The Delhi High Court has in a judgement dated August 31 directed the Government of India to place a report before the High Court pertaining to the manner and mode of creating a permanent mechanism to deal with inter-country adoptions under the Hindu Adoptions Maintenance Act (HAMA) within a period of two months.
A single-judge bench of Justice Pratibha M. Singh held until a proper permanent framework is put in place, the court directed the Central Adoption Resource Authority(CARA) to act as the Authority for the purposes of enabling inter-country adoptions under HAMA.
The High Court further directed any adoption that takes place under HAMA and a NOC is required for any purpose, including for issuance of a passport or visa, upon an application being filed before CARA, a special committee would be appointed to verify the following particulars:
- a) The background and antecedents of the biological parents or family background report and source verification of the child (or CWC certificate).
- b) Verify the consent of the biological parents and that of the child, if needed based upon the age and maturity, for the adoption.
- c) Details of any religious ceremony conducted.
- d) Details of the adoption deed and its genuinity/validity.
- e) Court order, if any, recognizing the adoption.
- f) Home Study Report of the prospective adoptive parents with support documents.
- g) Permission letter from receiving country or permission letter from Embassy of the receiving country in case of OCI/Foreigner.
The court further stated the committee would then record its satisfaction and issue the NOC within a month. CARA would also be entitled to monitor the progress of the child for two years from the date of arrival of the adopted child in the receiving country.
The High Court further directed CARA to create a specific form on its portal incorporating the above guidelines within a period of four weeks and to carry out the necessary changes in its website, in accordance with the conclusions in this judgment.
Report of Advocate Sanjoy Ghose, Amicus Curiae
- a. Neither the Juvenile Justice(Care and Protection of Children) Act, 2015, the Adoption Regulations, 2017 or HAMA prescribe any procedure for inter-country direct adoptions between nonrelatives.
- b. For adoptions under HAMA, the adoption could be amongst relatives, however HAMA does not have any provision in respect of inter-country adoptions.
- c. There is a conflict between Sections 56(3) and 56(4) of the JJ Act, 2015 and ambiguity as to whether HAMA adoptions would be covered under Section 56(4) or not.
- d. In respect of direct inter-country adoptions under HAMA, safeguards ought to be laid down to ensure that direct inter-country adoptions are not misused for exploitation of children.
- e. Amendments are required in HAMA and/or the JJ Act, 2015.
The High Court was hearing three connected matters namely, W.P.(C) 279/2019 R.K & Anr v. Central Adoption Resource Authority & Ors, W.P.(C) 10064/2019 Baby H.A Minor through S.K v. Union of India & Ors and W.P.(C) 11168/2020J.S.S v. Central Adoption Resource Authority & Ors.
In W.P.(C) 279/2019 R.K & Anr v. Central Adoption Resource Authority & Ors:
In this case, the adoption deed dated 23rd September, 2016 was duly registered. The ACJ, Senior Division, Mukerian, Punjab, vide judgment and decree dated 5th April, 2017, hadalready granted a decree of declaration recognizing the adoption. The petitioner required a NOC from CARA for application of Spanish Visa.
The High Court has directed upon verification of the documents, NOC shall be issued within one month.
This petition was filed and argued by Advocate Preeti Yadav, Advocate Anubhav, Advocate Yashwant Singh Yadav and Advocate M.A Karthik.
W.P.(C) 10064/2019 Baby H.A Minor through S.K v. Union of India & Ors:
In this petition, the adoption is by the real uncle (chacha) of the child. A registered adoption deed has been executed between the adoptive parents and the biological parents on 26February, 2018 in Basaidarapur, Delhi. As of 2018, the adoptive parents have returned to the U.S., leaving behind the adopted child with their family. The adoptive child has finished her Class X exam and wants to go to USA for further studies and required a NOC from CARA for the visa.
Since the adoptive father is the paternal uncle of the child, theHigh Court instructed the Committee to verify the background of the biological parents. After interacting with them as also with the adoptive parents through any online platform, after verifying the documents, the NOC shall be granted by CARA within a period of one month.
This petition was filed and argued by Advocate Zeeshan Khan.
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W.P.(C) 11168/2020 J.S.S v. Central Adoption Resource Authority & Ors:
In this case, the registered adoption deed is dated 22 July, 2018 has been signed between the biological and the adoptive parents and the child has been living with the adoptive mother in Aligarh, Uttar Pradesh, while the adoptive father lives in USA, the petitioner required NOC from CARA for their adoptive child’s visa.
The High Court instructed CARA to verify the background of the biological parents and the adoptive parents, as also the genuinity of the registered adoption deed, if a home study report is required, the same shall be called for. Upon verifying the documents, the NOC shall be granted by CARA within a period of one month.
This petition was filed and argued by Advocate Vishwendra Verma.
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