Shabnam Hashmi v.

Union Of India

S.S.JAIN SUBODH LAW COLLEGE

Shabnam Hashmi v. Union Of India

SUBMISSION TO: SUBMITTED BY:

MR. PANKAJ AWASTHI VIKRAMADITYA SINGH RAGHAV

ASST. PROF. OF LAW ROLL NO: - 54

6TH SEMESTER

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TABLE OF CONTENTS

1. Declaration....3
2. Certificate..............4
3. Acknowledgment......................................................................................................5
4. List of abbreviation...6
5. Review of literature.......7
6. Research methodology .....8
Aims and Objectives
Hypothesis
Statement of research problem
Data Collection:
Method of Writing and Mode of Citation
7. Case list..................9
8. Introduction..10-12
9. Historical Background.
10. No Fault Liability under Motor Vehicle Act 1988( Chapter X) ..09
11. Case study of no fault liability16
12. Conclusion...16
13. Bibliography.............................................................................................................17

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DECLARATION

I, Vikramaditya Singh, do hereby declare that, this dissertation titled Shabnam Hashmi
v.Union Of India is an outcome of the research conducted by me under the guidance of
Mr. Pankaj Awasthi (Asst. Prof. of Law) at S.S. Jain Subodh Law College in fulfillment for
the award of the degree of B.A.LL.B. at the University of Rajasthan.

I also declare that, this work is original, except where assistance from other sources has been
taken and necessary acknowledgements for the same have been made at appropriate places. I
further declare that, this work has not been submitted either in whole or in part, for any
degree or equivalent in any other institution.

Date: 21st February, 2017

Place: Jaipur

VIKRAMADITYA SINGH

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CERTIFICATE

To whomsoever it may concern, This is to certify that, the research topic Shabnam Hashmi
v.Union Of India submitted by Vikramaditya Singh in fulfilment for the award of the
degree of B.A.LL.B. at S.S. Jain Subodh Law College is the product of research carried out
under my guidance and supervision.

Mrs. Pankaj Awasthi

Asst. Prof. of Law
S.S. Jain Subodh Law College

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AKNOWLEDGEMENT

I acknowledge with profundity, my obligation to Almighty God and my parents for giving me
the grace to accomplish my work, without which this project would not have been possible. I
express my heartfelt gratitude to my respected faculty, Mr. Pankaj Awasthi (Asst. Prof. of
Law) for providing me with valuable suggestions to complete this dissertation. I am
especially grateful to all my faculty members at SS Jain Subodh Law College who have
helped me imbibe the basic research and writing skills. Lastly, I take upon myself, the
drawbacks and limitations of this study, if any.

Date: 21st February, 2017

Place: Jaipur

VIKRAMADITYA SINGH

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LITERATUE REVIEW

The controversy surrounding automobile insurance reform has thus far focused on
whether fault should be eliminated as the basis of liability. However, a shift in emphasis
in these debated s imminent, whether a no fault insurance plan should be adopted is
slowly becoming a moot question. In its place is a growing concern over what form a no
fault plan should take. Whether the change is directly attributable to the owners of the
nations 108 million cars is perhaps debatable, but their research problem with the present
liability system and demand for reform cannot be ignored. (Puerto Rico Massachusetts)

In case where compensation is paid on no fault liability under Sections 140 and 161 in
case of "hit-and-run motor accidents", the Legislature has provided adjustment or refund
of the said compensation in case where compensation is determined and payable under
the award on the basis of fault liability under Section 168 of the Act. There is no such
procedure for refund or adjustment of compensation paid where the compensation is paid
under Section 163-A. ( P V Shetty, D S Kumar)

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RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic Shabnam Hashmi v.Union
Of India forming a concrete informative capsule of the same with an insight into its
relevance in the insurance law

Hypothesis:

Decomposition is critical in the application to law but at the same time is very important for
the Understanding the stages of decomposition. Insects associated with decomposing remains
may be useful in determining post-mortem interval, manner of death, and the association of
suspects

Statement of research problem:

What exactly is Decomposition : In The light Of Forensic Entomology.

Data Collection:
The following secondary sources of data have been used in the project-
Case Study
Websites
Case Laws
Books

Method of Writing and Mode of Citation:

The method of writing followed in the course of this research project is primarily
analytical. The researcher has followed Uniform method of citation throughout the course of
this research project.

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INTRODUCTION

Both the legislature and judiciary have remained very reluctant in taking tough stands on
matters pertaining to personal laws and secularism. They are usually dominated by the
orthodox views of the minority sects and denominations citing, in most cases, the reasons of
the sensitive nature of the matter and law and order. But it should not be forgotten that the
Preamble to the Indian Constitution explicitly describes India as a secular country that
secures to all its citizens equality, amongst other things. The greater picture stands
undermined by the current approach of the organs of Government. Even in the past, when
attempts were made in furtherance of promoting secularism, they got stalled by the religious
outcry.

A Bill on the Uniform Civil Code was introduced in the Indian parliament, but owing to the
hue and cry from the Muslim Community the Bill never became an Act. Moreover, the
Central Government introduced the Adoption of Children Bill, 1972 in the Rajya Sabha, but
it was subsequently dropped, presumably because of Muslim opposition to a uniform law of
adoption applicable to all communities including Muslims. It is claimed that Islam does not
recognize adoption and a child adopted by a Muslim will not be treated at par with a child
adopted by a Hindu. However most of the non-Hindu communities do not recognize adoption
viz. Muslims, Parsis, Christians and Jews etc. Adoption for the non-Hindus is facilitated
by The Guardians and Wards Act, 1890.

This however does not provide to the child the same status as a child born biologically to the
family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956 the
child cannot become their own, take their name or inherit their properly by right. This Act
confers only a guardian-ward relationship. Such a relationship exists until the child completes
21 years of age. Soon after attaining majority the legal guardian-ward relationship
extinguishes and the adopted Muslim child becomes a na-mehram (not in blood relation) to
the adoptee. This results in discrimination between a child who is adopted by a Hindu under
Hindu Adoption and Maintenance Act, 1956 and a child adopted by a non-Hindu under The
Guardians and Wards Act, 1890.

The Islamic orthodoxy claims to seek relevance from the Quran, but nowhere in the Holy
Scripture is it mentioned that adoption is not allowed. The custom of adoption was prevalent
in pre-Islamic Arabia, so much so that even Mohammad the Prophet himself took Zaid, the
son of Haris in adoption. Many non-Hindus have always desired to adopt children so that the
adopted child can inherit the property, but are unable to do so due to the lack of legislation. It
is unfair for those childless parents who want to adopt a child and for the child who after the
age of 21 does not have any legal bonds with the parents who brought him up over the years.

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COURTS TAKE ON THE UNIFORM CIVIL CODE

Article 44, which is a DIRECTIVE PRINCIPLE OF STATE POLICY, provides that

The State shall endeavor to secure for the citizens a uniform civil code throughout the
territory of India.

This Article mandates the state to strive to bring in place a Uniform Civil Code. Though it is
not binding but it imposes an obligation on the State. While this has been an agenda in the
manifesto of various political parties but may be because of the vote-bank politics or
communalization they have not been able to succeed in their endeavor. Besides, the courts
have also seemed to be rather reluctant in giving a clear stance over the matter and till date no
specific guidelines have been laid down. The Supreme Court could have interpreted adoption
as a fundamental right under Article 21 for both the parents and the child but they abstained
from doing so and procrastinated the duty by stating, We hardly need to reiterate the well
settled principles of judicial restraint, the fundamental of which requires the Court not to deal
with issues of Constitutional interpretation unless such an exercise is but unavoidable

ADOPTION BY FOREIGN NATIONALS

The absence of a secular law not only affects Indians, but it also affects the foreign nationals
who come to India with the desire of adopting a child. However since there is no law in place
for such people, they are required to follow a cumbersome process by first taking the
guardianship of the child from the courts under the Guardians and Wards Act, 1890 and then
giving due assurance to the Court that they would legally adopt the child as per the laws of
their country within two years of their arrival there. All this can be avoided by bringing a law
in place which will deal with all such cases and consequentially the misuse of adoptees will
also come down. Newspapers have reported a number of cases where the child has gone to an
alien land only to be mistreated. Such children have been used as domestic servants, beggars
and even for prostitution. The Andhra Pradesh scandals illustrate the wide gap between the
laws of inter-country adoption and the actual practices. In relation to inter-country adoption
certain guidelines have been laid down by the Supreme Court as to how the adoption shall
take place in Lakshmi Kant Pandey v. Union of India. A regulatory body, i.e., Central
Adoption Resource Agency (for short CARA) was recommended for creation and
accordingly set up by the Government of India in the year 1989, Since then, the said body has
been playing a pivotal role, laying down norms both substantive and procedural, in the matter
of inter as well as in country adoptions.

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PROBLEMS FACED BY NON-HINDUS

But the problems in intra-country adoptions still persist, due to the lack of a secular law. The
misery of such people was very well reflected in the recent case of Shabnam Hashmi v.
Union of India], when Shabnam Hashmi visited her first adoption centre in New Delhis
suburbs, she was told that they didnt have any Muslim children. Shabman Hashmi who
had a son wanted to adopt a daughter to make a complete family.
However she learnt that Muslims cannot adopt or be adopted and if they want to do so
it can only be done by virtue of The Guardians and Wards Act, 1890, which doesnt give
a legal status of biological parents nor does adoptee have any rights of inheritance. She
filed a Writ Petition in the Supreme Court in 2005 to give the Muslim parents the same
status as that of a biological parent and to recognize adoption as a fundamental right
under Article 21. An alternative prayer was made requesting the Court to lay down optional
guidelines enabling adoption of children by persons irrespective of religion, caste, creed etc.
and further for a direction to the respondent Union of India to enact an optional law for
facilitation of adoption irrespective of religious considerations. The Court disposed the matter
on 19th February 14, without issuing any such direction, but it emphasized that the
provisions relating to adoption under the Juvenile Justice (Care and Protection of Children)
Act, 2000 can be availed by any person notwithstanding the position of adoption under the
personal law. The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV under the
head Rehabilitation and Social Reintegration for a child in need of care and protection.
Such rehabilitation and social reintegration was to be carried out alternatively by adoption or
foster care or sponsorship or by sending the child to an after-care organization. Section
41 contemplates adoption though it makes it clear that the primary responsibility for
providing care and protection to a child is of his immediate family. Sections 42, 43 and 44 of
the JJ Act, 2000 deal with the alternative methods of rehabilitation namely, foster care,
sponsorship and being looked after by an after-care organization. The JJ Act, 2000, however
did not define adoption and it is only by the amendment of 2006 that the meaning thereof
came to be expressed in the following terms:

2(aa)-adoption means the process through which the adopted child is permanently
separated from his biological parents and become the legitimate child of his adoptive parents
with all the rights, privileges and responsibilities that are attached to the relationship

Nevertheless, the Supreme Court did not recognize adoption as a fundamental right under
Article 21 and claimed self-restraint. The Courts refusal to the right to adopt is an integral
part of Article 21, which guarantees the right to life and liberty, is not convincing. In this era
of judicial activism it is absurd to say that the Supreme Court has no Constitutional
responsibility to discharge the obligation under Article 44 to strive towards the enactment to a
Uniform Civil Code is not satisfactory.

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WHO HAS TO TAKE THE CALL

The Court could have taken a better stand even if there was opposition from All India Muslim
Personal Law Board (AIMPLB). Is it for the AIMPLB to take a call on how a secular law
should be and to try and dominate the Apex Court of the country? If so, I digress. The Board
has been persistently trying to overpower the Supreme Courts judgment. According to the
Board, Islamic Law professes what is known as the Kafala system under which the child is
placed under a Kafil who provides for the well-being of the child including financial
support and thus is legally allowed to take care of the child though the child remains the true
descendant of his biological parents and not that of the adoptive parents. The Board
contended that the Kafala system which is recognized by the United Nations Convention
of the Rights of the Child under Article 20(3) is one of the alternate system of child care
contemplated by the JJ Act, 2000 and therefore a direction should be issued to all the Child
Welfare Committees to keep in mind and follow the principles of Islamic Law before
declaring a Muslim child available for adoption under Section 41(5) of the JJ Act, 2000. This
is a blatant display of hegemony over the Apex Court.

INTERNATIONAL CONVENTIONS ON ADOPTION

In 1959, United Nations gave official recognition to the rights of children by adopting the
Human Rights of the Child 1959, to which India became a signatory on 11th December 1992,
which would imply that they have to be incorporated into the legal system. Article 4 of the
Convention provides that the state parties should review their legislation and ensure that the
laws are consistent with the Convention. Principle 1 of the Convention reads every child,
without any exception whatsoever, shall be entitled to these rights without distinction or
discrimination on account of race, language, religion. A child shall be protected from
practices which may foster racial, religious or any other form of discrimination. The
Conventions object clearly states that the Convention is to apply to all adoptions between
contracting states that create a permanent parent-child relation. The Islamic principles of
fosterage however blatantly deny property rights to non-Muslim children who are adopted
and this is unfair. The Indian Constitution does not protect religious interests which violate
basic human rights.

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THE CONSTITUTIONAL CONFLICT

More often than not the endeavors by the courts and legislatures towards the creation of a
uniform code are disrupted on the grounds of violation of Article 25 & 26, freedom of
religion and conscience. However Article 25 protects only such practices which are essential
and integral to any religion. Laws and regulations of social relationship in the matter of
marriage, divorce, succession, adoption etc are undoubtedly secular in character and therefore
cannot be brought within the guarantee enshrined under Article 25 and 26 of the
constitution. The right to freedom of religion is not an absolute right. Courts have correctly
weighed religious interests against the governmental interest of promoting the health, safety,
and general welfare of society. In accordance with Article 25, the State can interfere in
religious matters if it is for social welfare and reform. Besides, Section 2 of the Shariat
Application Act, 1937 enumerates the subjects which are to be governed by the Muslim
Personal law. The matters enumerated in the Section do not include adoption. For the
interpretation of the Section the decision of two judge bench judgment of Madras High Court
in Purahil Karnavan v. Thayat Avooma can be considered wherein the Court held that
exclusion of other subjects such as adoption in respect of which a valid custom could govern
and be binding on the parties does not mean that it is not permissible for the parties to rely on
such a valid custom, if there is one. Any attempt to give up such a custom would be held
invalid. Considering the above authorities it can be sufficiently concluded that Islamic law
recognizes adoption and therefore, a uniform law governing adoption cannot be declared
unconstitutional.

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JUDGEMENT

In a notable judgement on the petition of the clients of Human Rights Law Network,
'Shabnam Hashmi vs the Union Of India', the Supreme Court has decreed that prospective
parents irrespective of their religious background are free to adopt children after the
prescribed procedure. The court in it's order said that 'personal beliefs and faiths, though must
be honoured, cannot dictate the operation of the provisions of an enabling statute.

In this notable judgment, the Supreme Court of India declared that the right to adopt a child
by a person as per the provisions of the Juvenile Justice Act would prevail over all personal
laws and religious codes in the country. The 3 judge bench consisting of Chief Justice P.
Sathasivam and Justices Ranjan Gogoi and Shiv Kirti Singh however maintained that
personal laws would continue to govern any person who chooses to submit himself until such
time that the vision of a uniform civil code is achieved.

The Honble Court also stated that adoption was a matter of personal choice and there was no
compulsion on any person to adopt or adopt child.

The Juvenile Justice Act, 2002 defines adoption in Section 2(aa). It confers upon the adoptive
parents and the child all rights, privileges and responsibilities that are attached to a normal
parent child relationship.

With this declaration, prospective parents, irrespective of their religious background would
be free to access the provisions of the Juvenile Justice Act a secular act, for adoption of
children after following the procedure prescribed.

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CONCLUSION

Uniform Civil Code is an idea much talked about but less acted upon. Political motives of
various parties and their affiliation and commitment to different sects is, without any doubt, a
main reason behind the non-implementation of Uniform Civil Code. Furthermore, Article
38(2), another Directive Principle of State Policy states, The State shall endeavor to
eliminate inequalities in status. Hence a uniform law for adoption will eliminate the unequal
status of a child adopted by a Hindu and a child adopted by a non-Hindu.

There is indeed a severe need for a uniform law on adoption in India to avoid discrimination
between various religious communities. The day is not far when people of this country will
shove off their religious vengeance and will start living harmoniously with each other, if the
Government endeavors to secure the Uniform Civil Code and stops dividing people on the
basis of caste, creed and religion. India will then truly become a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC.

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BIBLIOGRAPHY
BOOKS

Gennard, D.E. (2007). Forensic Entomology: An Introduction. John Wiley & Sons Ltd.
Payne, J.A. (1965). "A summer carrion study of the baby pig sus scrofa Linnaeus". Ecology. 46 (5):
511523
Anderson G.S.; VanLaerhoven S.L. (1996). "Initial studies on insect succession on carrion in
southwestern British Columbia"
Catts E.P.; Goff M.L. (1992). "Forensic entomology in criminal investigations". Annual Review of
Entomology. 37: 253272.
Haskell NH, McShaffrey DG, Hawley DA, Williams RE, Pless JE (1989). "Use of aquatic insects in
determining submersion interval". J.Forensic.Sci. 34 (3): 6226326.
Carloye, Lisa (2003). "Of Maggots & Murder: Forensic Entomology in the Classroom". The
American Biology Teacher. 65 (5): 360366

WEBSITES

www.hrln.org/.../1494-supreme-court-says-prospective-parents-irrespective-of-religion

https://indiankanoon.org/doc/105818923/judis.nic.in/supremecourt/imgs1.aspx?filename=
41234

https://www.lawctopus.com/academike/uniform-law-of-adoption/

www.supremecourtcases.com/index2.php?option=com_content&itemid

https://indialawnews.org/2014/03/01/case-notes-a-step-toward-a-uniform-civil-code/

www.iosrjournals.org/iosr-jhss/papers/Vol.%2021%20Issue3/.../B2103030911.pdf

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