Muslim child can not be a non-Muslim, as general presumption was that a child born in Muslim Society belonged to a Muslim family unless specifically proved that the child was not born out of Muslim wedlock, or his father was not Muslim by faith. Said presumption is rebuttable, and without rebuttal of the presumption by evidence, the custody of a Muslim child of unknown parentage, could not be given to a non-Muslim. Adoption of a child by a non-Muslim without proof that the child was born in a non-Muslim family, could result in conversion of a child into non-Muslim, and by compulsion without consent. Presumption, that parentless child in a Muslim Society was born in Muslim Family, was rebuttable through evidence of parentage before the court of competent jurisdiction and if it was proved that child was not born in Muslim Family, court could decide the question of custody of child accordingly. Non-Muslim could not be given custody of a deserted or parentless child or a child whose parentage was not known from an orphnage, or otherwise, Child born in non-Muslim family, could be adopted by a Muslim and his custody was to be regulated accordingly.
“Adoption” and “guardianship of a child” – The Difference
Guardianship – Custody of a male or female child, could be given to the relatives on paternal or maternal line in the order of relationship in prohibited degree under Islamic law, and a person having relation with a child in prohibited degree, could act as guardian of a child without a formal order of the court, but there was nothing to prevent a person from applying to the court under the Guardians and Wards Act, 1890, for his appointment, as a guardian, or declare him to be the guardian of a child; but a person, was not bound to wait to seek such declaration, until, his/her title or fitness to act as guardian of a child was disputed by another person. Application for the appointment of a guardian, could be made, not only by a person desirous of being or claiming to be, the guardian of the minor, but also by any relative or friend of the minor, and in some cases by the Collector of the District. Right of custody of a child in case of a boy under the age of seven years, and of a girl before attaining puberty, belonged to the male and female relatives in the order of prohibited degree in the paternal and maternal line of the child. Consideration for guardianship was based on the welfare of the minor and his/her interest, rather than the interest of parents. Presumption that welfare of the minor lay with the party entitled to the Hizanat was rebuttable and if in a given case the circumstances justified depriving a party, otherwise entitled to the custody under Islamic law, the court could pass an order accordingly.
Adoption, on the other hand, had different considerations. Adoption of a child had no legal effect in Shariah, rather it was for emotional and psychological satisfaction. Adoptive parents could treat an adopted child as their natural child in the matters of love, affection and general behaviour. Adoption of a child with the purpose to provide shelter to him, was virtuous, which carried much reward in welfare of the child but adoption had no legal consequence in Islam. Children should be attributed to the natural parents and not to the father or mother who had adopted him and marriage of adopted children with natural children of adoptive parents, were not prohibited, unless they related to each other in a prohibited degree. Adoption would not create a new legal relationship, which did not exist before adoption. Said Rule is inferred from the principle ordained by Holy Quran in ‘Surah Al-Ahzab’—People in ‘Jahiliyyah’ used to treat an adopted child in all respect as the real one, and the Allah Almighty in Holy Quran, condemned that practice.