Adoption Under Muslim Law (Position)

Classical Islamic jurisprudence does not recognise the institution that the common law calls full adoption — the legal device by which a stranger is made a son or daughter of another, taking that family's name, severing his original lineage, and inheriting as a child of blood. Verses of the Holy Quran (Surah al-Ahzab, 33:4 and 33:5) expressly reject the practice: an adopted son is not to be called by the name of the adopter, and lineage is to be traced to the natural father. The bare doctrine, applied in India through Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, leaves no room for adoption between Muslims as a matter of personal law.

Yet the Indian legal landscape since 1956 has been more nuanced than the bare doctrine. Three threads complicate the picture: the doctrine of acknowledgment of paternity (a Hanafi quasi-adoption), the institution of kafala (custodial fostering known across the Islamic world), and the secular statutory route opened by the Juvenile Justice (Care and Protection of Children) Act, 2015. Read together, these three threads describe the realistic position of Muslim Law as a whole on the question.

Statutory and shariah anchor

The federal anchor is Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which directs that in matters of intestate succession, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts and waqfs, where the parties are Muslims, the rule of decision shall be Muslim personal law. Adoption is not in the enumerated list, and that omission is itself doctrinally significant. The Hindu Adoptions and Maintenance Act, 1956 expressly does not apply to Muslims, Christians, Parsis or Jews — a deliberate carve-out that mirrors the broader architecture of school-led personal law in India. The result is that no codified personal law of adoption exists for Indian Muslims; the field is governed by classical doctrine and, subordinately, by secular statute.

The negative position is supported by the Quranic prohibition. Verse 33:4 declares that Allah has not made adopted sons natural sons; verse 33:5 directs adoptive parents to call the children by their natural fathers' names. The Hadith literature, preserved in Hedaya, reinforces the principle: lineage cannot be created where it does not exist. A Muslim cannot, therefore, by any private act, confer the legal status of a child of blood on a stranger. The corollary is significant for inheritance: the “adopted” child is a stranger to the inheritance of the Muslim adopter and remains a sharer or residuary in the estate of his natural family.

Acknowledgment of paternity — the Hanafi quasi-adoption

Where the bare prohibition applies, the Hanafi school recognises a single doctrinal escape valve: the doctrine of iqrar-i-nasab, or acknowledgment of paternity. This is not adoption. It is a substantive rule of evidence-and-status by which a man, where the marriage between the alleged parents is not proved (as distinguished from disproved), may acknowledge a child as his legitimate son or daughter, and the law thereupon presumes both the marriage and the legitimate descent. The leading authority is Muhammad Allahdad v. Muhammad Ismail, ILR (1888) 10 All 289, the judgment of Mahmood J., approved by the Privy Council in Sadik Husain v. Hashim Ali, (1916) ILR 38 All 627.

The doctrine has six conditions. The acknowledger must intend to confer the status of legitimate child, not merely of foster child or ward. The ages must admit of paternity. The acknowledged child must not be the offspring of zina (adultery, incest or fornication) — the Karnataka High Court in C.G. Amanulla Khan v. Anwar Khan reiterated that a child of zina cannot be made legitimate by acknowledgment. The child must not be known to be the child of another man. The acknowledgment must not be repudiated by the acknowledged. And the acknowledgment must apply to a case of uncertainty — not a case where the marriage between the parents is disproved.

The institution is structurally distinct from adoption. Adoption confers a status by act of will on a stranger; acknowledgment confers no status, but raises a presumption of an antecedent legitimate descent. The acknowledgment is, in the words of the Privy Council, “substantive evidence” of legitimacy. It can therefore be used to clarify ambiguous parentage, but not to manufacture parentage. For the aspirant: acknowledgment is a tool for cases of evidentiary uncertainty, not a route by which a Muslim can take in a stranger's child as his own. The doctrine sits more comfortably alongside the rules of legitimacy than alongside any institution of adoption.

Kafala — custodial fostering, not full adoption

Across the wider Islamic world, the absence of adoption is mediated by the institution of kafala: a duty undertaken by an adult to provide for the care, education and upbringing of a child whose biological parents are unable to do so. Kafala is a contract of guardianship and maintenance; it confers no rights of inheritance, does not change the child's name, and does not sever the child's link with his natural family. It is closer to the common-law institution of guardianship under the wilayat doctrine than to adoption.

Kafala is recognised in the United Nations Convention on the Rights of the Child (Article 20), and the 2015 statutory framework in India draws on its institutional vocabulary. The doctrinal point for the Indian aspirant is precise: kafala is not adoption, and Indian courts have not used kafala as a vehicle to introduce adoption into Muslim personal law. Kafala, however, remains the closest indigenous institution within Islamic jurisprudence to the protective relationship that Indian secular law calls adoption.

The JJ Act 2015 route — secular statutory adoption

The decisive Indian development is the Juvenile Justice (Care and Protection of Children) Act, 2015 (the JJ Act). Sections 56 to 73 of the Act create a complete statutory scheme for adoption that operates independently of personal law. Any prospective adoptive parent — Hindu, Muslim, Christian, Parsi or otherwise — may adopt under the Act through the Central Adoption Resource Authority (CARA) and the procedures laid out in the Adoption Regulations, 2017. The Act expressly overrides the prohibition that personal law might otherwise impose: the prospective parent's faith does not disqualify her, and the adopted child takes the legal status of a natural child for all purposes under the secular statute.

The constitutional point was settled by the Supreme Court in Shabnam Hashmi v. Union of India, (2014) 4 SCC 1. The petitioner, a Muslim woman, sought a declaration that the right to adopt is a fundamental right available to all citizens. The Court declined to declare the right a fundamental right under Article 21 but held that the (then) Juvenile Justice (Care and Protection of Children) Act, 2000 was a small, secular and enabling statute that operated on its own terms, and that any person, regardless of religion, was entitled to adopt under the Act. The decision is foundational: it does not displace classical Muslim law's refusal to recognise adoption, but it confirms a parallel statutory route that any Muslim parent can choose.

The doctrinal architecture is therefore dualist, much as post-divorce maintenance for Muslim women now sits across personal and statutory tracks. Within Muslim personal law, adoption remains unrecognised; the “adopted” child has no inheritance rights, no change of name, and no severance from natural lineage. Under the JJ Act 2015, a Muslim may secularly adopt and the adopted child acquires statutory rights under the Act. The two regimes co-exist; the choice is the parent's.

Inheritance consequences and the secular overlay

The dualist architecture has important consequences for inheritance. A child taken in by a Muslim under personal-law principles — whether through informal fostering or through kafala — remains a stranger to the inheritance of the foster parent. He cannot be a sharer or residuary under the Hanafi rules of inheritance; he cannot claim a forced share. The Muslim may, of course, leave him a bequest under the rules of wasiyat, but the bequest is capped by the one-third rule and is subject to consent of heirs if it exceeds the cap or favours an heir.

By contrast, a child adopted under the JJ Act 2015 takes the legal status of a natural child for all purposes. The adoption order severs the child's connection with the natural family and confers on him the rights, privileges and responsibilities of a natural-born child of the adoptive parent. Where the adoptive parent is a Muslim, the child becomes a sharer or residuary in the estate of the adoptive parent under the Hanafi rules, because the child's status is now that of a natural child. The point has been considered in obiter in lower-court decisions and reflects the supremacy of the JJ Act over personal-law disqualifications in the matter of adoption.

Customary departures — Khojas, Cutchi Memons and others

Some Muslim communities in India have, by custom, retained pre-conversion practices that include adoption. The Khojas and Cutchi Memons of the Bombay Presidency, who were originally Hindus and converted to Islam about four centuries ago, retained the Hindu law of inheritance and succession as a customary law. The Bombay High Court has recognised the custom in a long line of decisions, including Abdulrahim v. Halimabai, (1915) 43 IA 35, and Haji Oosman v. Haroon Saleh Mahomed, (1923) ILR 47 Bom 369. The custom does not extend to all areas of personal law — in matrimonial matters the communities are governed by Mahomedan law — but in inheritance and succession the Hindu rules are applied.

Whether the customary retention of Hindu inheritance carries with it the customary recognition of adoption is a question that has produced divergent decisions. The cleaner modern position is that, since Section 2 of the Shariat Act, 1937 was extended at the option of communities to displace customary law, and since the Hindu Adoptions and Maintenance Act, 1956 does not apply to Muslims by its own terms, customary adoption among Khojas and Cutchi Memons should be treated cautiously and read against the secular JJ Act 2015 route. Aspirants should remember the principle but not over-state its operation.

Distinguishing acknowledgment from adoption — an exam-essential point

The single most common error in answers on this chapter is to treat acknowledgment of paternity as a form of adoption. It is not. Acknowledgment operates only where the legitimacy of the child is uncertain (not disproved); adoption purports to create lineage where none exists. Acknowledgment requires that the child not be the offspring of zina; adoption is indifferent to the natural parents' marital status. Acknowledgment cannot be made in favour of a child known to be another man's; adoption is precisely the act of taking another person's child. Acknowledgment is a substantive rule of evidence-and-status; adoption is a substantive rule of family formation.

The rules sit in different doctrinal universes. Acknowledgment is the answer the Hanafi school gives where the marriage between the alleged parents is in evidentiary doubt. Adoption is the answer the common law gives where natural parentage is irrelevant to the desired legal relationship. A Muslim parent who wants the second answer must use the secular JJ Act route; he cannot stretch acknowledgment to do the work.

Comparative perspective — other Muslim-majority jurisdictions

Reading the Indian position against other Muslim-majority jurisdictions is illuminating. Tunisia, by the Code of Personal Status of 1956, expressly recognises adoption (tabanni) as a creature of statute, breaking with the classical position; the move was controversial and remains a Tunisian peculiarity. Most other Muslim-majority states retain the classical refusal but recognise kafala in elaborated forms — Morocco, Algeria and Egypt have detailed kafala legislation that confers extensive duties without breaching the Quranic prohibition on lineage. The Indian position, in this comparative landscape, is closer to the dominant Muslim-majority pattern: classical refusal at the level of personal law, plus a parallel secular or statutory route. The peculiarity of the Indian arrangement is that the secular route — the JJ Act 2015 — is open to all citizens regardless of religion, where in many Muslim-majority states the parallel statute is restricted to non-Muslims or to expatriates.

Hizanat and adoption distinguished

Adoption should also be distinguished from hizanat, the Muslim institution of custody of minor children. Working alongside the rules on nikah and on inheritance, hizanat is a right of physical custody and care, traditionally granted to the mother during the early years and to the father thereafter. It does not affect the child's lineage or inheritance. The mother who has hizanat is not an adopter; she is a custodial guardian within the framework of the natural family. The conflation of hizanat with adoption is another error to avoid.

Conversion and adoption — an interactional question

A separate question arises at the intersection of conversion and adoption. If a Hindu who has lawfully adopted a child under the Hindu Adoptions and Maintenance Act, 1956 subsequently converts to Islam, the adoption already accomplished is not undone. The child remains the adoptive parent's adopted child, with inheritance rights under the Hindu law that governed at the date of adoption, subject to whatever subsequent overrides Indian law might impose. The Privy Council in Mittar Sen Singh v. Maqbul Hasan Khan, (1930) 57 IA 313, established the foundational principle that a convert changes both his religion and his personal law — but pre-conversion accomplished facts are preserved. The interaction is doctrinally clean for completed adoptions; for pending or future adoptions, the adoptive parent's faith at the relevant date governs.

The Quranic prohibition — the textual architecture

The Quranic source of the Muslim refusal to admit adoption rewards close reading. Surah al-Ahzab, verse 33:4, opens with a metaphysical proposition: Allah has not made for any man two hearts in his interior, nor has He made the wives whom you divorce by zihar your mothers, nor has He made your adopted sons your sons. The verse then declares that this is mere talk by the mouth, and that Allah speaks the truth and guides to the way. Verse 33:5 instructs the believer to call adopted children by the name of their natural fathers, that being more just in the sight of Allah; if the natural father is unknown, the child is to be regarded as a brother in faith. The two verses establish, with unusual textual directness, both the prohibition of adoptive lineage and the affirmation of natural lineage.

The historical context, preserved in the classical sirah literature, attaches the prohibition to the Prophet's own household: the verse abrogated the practice by which Zaid ibn Haritha had been called the Prophet's son. The abrogation reordered Arabian custom, which had previously recognised adoptive sonship. The Indian aspirant should retain the doctrinal point precisely: adoption is not a custom or practice that the Quran is silent about; it is a custom that the Quran addresses by name and abolishes. The classical jurists therefore have no scope to recognise adoption by analogy or by ijma; the door is textually shut.

Maintenance, fostering and the Section 125 architecture

A separate practical question arises from the maintenance architecture. A Muslim who fosters a child without statutory adoption may nevertheless be liable to maintain the child under Section 125 of the Code of Criminal Procedure, 1973. The Supreme Court in Noor Saba Khatoon v. Mohd. Quasim held that the Section 125 obligation to maintain a minor child is independent of personal-law constraints, and the Bombay High Court has held that the obligation extends to the children of a dissolved Muslim wedlock irrespective of whether the parent has formally adopted. The result is doctrinally important: a Muslim foster parent assumes a maintenance obligation by virtue of the relationship of care, even though the child is not legally adopted. The maintenance is not, however, a substitute for adoption: it does not confer inheritance rights, it does not change the child's name, and it can be brought to an end on the foster relationship being severed.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 reinforces a parallel architecture for divorced Muslim women: the husband is liable to provide for the maintenance of his children for two years from the date of birth. The provision is a statutory floor on the personal-law obligation. Aspirants should be careful to keep the maintenance architecture distinct from the adoption architecture: the two operate on different premises and produce different consequences for the child's status. A child can be maintained without being adopted, and a child can be adopted under the JJ Act without depending on Section 125 for maintenance.

Practical position and exam-ready synthesis

For exam purposes, the chapter reduces to four propositions. First, classical Muslim law does not recognise adoption. The Quran prohibits it, and Section 2 of the Shariat Act, 1937 routes inheritance, marriage, dower, maintenance and gifts through Muslim personal law without admitting adoption. Second, the Hanafi school does recognise the doctrine of acknowledgment of paternity, but as a rule of evidence-and-status applicable to cases of uncertainty about marriage between the parents — it is not adoption. Third, kafala is the indigenous institution of custodial fostering; it confers care without inheritance and does not change the child's lineage. Fourth, the JJ Act 2015 provides a secular statutory route under which a Muslim may adopt; the route is constitutional, was endorsed in Shabnam Hashmi v. Union of India, and confers full legal status of natural child on the adopted child. Customary departures among Khojas and Cutchi Memons retain a limited Hindu-law overlay on inheritance, but do not generally extend to adoption in the modern position.

The chapter is genuinely thin in the doctrinal sense, because Muslim personal law has chosen not to develop a doctrine of adoption. The intellectual interest of the chapter lies in the architecture of the alternatives — acknowledgment, kafala and the secular JJ Act — and in the dualist resolution that the Indian legal system has adopted. Hold the four propositions clearly, and the chapter is mastered.

One final caution. The chapter has long been treated as a small annex to the main personal-law syllabus, often dispatched in a paragraph with the phrase “Muslim law does not recognise adoption”. That treatment will now lose marks. The serious answer must register the four propositions, must distinguish acknowledgment from adoption, must register the JJ Act as a route, and must cite Shabnam Hashmi as the constitutional anchor. The doctrinal architecture is dualist; the answer must reflect the dualism. Nothing else explains why a Muslim parent in 2026 may, lawfully and validly, adopt a child — just not under personal law. The wider doctrinal map — running through the landmark-cases survey — offers the constitutional framing for the dualist resolution.

Frequently asked questions

Why does Muslim law not recognise adoption?

The Quran in Surah al-Ahzab, verses 33:4 and 33:5, expressly directs that adopted sons are not natural sons and that lineage must be traced to the natural father. The Hadith literature reinforces the principle that lineage cannot be created where it does not exist. Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 routes inheritance, marriage and gifts through this rule. The classical doctrine therefore refuses to admit any private act that would confer the status of a child of blood on a stranger.

Is acknowledgment of paternity a form of adoption?

No. Acknowledgment of paternity is a Hanafi rule of evidence-and-status applicable only to cases of uncertainty about whether a marriage between the alleged parents existed. The leading authority is Muhammad Allahdad v. Muhammad Ismail. The rule does not create lineage where none exists; it raises a presumption of antecedent lawful marriage and legitimate descent. Adoption, by contrast, is the deliberate creation of a parent-child relationship between strangers. The two doctrines operate in different universes.

What is kafala and how does it differ from adoption?

Kafala is the institution by which an adult takes responsibility for the care, education and upbringing of a child whose biological parents cannot provide. It is recognised across the Islamic world and in Article 20 of the UN Convention on the Rights of the Child. Kafala confers no inheritance rights, does not change the child's name, and does not sever the child's natural lineage. It is structurally a contract of guardianship and maintenance, closer to the wilayat doctrine than to adoption.

Can a Muslim adopt a child under Indian law?

Yes, under the Juvenile Justice (Care and Protection of Children) Act, 2015. Sections 56 to 73 create a complete secular adoption regime that overrides any personal-law disqualification. The Supreme Court in Shabnam Hashmi v. Union of India confirmed that any person, regardless of religion, may adopt under the Act. The adopted child takes the legal status of a natural child of the adoptive parent for all purposes. Personal-law adoption remains unrecognised, but the secular route is fully available.

Does an adopted child inherit from a Muslim adoptive parent?

It depends on the route. A child taken in informally or under kafala remains a stranger to inheritance under personal law and cannot claim a forced share. The adoptive parent may, however, leave him a bequest within the one-third limit applicable to wasiyat. A child adopted under the JJ Act 2015 takes the full legal status of a natural child and is therefore a sharer or residuary in the estate of the Muslim adoptive parent under the ordinary Hanafi rules of inheritance, the Act conferring on him the same rights as a natural child.