of their life till the death. They remain un-attended when they
need a title or more clearly we could say guardian and that where the problems
begun. Street children, children in labour, and runaway youngsters are all included
under the phrase "abandoned children."A instance from recent history is
particularly ominous and gives insight into the horrifying lengths to which this
specific form of exploitation might go. Although Javed Iqbal was convicted and
jailed for horrifyingly abusing and murdering many children in 1999 with the help
of three other individuals, there is no proof that the state has taken any action to
prevent a repeat of this atrocious crime.

Status of Abandoned Children in Islamic Law:

A kid abandoned by its parents is referred to as a foundling in Islamic law.

Hanafis believe that it holds the status of WAJIB and the responsibility of the
person who finds such a kid to take care of it if there is a risk to the child's life and
It is mandub, if there is no danger to its life. All schools agree that caring for a
foundling is the responsibility of the community as a whole, unless there is a risk
of the child's death, in which case it is the finder's personal responsibility. The
individual who discovers a foundling should also serve as the child's guardian and
defend its interests. The court wSill make the decision in guardianship disputes,
although generally speaking, Muslims are preferred over non-Muslims. If
someone asserts paternity of a foundling in the belief that it is his kid, the
legitimacy of the child is established so long as the requirements of a legitimate
acknowledgement are met.
The child will be regarded as a Muslim , established by all schools of thoughts, if it
is discovered in a Muslim neighbourhood. The kid will be taken to belong to the
same religion as that practised in the area where it is found. The upkeep of the
foundling is the duty of the bait-al-ml (public funds), however if the guardian
spends money on the foundling, this money can be repaid from public funds or
from the foundling when he or she reaches adulthood. If every one of the
aforementioned requirements is met, the paternity of such a foundling may be
recognised.

To the extent of PATERNITY there are 3 major opinions;

1-According to the Shāf‘ī and hanafi school ; in the case where there is only
one claimant of paternity of the foundling then there is no need for any sort of
evidence or physiognomy to establish the paternity. Being a Muslim is not a
condition according to them in this case.

2- According to the Mālikī school ; 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.

3- The Hanbalīs holds 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.
We could generally say that Rules of Islamic law related to foundlings protect
children irrespective of their status of legitimacy.

Status of Abandoned Children in Pakistani legal framework:

Pakistan, whose official state religion is Islam, considered to be controlled by
Islamic laws, and as a result, the Shariah's rules and principles apply to the rights
and duties of its citizens.
We will discuss different aspects and laws regarding Pakistani legal framework:
As we discussed earlier ,Pakistan has duties under international law and is a party
to international agreements like the Convention on the Rights of the Child (CRC).
The CRC's pertinent provisions are listed below.

Article 7 of the CRC states that;

“The child shall be registered immediately after birth and has the
right to a name and nationality and to know and be cared for by his
or her parents”.
Likewise Article 19 accommodates commitment on part state to take fitting
lawful, authoritative, instructive and social measure to shield kids from all kind of
double-dealings whether in care of guardians or watchmen.

Article 2 gives that a kid who is for a brief time or for all time denied of his/her
family climate is qualified for extraordinary insurance and help given by the State.
States Gatherings will as per their public regulations guarantee elective
consideration for such a youngster could incorporate encourage position, kafalah of
Islamic regulation, reception or vital situation in reasonable establishments for the
consideration of kids. While considering arrangements, due respect will be paid to
the attractiveness of congruity in a kid's childhood and to the youngster's ethnic,
strict, social and semantic foundation.
The point why we refer to CRC is that ,the main global instrument which specifies
Islamic regulation is CRC.

In Article 20 kafālah is referenced as an establishment to really focus on

youngsters denied of their families. This Article specifies kafālah with reception
and encourage position. Youngsters under kafālah don't take the name of the
assenting family yet they have privileges to mind, upkeep and schooling. Such a
kid won't acquire from the supportive family.

Article 21 is about reception and doesn't make a difference to Muslim nations

who consider reception unlawful as Article 20 expressly specifies kafālah as an
Islamic option in contrast to reception.
As well as the law pertaining to the guardianship and regulating the custody of
children in Pakistan is known as the Guardians and Wards Act, 1890.
The primary consideration in guardian courts whilst granting custody of minors to
either parent or sometimes to grandparents or other relatives is the welfare of the
.minor
The said regulation is the primary method of accomplishing authority of minor. In
a guardian / custody continuing forthcoming settlement in a family/watchman
court there are three gatherings to the said procedures, the Custodial Parent, the
Non-Custodial Parent and the Minor.
The division of this code is partitioned into four sections.
The primary Part (chapters 1-4 A) manages specific fundamental matters, for
example, title, degree and beginning, investment funds, definitions, powers to
present purview on subordinate legal officials and to move procedures to such
officials.
Part 2 (chapters 5-19) manages the arrangement and announcement of guardian.
Countless inquiries have emerged regarding specific arrangements contained in
this Section, especially, sections 7, 17 and 19. chapter 5 which managed
guardianship by will or other instrument on account of European English subjects
has been revoked. The ability to choose a guardian in different cases is saved by
chapter 6 now which applies to all people.
section 7 is the usable arrangement in the chapter, with the force of the Court to
delegate the guardian of the individual or property or both.

Sections 8-16 for the most part manage procedural or other minor matters.

section 17 is vital. It relates to the issues to be viewed as by the courts in

delegating a guardian.

Section 18 provides that a collector, if appointed or declared a guardian, is so

appointed by the virtue of his office to be the guardian of the person or property or
both.
Section 19 prohibits the appointment of a guardian in certain cases. Although
negative in form, this section has given rise to a number of problems in
interpretation and to the question of the inter relationship between section 17 &
section 19.

Sections 20-23 deals with matters of a general character, such as the fiduciary
relationship of guardian to his ward, the capacity of minors to act as guardians, the
enumeration of guardians and control of the Collector when he is appointed as a
Guardian.

Guardian of the person is dealt in sections 24-26, of which the most important is
section 25 dealing with the restoration of the custody of the Ward to the Guardian.
This is the section most frequently resorted to in practice, and as expected, case
law on this section is prolific.

Guardianship of the property is the subject matter of sections 27-37.

With sections 38-42, the Act again reverts to matters of general character, namely,
rights of supervisor ship amongst joint guardians, removal of guardian, discharge
of a guardian, cessation of authority of the guardian and appointment of a
successor to a guardian who is dead, discharged or removed.

These operative provisions of the Act are supplemented by Chapter 4 (sections 43-
51), which are primarily concerned with matters in the nature of enforcement,
appeal, cost, rules and other topics of miscellaneous or residuary Chapter.
In this regard , all we could say is Pakistan, a dualistic state, has not introduced
comprehensive federal law to incorporate provisions of the CRC. Despite
international human rights protection standards, Pakistan is primarily a provincial
legislative subject, with child protection legislation varying depending on cultural
practices and political situations in each province. Efforts to legislate on children's
rights are pending in parliament.
Pakistan's National Child Protection legislation includes provisions for children,
such as prohibition of slavery and forced labor, free education, and special
protection for women and children.

For the province of Khyber Pakhtunkhwah ; In 2010, the Khyber

Pakhtunkhwah Child Protection and Welfare Act was promulgated.

In 2004, Government of Punjab promulgated The Punjab Destitute

and Neglected Children Act, and later revised it in 2007.

Sindh has also enacted the Sindh Child Protection Authority Act 2011, and
Sindh Child Marriage Restraint Act 2013.

The Balochistan Child Welfare and Protection Bill is pending in Provincial

Assembly. Legislations in provinces to some extent are done but implementation is
way beyond then required.
 Pakistan lacks a consolidated Child Rights Act, but scattered provisions are found
in genral Acts and thematic codes. The Committee on Right of the Child
appreciates legal efforts. Despite efforts by governmental and non-governmental
organizations, Pakistan's situation on abandoned children remains unresolved.
Clear legislation is needed to ensure rights and protection, channel
adoption/kafalah solutions, and raise awareness about abandoned children's rights .

Acknowledgement of an Abandoned Child:

Parentage, or nasab, is a crucial right for minors, influencing other rights like
inheritance, maintenance, and guardianship, and directly related to legitimacy
status. A child born during a valid marriage is considered legitimate, and its rights
include ;
1- Maternity
2- Paternity
Legitimacy can be established through evidence or acknowledgement of the
father. Acknowledgement of paternity is acceptable even on a person's
deathbed, but conditions must be met for it to be accepted. The child must be
unknown, at least 12 years and six months younger than the acknowledger, and
have attained puberty. If the child is a minor 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. If all conditions are met, the
acknowledgement of paternity is considered true and can be refuted by contrary
evidence. The same conditions apply if a mother acknowledges her maternity,
and acknowledgement must be confirmed by her husband. If the father is dead
or absent, the child may claim paternity, and the same conditions apply.
Adoption was a prevalent practice in pre-Islamic Arabia, treating adopted sons
as natural sons and prohibiting marriage. Islamic law determines adoption status
through Surah Al-Ahzāb verses.
‘Allah has not made for any man two hearts in his (one) body: nor has he
made your wives whom ye divorce by Zihār44 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.’45 ‘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).’

And in ayah 37;

‘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 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.’
The above mentioned Qur'ānic verses concerning Zaid ibn Hārithah, the Prophet's
adopted son, and Zainab Bint Jahsh ,his cousin. The verses clarified that adoption
does not create marriage prohibition and adopted children are not considered
natural children. Zaid's biological father, Hārithah, was named after him. The
revelation abolished the custom of adoption, and most scholars believe in legal
adoption. However, some believe it is mubāh, and in Muslim countries, the
institution of adoption does not exist.
The point I want to clarify here specifically is that Adoption is a legal process that
involves adopting a child from another person, not the biological father. It is
considered a pious deed to look after an orphan or be their guardian, but it is
prohibited to change the parent's names or lineage. The Qur'ān calls the child "your
brother in faith." The institution of kafālah provides a mechanism to care for
abandoned children, with adoptive parents having the right to give the child up to
one third of their property through a will. If an illegitimate child is adopted, it will
be associated with its biological mother and inherit from her. Islam calls for a
society based on truth and justice, as treating adopted children as natural children
would result in a loss of inheritance for legal heirs.

Conclusions and recommendations:

As we know as an established fact that children are the future of any society.hence
by this research work we came to the conclusion that and emphasizes the need for
comprehensive legislation to protect the rights of children, irrespective of birth,
race, religion, and social status. Pakistan has committed to adopting such measures
under the divine ISLAMIC LAW and as well as UNCRC, but it needs to be
reflected in national laws. The birth registration system is a crucial step towards
establishing child rights. Institutionalized adoption, as per Islamic practice, is
necessary for protecting abandoned children. A balanced approach between
international and religious obligations and local social attitudes towards child
protection is needed. Penalties for child protection need strict implementation, and
outdated punishments and fines should be revised. DNA testing should be used for
investigation. Compulsory education and penal action for non-compliance can help
reduce the number of children on the streets. The government should establish
funds to help families keep children, such as the Benazir Income Support Fund
(BISP). Clear legislation is needed to ensure the rights and protection of abandoned
children.
 References:
personal responsibility.

1- https://www.unicef.org/media/102551/file/Pakistan-2020-
COAR.pdf
2- https://www.researchgate.net/deref/http%3A%2F
%2Fwww.pakistanadoption.com%2Fadoptionfacts.htm%23top?
_tp=eyJjb250ZXh0Ijp7ImZpcnN0UGFnZSI6InB1YmxpY2F0aW9
uIiwicGFnZSI6InB1YmxpY2F0aW9uIn19
3- https://tribune.com.pk/article/2107/invisible-citizens-recognising-
pakistan%E2%80%99s-adopted-children/
4- https://www.dictionary.com/browse/parentless
5- https://www.dawn.com/news/1100655
6- https://www.unicef.org/media/102551/file/Pakistan-2020-
COAR.pdf
7- https://www.researchgate.net/publication/
339601389_What_We_Owe_To_Abandoned_Children
8- Surah AHZAB
9- WIKIPEDIA
10- CONSTITUTION OF PAKISTAN 1973
- ARTICLES 8-28