Adoption law is need of the hour
K M Rasheduzzaman Raja
In the old part of Dhaka city an elderly woman was killed by her nephew. The cause of the murder as the perpetrator disclosed before media was that he could not bear the delay of getting the property of the victim as her only heir. To expedite his inheritance he hired a professional killer to commit the grisly homicide. A human being having filial feelings generally would not have done so. It could have been otherwise had she had a child who should have taken care of her in her last days as the other children do in our society in the case of their parents. It is the common craving of human beings that they would die peacefully being assured of that h/she is leaving behind some one who will mourn his/her death and maintain or flourish the property which h/she earned by hard work. Perhaps keeping this phenomenon of human relations in mind the concept of the law of adoption has developed.
Causes for enactment of the law
In our country the number of rich people has increased in a great degree. Many of them have no issue. It will amount to denial of the truth if any one says that he/she is free from such phenomenon as I have mentioned earlier. The non-Muslims may have no problem in coming out of such issueless situation as the provision of adoption is existed in the personal law. But there is no such provision in the personal law of Muslims, the majority people of the country. The Muslim Law bears the provisions of fostered son/daughter who is unable to inherit the property of his/her foster father. So, the fostered son/daughter returns to his/her original state of living condition if the foster father fails to make a suitable wasiat (will) or hiba in his/her favour in time. On the other hand, in the Hindu Law which also governs the many other minorities of our country, the adopted children inherit the property of the adaptor as the natural one.
It is reported from the facts of a lower court case that an expatriate woman came to visit her town of his country and came to know from her relatives in the town that a pregnant mother got admitted into a local clinic but fled the clinic after the delivery of a son keeping the new born unattended. The expatriate woman who was cherishing for motherhood for long time expressed her desire to her relatives to adopt the baby and took him with her to her migrated country. Accordingly she filed a petition before the Family Court only to be surprised to know that the law can only provide her with guardianship of the child on consideration of her legal capacity not let it be adopted on consideration of her parental affection.
Apart from the temporal view the humanitarian aspect is also important to enact the law of adoption in our personal law. Many unattended child can get a cosy lap of the caring parents in the process of adoption and become a valuable member of our society being properly educated. Since we have no provision of adoption in our personal law, therefore, a secular municipal law can be enacted to accommodate the heavenly parental desire of the Muslim community. The Family Court is there to administer such provision of law if it is adorned with such jurisdiction--
- To satiate the parental thirst;
- To give the feelings of security at the tail end of the life of an opulent person;
- To ensure the shelter of the unattended/unclaimed baby;
I think it is a point to be pondered upon by our legislature to enact the Muslim Adoption Act or any thing like that.
Contents of law
The Act may contain, among others, the following features--
* The adopted child shall be treated as the natural one in matters of inheritance;
* The law of marriage and the provision of prohibited degree of the personal law shall be applicable in the person of the adopted child;
* The killer/abetter of killing of the adopted child shall be excluded from inheritance.
Consistent with the Muslim law
Question may arise from some quarter as to whether the law of adoption will contradict the provisions of Muslim law. The answer is "no". The argument in favour of contradiction may be that by such law the inheritor-in-waiting shall be deprived. This argument has no leg to stand as the would-be adopter can easily deprive such inheritor-in-waiting by disposing of his property by way of Hiba, Wasiat or Waqf at his choice. Since the provision of alienation of property causing deprivation of the inheritor-in-waiting and taking fostered son is there in the Muslim Law then what harm would happen if a person chooses to preserve his private property in his own identity by adopting a child.
Private property based individualism has reached the culmination in the modern time. Wealthy industrialist, business tycoon or financially solvent persons having no issues or issue of any specific sex are not rare around us. At a certain age they may become tired and cast a vacant look upon their heard-work-earned huge property and cast a deep sigh thinking that who will maintain their empire of wealth in their absence in the world, resulting in throwing out their entrepreneurial endeavour in wilderness. To let them come out of such despairing condition the adoption law can play a magic and keep them active till their last day to flourish the economy of the country by expanding their wealth base as many having adopted child have done in our neighbouring countries.
So the sooner the adoption law comes into formation is the better.
The author is Joint District Judge, Sirajgonj.