The judgment by Justice Christopher Allan in the case of “MH” – as the child is now known – is the first by a New Zealand court to formally recognise the legal status of Pakistani guardianship. In other words, it is the first case of adoption between Pakistan and New Zealand.
Two days after he was born in Karachi, MH’s birth parents gave him to their close friends, Pakistan-born New Zealand citizens Iqbal Sharif and Sara Sami.
The Pakistan Family Court has issued a certificate of guardianship, formally recognising the donation.
The New Zealand immigration authority (INZ) refused MH a visa, saying that what had occurred in Pakistan was not adoption as it was understood in New Zealand law.
However, Pakistan does not recognise adoption.
In a closely argued ruling, Justice Allan considered how Pakistani Islamic guardianship law should be translated into New Zealand legal terms and ruled in favour of the adopted parents.
Within minutes, Mr Sharif reapplied for a visa for his son and he rang his wife.
“She was so excited, oh my God, this is what we wanted,” Mr Sharif said.
He was not angry that he had to go through the courts. “I just wanted justice, and we got it.”
The family would reunite before the end of December.
According to one of Mr Sharif’s lawyers, Hardeep Singh, the case had religious significance for the family.
“The case was heard the day after [9 September], the end of the Muslim holy month of Ramadan, and the decision was delivered on 18 November, the day after New Zealand Muslims observed the Muslim festival of Eid al-Adha.
“The family had offered its prayers on both of these occasions, and the decision therefore also has some religious significance for the family.”
The couple have been married since 1994 and could not have children. A friend promised them MH when he was born in May.
The Auckland couple were there when he was born but Mrs Sami has since been in Karachi with him, unable to come home because of the visa refusal.
“Our family has been separated since this time and this has caused us an enormous amount of stress,” Mr Sharif said.
Justice Allan said the family wanted a child from their own background so he could be brought up in accordance with their beliefs and cultural values.
In Islam, it was “an act of considerable grace and of resulting beneficial religious significance for those who give up a child as a gift to childless relatives or friends”.
The day after MH was born, Pakistani authorities issued a birth certificate in which Mr Sharif and Mrs Sami were named as guardians.
There was no reference to birth parents.
INZ objected and the Social Welfare Department in Karachi issued a certificate in which they said that, while adoption did not exist in Pakistan, guardianship complied with laws of “any civilised country”.
Justice Allan accepted evidence that private adoption arrangements were recognised as customary law in Pakistan and Muslim personal law.
“Although Pakistan’s legal system, based on the Sharia, does not recognise adoption in the strict legal sense, nevertheless it recognises a status which is remarkably close to the common law notion of adoption,” the judgment said.
“Muslim precepts forbid the taking of any step which has the effect of altering family genealogy or denying ancestry. That consideration appears to lie at the heart of a slightly different approach to questions relating to the permanent transfer of responsibility for the raising of children.”
Justice Allan said he accepted that what happened in Pakistan was the equivalent of an adoption order in New Zealand.
Source: IslamToday