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The Kafala System in Muslim Law: Towards Legal Recognition in India

- Niveditha Prasad


Introduction

The interests of children have long been a vital consideration in shaping norms and laws for society. Religion, as an important method of organizing society has also concerned itself with this question. The concern is particularly true in the case of abandoned children who do not have the support system of a family to nurture them.


This paper looks at kafala (also spelt kafalah) as a form of alternative childcare, as found in Islamic law and practiced among Muslims. Kafala, as we shall see, is the practice of bringing up children but not conferring upon them benefits that are usually accorded to a biological or adopted child. It is usually of two main types: first, an arrangement that can loosely be called ‘fosterage’ where the child is integrated into another family and second, sponsorship, where a child whose parents cannot take care of them is only financially supported.[1]


The paper first introduces it by referring to the precepts of Islam, the forms it can take and the manner of its practice and regulation in various Muslim nations. Second, it examines kafala under international law. Third, it investigates the status of kafala under Indian law and fourth, suggests some measures to remedy the deficiencies in India. Recognising that a legal vacuum surrounding kafala currently exists in India that prevents Muslims from taking care of children in a manner compliant with Islamic principles, this paper argues that India must take a cue from other nations, borrow from international law and provide for an enabling legislation to recognise and regulate the practice and protect the best interests of the child. The paper is limited to kafala in the form of foster care and does not deal with sponsorship.[2]


Origins & History


The practice of Kafala evolved as an alternative to adoption under Islamic law. While pre-Islamic society did have forms of adoption, the revelations in the Quran have been interpreted to recognise that Islam considers adoption haram.[3] However, this does not imply that children are simply abandoned. Instead, alternatives were worked out or as some scholars have argued, conditional adoption has been allowed within Islam.[4] These alternatives reflect the concern of the Quran for the protection of children.[5] The children in need of protection need not only be orphans but can also be children whose fathers have died before they attained maturity, children deprived of parental care and children whose parents are unable to provide them support, supervision, and care.[6] Ensuring child rights via providing basic necessities is regarded as a spiritual duty.[7] Further, persons empowered to act on behalf of a child are explicitly required to abide by the best interests of the child.[8]


Parallelly, Islamic law also prohibits a child, not being related by blood, to take the name of another person and conferring inheritance rights on an unrelated individual.[9] There are also no marriage impediments between “adoptive” parents and spouses of adopted children.[10] This is the origin of the kafala practice. In line with the Quranic injunction on Muslims to care for abandoned children and provide for them like their own child, the kafala practice however does not entitle the child to inherit from the foster parent (kafil).[11] Nevertheless, the kafil parents are required to financially provide for the child after their death, say by a will, much like their own child is provided for through inheritance.[12] It may be noted here that Shia and Sunni scholars differ on whether the child can take the name of the kafil parent.[13] The precise mode of supporting the child may range from financial support or sponsorship of a needy child to welcoming the child into the kafil’s family.[12]Kafala may be temporary or permanent.[15]


Broadly, kafala can be divided into formal and informal ones. Formal kafala involves public authorities who place a child under a kafil through an established procedure[16] whereas informal kafala is a private arrangement, often made between biological and kafil parents. Informal kafala is often done in “secret” and no state official is usually involved in this process.[17] The lack of governmental scrutiny increases the chance of abuse or neglect of the child.[18] The kafil parent is required to undertake measures to ensure that the child is educated and protected. However, under classical Islamic law this was a moral obligation rather than a legal one.[19]


Not all Islamic or Muslim-majority countries explicitly recognise kafala. Even among countries that clearly codify kafala, there is a great degree of variance, presumably due to local practices and conditions. Tunisia and Morocco codify kafala and confer protection to the makful (the child) only during minority of the child, except when the child is a girl or disabled.[20] On the other hand, Algeria’s laws hold that the kafala may end only when, under specific circumstances, the biological parent returns or the kafil moves to Court to terminate the kafala.[21] Iran, despite being an Islamic country does not have an institution like kafala.[22] Some Islamic countries have crafted laws that, while not explicitly recognising kafala in its foster care form, resemble it. For example, in the United Arab Emirates where kafala is the predominant practice as adoption is prohibited for Muslims, the persons must apply for fostering a child, undergo an assessment by a social worker who determines the suitability of the applicant and their family for the child. The social workers then continuously visit the family to monitor the children’s wellbeing.[23] While data is hard to come by in the UAE to understand the efficiency of the system, there appears to be some amount of support to families caring for such children.


International Recognition


The recognition of kafala as an alternative to adoption extends beyond traditional Islamic law and Islamic countries. Article 20 of the Convention on Rights of Child (that India has ratified) identifies it as an alternative form of care for children who have been deprived, either temporarily or permanently of their family environment. Crucially, it places kafala as an alternative care model which accounts for the need of continuity of a child’s background. The United Nations’ Guidelines for Alternative Care for Children adopted by the UN General Assembly also recognises the importance of kafala as a stable form of alternative family-like care for children. However, the Guidelines caution against placing a child under kafala without first taking measures to identify the child’s parents or other caretakers.


Kafala Under Indian Law


There is a critical lack of literature on the subject of kafala in India. No statute currently regulates it. In its current form, the Juvenile Justice Act, 2015 (‘the JJ Act’) while allowing Muslims also to adopt, does not explicitly recognise kafala. Therefore, some Muslims might be hesitant to adopt children under this law as adoption, as explained above, is contrary to their religious principles. However, it recognises various forms of sponsorship,[24] which is a form of kafala. Further, it does recognise foster care where children are placed with foster families after a vetting process is undertaken by the government.[25] It lays down that a foster family has the responsibility of providing children under their care with education and ensuring their health, nutrition, and overall well-being.[26] While Islamic fosterage is a separate form of childcare,[27] these provisions are similar to the duties of a kafil parent.


Prior to the JJ Act, the Guardians and Wards Act, 1890 was the only law by which Muslims (among other minority communities) could confer a child with the status of a ward which is not the equivalent of adopting a child to make them their son or daughter. While a guardian, like the practice in kafala, can make provisions for their ward by a will there is no automatic right to inheritance.[28] It may be mentioned here that under Muslim law, a kafil parent may be allowed to bequeath property to a makful. But the bequest is limited to only one-third of one’s property.[29] Additionally, the Model Guidelines for Foster Care (‘the Guidelines’) lay down the procedure for the selection of a foster family,[30] placement and counselling of the child,[31] monitoring, review, and termination of fosterage. While not binding upon states, these procedures recommend putting in place adequate protections which ensure that the child is placed within a suitable family.


The judiciary has not been forthcoming in filling this gap. The SC mentioned kafala in passing in Shabnam Hashmi.[32] In that case, the All India Muslim Personal Law Board had contended that since kafala existed as an alternative to adoption, it ought to be recognised under the then Juvenile Justice Act[33] which recommended “foster care” or “sponsorship” as a form of rehabilitation and social integration.[34] However, the Court did not delve into these arguments and recognise kafala, while ultimately ruling that Muslims could opt for adoption under the secular JJ Act.[35]


The above description of the legal framework makes it clear that a degree of legal ambiguity is present wherein children taken care of under kafala have no explicit claims to the protections provided. This is particularly exacerbated as many a times, kafala is completely informal and does not involve any kind of state intervention. This puts children in an extremely vulnerable position. First, the family that takes in the child might not be able to provide a suitable environment for the child. Without any kind of government authority monitoring or following-up with the family, the child might be subject to abuse, neglect and may be even pushed to child labour as has been observed in other countries.[36] Such practices particularly harm young girls. Under the Model Rules, this is mitigated by allowing an opportunity to the child, relatives or community members to complain and initiate an inquiry by the District Child Protection Unit who can then terminate the fosterage. Second, the kafil parents may abandon the child. Third, even if the family provides a safe environment for the child, the legal ambiguity surrounding the practice might lead to officials separating the child from their kafil parents for various ungrounded reasons and placing them in institutions. Fourth, while there is little information about whether kafala as practiced in India follows this practice, religious doctrine as explained above mandates that the children be known about their lineage. However, children might be completely severed from and be unaware of their biological family, thereby, may end up losing inheritance claims. This makes kafala an extremely unstable setup for the child in India.


Moreover, the Juvenile Justice Act itself place some restrictions on the fosterage of children. The Act states that children who can be adopted should not be placed under long-term fosterage.[37] In other words, it regards fosterage (in any form, presumably including kafala) as only a fall-back option when adoption is unfeasible. In line with this, the Guidelines deem fosterage to be an option for children only after adoption is not viable,[38] thus, making it difficult for children to be placed under a foster family. For example, it proposes that only children above the age of six who have not been adopted two years after being declared legally free for adoption by the Child Welfare Committee (“CWC”) can be deemed eligible for being placed under fosterage.[39] This unreasonably places a restriction on Muslims who may want to foster a younger child to better integrate them within their family. The child is also not better off with this provision because it increases the time they have to spend in institutions.


To sum up, this section shows how the JJ Act and its Guidelines do not adequately cover the practice of kafala as foster care. It is first, a secular legislation that does not cover childcare which stems from religious practices. Consequently, it does not account for the mandates that are required by religious tenets. There is no comparable enabling provision like the Hindu Adoption and Maintenance Act which codifies religious practices. This leaves Muslims who want to become makful parents in accordance to their religious teachings in a legal grey hole. Second, some provisions of the Guidelines are contrary to kafala’s principles which makes it difficult to reconcile it within the existing legal regime.


Towards a Legal Framework


The above description of the status quo surrounding kafala in India makes it evident that regulation is necessary. A regulation must naturally be in consonance with the Constitution and India’s international obligations related to child rights. Contemporaneously, it must take a cue from practices evolved in foreign jurisdictions and adhere to Islamic principles. The first step towards this would be an express recognition of kafala, preferably under the JJ Act as it functions as the primary statute dealing with child care in India.


Let us consider possible regulatory principles through a hypothetical. Authorities looking to find kafil parents for a Muslim child must first aim to locate her biological parents. This is important to ensure the preservation of ties with the biological family, for giving the child her family’s name and to find plausible alternatives like kafala in the form of sponsorship. While finding suitable kafil parents, the CWC must ensure that the parents are close to the child’s own cultural background. Such a measure would be in line with the Convention on Rights of Child as explained above. Needless to say, anyone applying to be a kafil parent must undergo assessments by authorities to determine their suitability as a parent, as is the practice in the UAE and is suggested by the Guidelines. Once a child has been placed with the kafil parents, the parents must undergo counselling by authorities and/or Islamic clerics with knowledge of the Quranic directives for kafil parents. The counselling must educate them about the various duties they are required to perform both as decreed under Islamic principles as well as under the secular Guidelines. The parents must also be instructed to inform the child about her biological family (if known) to adhere to the rule that the child must not be misled about her lineage. Further, the parents must be informed about protecting the child’s financial security after their life through a will. It is submitted that the parents should be given the freedom to give the child their family name according to the sect they belong to.


Once the child is placed within a family, there must be regular visits and monitoring of the child as envisioned under the Model Rules.[40] This would mitigate the risks of child abuse present under a completely informal kafala. While kafala can be both temporary or permanent, it is submitted that kafala ought to be permanent until any of the following three conditions occur:


a) the child is being neglected or abused by the kafil parents or

b) the biological parent wishes to get back and maintain the child who, if of suitable age, consents to it or

c) either or both the kafil parents die making the foster family unsuitable for the child to grow up in


While jurisdictions like Algeria allow the parents to terminate the kafala by approaching a Court, this should not be encouraged in India as it would allow for an almost unilateral abandonment of the child, depriving her of much-needed security. The implementation of the model remains an issue. India’s child protection services receive low public-funding and varies greatly across states. In this situation, the promises of this model, which depends on diligent enforcement and supervision by state authorities might not materialise. Further, there may be community-based deviations from the classical understanding of kafala that may have to be suitable accounted for in any enabling legislation. However, the model proposed here would still go a long way in ensuring not only security and safety of the child, but also provide an opportunity for the biological parent to re-establish ties with her child.


Conclusion


As this paper has shown, the legal framework in India is currently not conducive enough for Muslims to take care of a child in a manner that is compliant with Islamic principles and general principles of child welfare. This is an especially concerning situation due to the number of orphans and other children in need of a support system. This paper, while acknowledging the limitations of its scope, identifies the abovementioned gap and has sought to fill the vacuum by suggesting a framework. It is hoped that this will help ameliorate the situation of children in need of a support, care, and safety.


[1] International Social Service (ISS), Kafala: Preliminary analysis of national and cross-border practices, 17. [2] See ibid, 94 for a general critique of sponsorship as a form of alternative child-care

[3] ibid, 16.

[4] Raffia Arshad, Islamic Family Law (Sweet & Maxwell 2010) 171. [5] M. Siraj Sait, ‘Islamic Perspectives on the Rights of the Child’ in Deirdre Fottrell (ed), Revisiting Children’s Rights: 10 years of the UN Convention on the Rights of the Child (Kluwer Law International) 40. [6] Arshad (n 4) 171. [7] Sait (n 5). [8] ibid, 42. [9] ISS (n 1). [10] ibid. [11] ibid. [12] Arshad (n 4) 9.3.2. [13] Arshad (n 4) 170. [14] ISS (n 1) 17. [15] ibid. [16] ISS (n 1) 17. [17] ibid, 1. [18] ibid, 17.

[19] Ali Naqvi, ‘Adoption in Muslim law’ (Winter 1980) 19 Islamic Studies 4 283, 288. [20] Nadjma Yassarim, ‘Adding by choice: Adoption and Functional Equivalents in Islamic and Middle Eastern law’ (Fall 2015) 63 The American Journal of Comparative Law 4 927, 951. [21] ibid, 953. [22] ibid, 957. [23] Andra Büchler and Eveline Schneider Kayasseh, ‘Fostering and Adoption in Islamic Law- Under Consideration of the Laws of Morocco, Egypt, and the United Arab Emirates’ (2016) 6 Electronic Journal of Islamic and Middle Eastern Law 31, 53.

[24] Juvenile Justice Act 2015, §40. [25] Juvenile Justice Act 2015, §44. [26] Juvenile Justice Act 2015, §44(6). [27] AA Fyzee, Outlines of Muslim Law (Tahir Mahmood ed, 5th ed, OUP 2008) 80. [28] Asha Bajpai, Child Rights in India: Law, Policy, and Practice (3rd ed, OUP 2017) 61. [29] Fyzee (n 27) 292. [30] Model Guidelines for Foster Care 2016, 10.1. [31] Model Guidelines for Foster Care 2016, 2.1.9, 2.2.4. [32] (2014) 4 SCC 1 [12].

[33] ibid. [34] Juvenile Justice Act 2000, §40. [35] Shabnam Hashmi(n 32) [13]. [36] ISS (n 16). [37] Juvenile Justice Act 2015, §44(9).

[38] Model Guidelines 2016, 7. [39] Model Guidelines 2016, 7A. [40] Model Guidelines 2016, Chapter III.


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