JUDGMENT : (J.J. Munir, J.) : 1. The issue is: Whether with the evolution of society and the right to life receiving a progressively expanded interpretation, should not the right to adopt a child for citizens of India, who are Muslims, be also regarded as part of the fundamental right enshrined under Article 21 of the Constitution? 2. Since there is hardly a dispute on facts involved in this case, Mr. P.C. Srivastava, learned Additional Advocate General assisted by Mr. Yashwant Singh, learned Standing Counsel appearing on behalf of respondent Nos.1 and 2, waived their right to file a return. Likewise, Mr. Shekhar Kumar, learned Counsel appearing on behalf of respondent No.3, also waived his right to file a counter affidavit. 3. The petition was, accordingly, admitted to hearing and heard without a return. 4. Heard Mr. Sharad Saran Srivastava, learned Counsel for the petitioner, Mr. P.C. Srivastava, learned Additional Advocate General assisted by Mr. Yashwant Singh, learned Standing appearing on behalf of respondent Nos. 1 and 2, and Mr. Shekhar Kumar, learned Counsel appearing on behalf of respondent No.3. 5. The short facts giving rise to this petition are that the petitioner, Mumtaz Alam claims to be the adopted son of the late Gulenoor Khatoon @ Noor Bano, wife of Mohd. Haneef. Gulenoor Khatoon was an employee of the Nagar Palika Parishad, Khair, District Aligarh. She died on 08.01.2022. Gulenoor Khatoon's husband, the late Mohd. Haneef had predeceased her and they were an issueless couple. Gulenoor Khatoon, therefore, thought that she should adopt a child. The reason is expressed in a document, that is described as a deed of adoption or Godnama. The motive assigned is that being issuless, Gulenoor thought that it is necessary to have a child. She was scouting for an appropriate choice and requested her brother to give his son in adoption. The deed of adoption or Godnama, as the document is described, was executed between Gulenoor Khatoon as the first party and Allauddin son of Mohd. Qasim Ali, the second party. 6. The document describes that the second party, upon considering the request, decided to give in adoption his son, Mumtaz Alam to the first party as her son. The deed recites that Mumtaz Alam would have all privileges to perform her last rites, and on and from the date of adoption, Mumtaz Alam, then aged 3 years, would be her son. The document describes that the second party, upon considering the request, decided to give in adoption his son, Mumtaz Alam to the first party as her son. The deed recites that Mumtaz Alam would have all privileges to perform her last rites, and on and from the date of adoption, Mumtaz Alam, then aged 3 years, would be her son. Mumtaz Alam's education and upbringing would be taken care of by Gulenoor Khatoon. Mumtaz Alam would have the same rights vis-a-vis Gulenoor Khatoon as a son towards his mother. He would have the obligation to perform her rights of the third day (Teeja) after her demise and the fortieth day (Chaalisa). The adoption deed also says that any other relative of the bloodline, close or remote, who may present any claim, contrary to the deed of adoption, would be without right or authority and considered void. 7. The petitioner, after demise of Gulenoor Khatoon, claimed family pension and other post retiral benefits due to the deceased employee, on account of death-cum-retirement benefits. The petitioner's case for grant of family pension and gratuity was approved vide memo dated 13.07.2022 issued by the Deputy Director, Local Fund Examination Department, Aligarh and addressed to the Executive Officer, Nagar Palika Parishad, Khair, District Aligarh. The Collector, Aligarh vide a memo dated 18.08.2022 also recommended to the Additional Commissioner, Aligarh Division, Aligarh payment of death-cum-retirement benefits, due on account of the deceased employee’s services, to the petitioner, treating him to be her son. 8. The matter came up for approval before the Additional Commissioner, Aligarh Division, Aligarh, acting instead for the Commissioner as the Prescribed Authority under the U.P. Municipalities Act, 1916. The Additional Commissioner, Aligarh Division, Aligarh has rejected the petitioner's claim holding that under the Muslim Law, there is no recognition of adoption of a child. It was held that the deed of adoption dated 03.04.2006 is void in the eyes of law. There are some other remarks as well disbelieving the adoption deed. Those need not be examined, if the question involved here is considered and answered one way. 9. Learned Counsel for the petitioner has placed reliance upon the decision of the Supreme Court in Shabnam Hashmi v. Union of India and others, (2014) 4 SCC 1 . 10. On the contrary, Mr. P.C. Srivastava has relied upon the decision of this Court in Mohd. 9. Learned Counsel for the petitioner has placed reliance upon the decision of the Supreme Court in Shabnam Hashmi v. Union of India and others, (2014) 4 SCC 1 . 10. On the contrary, Mr. P.C. Srivastava has relied upon the decision of this Court in Mohd. Arshad Jamal v. State of U.P. and others, 2018 SCC OnLine All 5737 to submit that there can be no adoption by a Muslim, except after following the procedure laid down in the Juvenile Justice (Care and Protection of Children) Act, 2015. 11. This Court has given its anxious consideration to the question involved and heard learned Counsel for the parties. 12. It is mooted by the petitioner that the right to adopt ought to be regarded as one of the facets of the ‘right to life’ guaranteed under Article 21 of the Constitution. He submits that one, who does not have natural progeny, is entitled to adopt, as that gives the adoptive parent(s) a feeling and sense of perpetuation of life. 13. This Court would think much in agreement with the learned Counsel for the petitioner, as the right to procreate has been regarded as a facet of right to life under Article 21 of the Constitution in varied context. In this connection, reference may be made to the report in Jasvir Singh and others v. State of Punjab and others, 2015 Crl.L.J. 2282, where the issue was considered in the context of prisoners by the Punjab and Haryana High Court. One need not dwell upon it further because what is in issue is not the right to procreate, but the right to adopt. 14. Reproduction, no doubt, is the means of perpetuation of any specie of living thing and humans are no exceptions. But, for the refined human mind, the idea of having a child may give some kind of a feeling of perpetuation, an extension of life, after the progenitor is no more. Could this be held true of adoption, where there is no feeling of a bloodline or genetic endowment in the adoptive progeny? So long as modern science did not offer options to humans of having children otherwise than in due course of nature, adoption served as a mechanism to fill-up the void for an individual, who was issueless. Could this be held true of adoption, where there is no feeling of a bloodline or genetic endowment in the adoptive progeny? So long as modern science did not offer options to humans of having children otherwise than in due course of nature, adoption served as a mechanism to fill-up the void for an individual, who was issueless. The uncodified Hindu Law, coming from time immemorial, made adequate provision for adoption and after codification, the Hindu Adoptions and Maintenance Act, 1956 has given the right to adopt, both to a hindu male and a hindu female. 15. This Court does not propose to go into the significance of adoption under the Hindu Religious Scriptures, which is not relevant here. What this Court wishes to emphasize is that dehors any religious signification, the idea of perpetuation is innate to human nature, like any other specie. In the face of any contingency that deprives a human from having a natural progeny, adoption makes up for it. This Court would think that the right indeed would come to any person irrespective of caste, creed, sex or religion, as a facet of his right to life, acknowledged under Article 21 of the Constitution. Of course, the right to adopt, would have to be governed by some kind of a statute, applicable to all citizens. This Court is mindful of the fact that the right to adopt for any person, irrespective of his religious persuasion, has not yet been recognized; neither by the statute nor by judicial acknowledgment. The question arose before the Supreme Court in Shabnam Hashmi (supra), which was a Public Interest Litigation instituted under Article 32 of the Constitution. The outline of the case before the Supreme Court figures in the opening paragraphs of the report of the judgment of their Lordships in Shabnam Hashmi, which reads: “1. Recognition of the right to adopt and to be adopted as a fundamental right under Part III of the Constitution is the vision scripted by the public-spirited individual who has moved this Court under Article 32 of the Constitution. There is an alternative prayer 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 the prime focus of which is the child with considerations like religion, etc. There is an alternative prayer 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 the prime focus of which is the child with considerations like religion, etc. taking a hind seat. 2. The aforesaid alternative prayer made in the writ petition appears to have been substantially fructified by the march that has taken place in this sphere of law, gently nudged by the judicial verdict in Lakshmi Kant Pandey v. Union of India [ (1984) 2 SCC 244 ] and the supplemental, if not consequential, legislative innovations in the shape of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 (hereinafter for short “the JJ Act, 2000”) as also the Juvenile Justice (Care and Protection of Children) Rules promulgated in the year 2007 (hereinafter for short “the JJ Rules, 2007”). 16. In substance, the right for a Muslim to adopt under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 [since repealed and substituted by the Juvenile Justice (Care and Protection of Children) Act, 2015] was recognized by the Court as one created by statute conferring right on a person, irrespective of his/ her religious persuasion to adopt. But, the right to adopt for a Muslim, dehors the provisions of the Juvenile Justice Act, was not acknowledged. Their Lordships also thought that with the march of democracy, the right to adopt for any person, irrespective of his/ her faith, would come to be regarded as a fundamental right. However, they refrained at that time and stage from declaring the right to adopt a fundamental right, part of Article 21. The decisions of the Bombay High Court in Manuel Theodore D'Souza, 1999 SCC OnLine Bom 690 and the Kerala High Court in Philips Alfred Malvin v. Y.J. Gonsalvis and others, 1999 SCC OnLine Ker 5, were not accepted by their Lordships as declarations raising the right to adopt to the level of a fundamental right, that was a concomitant of Article 21 of the Constitution. The following observations of their Lordships of the Supreme Court in Shabnam Hashmi are noteworthy: “13. The following observations of their Lordships of the Supreme Court in Shabnam Hashmi are noteworthy: “13. The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, the Rules and the CARA Guidelines, as notified under the Act. The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the Personal law applicable to him. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by the principles of Personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a Uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date. 14. The writ petitioner has also prayed for a declaration that the right of a child to be adopted and that of the prospective parents to adopt be declared a fundamental right under Article 21 of the Constitution. Reliance is placed in this regard on the views of the Bombay and Kerala High Courts in Manuel Theodore D'Souza, In re [Manuel Theodore D'Souza, In re, (2000) 3 Bom CR 244] and Philips Alfred Malvin v. Y.J. Gonsalvis [Philips Alfred Malvin v. Y.J. Gonsalvis, AIR 1999 Ker 187 ] respectively. The Board objects to such a declaration on the grounds already been noticed, namely, that Muslim Personal Law does not recognise adoption though it does not prohibit a childless couple from taking care and protecting a child with material and emotional support. 15. The Board objects to such a declaration on the grounds already been noticed, namely, that Muslim Personal Law does not recognise adoption though it does not prohibit a childless couple from taking care and protecting a child with material and emotional support. 15. Even though no serious or substantial debate has been made on behalf of the petitioner on the issue, abundant literature including the holy scripts have been placed before the Court by the Board in support of its contention, noted above. Though enriched by the lengthy discourse laid before us, we do not think it necessary to go into any of the issues raised.” 17. Treading the same path that their Lordships of the Supreme Court have shown, this Court would think that it is high time when the legislature ought to act and ensure for every person, irrespective of religion, realization of the right to adopt, recognizing it as one that is an inseparable part of the right to life in its fullest content envisaged under Article 21 of the Constitution. But, this Court is of opinion that it would not be appropriate for us to step ahead and think about declaring adoption a fundamental right for every person by a judicial interpose, because it is not yet very long ago when the Supreme Court considered the question in Shabnam Hashmi. Nevertheless, this Court would strongly suggest to the legislature to consider enactment of an appropriate legislation providing every person, irrespective of his religious persuasion, a right to adopt, considering it a part of the right to life. The same view has been taken by my esteemed brother Sudhir Agarwal in Mohd. Arshad Jamal (supra), where His Lordship held: “8. Now looking into this backdrop, I do not find that adoption in Muslims has been recognized in any Statute so as to confer a right of succession/inheritance in the matter of claiming compassionate appointment upon petitioner. There is an exception, i.e., Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as “Act, 2000”) as amended in 2006 which permits adoption irrespective of religion or other factors. Act, 2000 as amended is an enabling legislation giving a prospective parent, option of adopting an eligible child by following the procedure prescribed by Act, 2000 and Rules framed thereunder. Act, 2000 as amended is an enabling legislation giving a prospective parent, option of adopting an eligible child by following the procedure prescribed by Act, 2000 and Rules framed thereunder. This Statute enables any person, irrespective of religion he professes, to take a child in adoption but such adoption has to be made in accordance with the procedure prescribed under Rules etc., framed thereunder. It is not the case of petitioner that he was adopted by Late Mohd. Jalaluddin by following the procedure laid down under Act, 2000 and, therefore, the same has no application to the case in hand. 9. Even otherwise, it is not disputed before this Court that in Muslim Law, scriptures do not recognize adoption. In Shabnam Hashmi v. Union of India (supra), an attempt was made to seek a declaration from Supreme Court that right to adopt and to be adopted be declared a Fundamental Right under Part-III of Constitution but declining this relief, Court said: “… elevation of the right to adopt or to be adopted to the status of a Fundamental Right, in our considered view, will have to await a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country.” 10. Court further said: “… the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution.” 11. Then Court declined to make such a declaration, hence aforesaid judgment does not help petitioner in any manner and reliance placed thereon is totally misconceived. 12. The aspect of application of adoption in Islamic law came to be considered in Supreme Court of Democratic Socialist Republic of Sri Lanka in Ghouse v. Grouse, (1988) (1) SLR (25). Referring to Tyabji on Muslim Law (4th Ed.) page 208-209, para 228, it was observed, “Adoption is not known to Muslim Law”. 13. Similarly, Mulla's Principles of Mohammedan Law (17th Ed., page 328) states categorically that Mohamedan Law does not recognise adoption. 14. Louis Neil in his book “The Mohammedan Law of Ceylon showing the Principles and Rules of the Distribution of Inheritance” says, “Adoption is not recognised as conferring any right on the children adopted.” 15. 13. Similarly, Mulla's Principles of Mohammedan Law (17th Ed., page 328) states categorically that Mohamedan Law does not recognise adoption. 14. Louis Neil in his book “The Mohammedan Law of Ceylon showing the Principles and Rules of the Distribution of Inheritance” says, “Adoption is not recognised as conferring any right on the children adopted.” 15. In Umar Khan v. Niaz-Ud-Din Khan, (1911) 39 IA 19, it was observed that under general Mohamedan law, an adoption cannot be made. An adopted son has no right of inheritance since the principle of ‘Muslim Law’ based on the Quoran, is that one must be a consanguine relative of the deceased to become entitled to inherit the property of the deceased; there should be actual or natural parentage, not legal parentage over other people's children in order to found a claim for inheritance under the Muslim Law.” 18. Notwithstanding these remarks, this Court may emphasize again that time has arrived when the legislature must step in and free the individual of disabilities arising from personal laws to realize his/ her higher rights as a human being, particularly, what could be a facet of a fundamental right. After all, it is the duty of the State to extend to all persons equal protection of law. As the law stands, particularly, the declaration of it by the Supreme Court in Shabnam Hashmi and by this Court in Mohd. Arshad Jamal, it is difficult for this Court to interfere at this stage of time with the impugned order and hold for the petitioner. 19. Of course, if the petitioner by virtue of being the deceased's brother's son falls into any class of heirs, entitled to inherit from the deceased Smt. Gulenoor Khatoon, it would be open to the petitioner to establish his right in that behalf by suit before a Court of competent jurisdiction arraying the other heirs who could also claim. So far as the impugned order is concerned, this Court is of opinion that there is no infirmity there. 20. This petition fails and is dismissed subject to the above remarks. 21. There shall be no order as to costs.