Guidelines, 2015 provides that a child is surrendered when
the parents wish to relinquish him/her to the CWC and a
formal act takes place by which the child is surrendered by
the natural parents to the CWC. Once the surrender is
complete, the parents have no role in the future of the child
and the CWC alone decides the best course for the child‟s
future before the child is adopted.
d. A child given in direct adoption cannot be termed as a
“surrendered child”, since there is no relinquishment of the
child, by the parents to the CWC.
e. The Supreme Court in Lakshmi Kant Pandey (supra) as
well as Anokha (supra) and the High Court of Delhi in Dr.
Jaswinder Singh Bains (supra) and Swaranjit Kaur (supra)
have categorically and conclusively held that all intercountry
direct adoptions are outside the scope of the rules
set out for adoptions under the Act, 2000 and the
Rules/Guidelines framed there-under.
f. In view of the aforesaid binding precedents, there is no
scope for incorporation of the concept of parens patriae in
inter-country direct adoption cases under the Act, 2000,
specially when the adoption deed has been declared to be
legal, valid, genuine and binding by a competent court.
g. Rule 26 of the Guidelines, 2011 is a procedural provision
and it does not advance the case of the respondent-CARA.
h. In view of CARA, Canada's approval for adoption and its
favourable home study report as well as the decree of
declaration passed by Additional Civil Judge (Senior
Division), Zira, this Court is of the opinion that the
requirements of Articles 5 and 17 of the Hague Convention
are satisfied in the present case.
i. Consequently, in cases of inter-country direct adoption like
the present case, NOC from respondent- CARA is not
required under the Act, 2000 and the Guidelines, 2011.
j. The Regional Passport Officer/MEA cannot insist on
issuance of an NOC by respondent-CARA before
processing the petitioner's application for issuing a Passport
to the adopted child.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 5718/2015 & CM APPLs. 28508/2015, 19662/2016
PKH .
v
CENTRAL ADOPTION RESOURCEAUTHORITY
THROUGH THE SECRETARY
Date of Decision : 18th July, 2016
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. The popular belief is that adopting one child will not change the
world; but for that child - the world will change. However, the pace at
which our statutory authorities process an application for adoption, shows as
if they believe only in the first part of the statement, namely, that adopting a
child will not change the world.
2. This Court takes judicial notice of the fact that domestic adoptions
have dropped by a half, hitting a five-year low with only 3011 children
being adopted by the Indian parents in 2015-2016. During the same period,
only 666 children were adopted by foreign parents. For a country having a
population of approximately one billion three hundred twenty-seven million,
the aforesaid statistics reveal an abysmal rate of adoption.
3. It is pertinent to mention that present writ petition has been filed
seeking a direction to the respondent-CARA to grant a 'No Objection
Certificate' (NOC) to the petitioner for taking her adopted child namely,
M.H. (hereinafter referred to as 'the child') to Canada.
4. While learned counsel for the petitioner stated that the issues raised in
the present petition were no longer res integra as they stood fully covered by
the judgments of the Apex Court and this Court, learned counsel for the
respondent-CARA submitted that in Dr. Abha Agrawal v. Central Adoption
Resource Agency, 2013 SCC Online Del 325, a learned single Judge of this
Court while adjudicating two writ petitions on inter-country adoptions had
despite his own judgment in Swaranjit Kaur vs. Union of India, W.P. (C)
29/2012 decided on 11th September, 2012 held that there was some
ambiguity on whether inter-country direct adoptions would fall within the
purview of the Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as 'Act, 2000'). Learned counsel for the respondentCARA
pointed out that the learned single Judge had framed the following
questions of law and referred the matter to the Division Bench:-
"(i). Whether the term 'surrendered child' will include those
children who are directly taken in adoption from their
biological parents without the intercession of any specialized
agency or child welfare committee?
(ii) Whether, in case of direct adoption, the 2011 Guidelines
and the provisions of Section 41(3) and (4) of the JJ Act are
applicable?
(iii). If the answer to issue no.(i) and (ii) is in the affirmative, to
what extent the 2011 Guidelines would apply to direct
adoptions?
(iv) Can the court direct State to discharge its duty in its
capacity as parens patriae to carry out an investigation so as to
safeguard the interest and/or
rights of the child conferred on him under Article 21 of the
Constitution of India?
(v). Could respondent nos.2 and 3 insist on issuance of a NOC
by CARA, before processing the application of the petitioner(s)
for issuing a passport to the adopted child?"
5. The Division Bench, by its order dated 18th May, 2015, dismissed one
petition for default in appearance and noted that in the other writ petition as
respondent-CARA had issued an NOC, the petitioner did not press for any
relief. Consequently, the questions of law were left open by the Division
Bench.
6. Learned counsel for respondent-CARA submitted that as the Division
Bench had not answered the reference, the petitioner's argument that the
issues raised in the present writ petition were no longer res integra was illfounded
and the respondent-CARA was justified in not granting an NOC to
the petitioner. Since the respondent-CARA has been taking an identical
stand in a number of connected writ petitions, this Court directed that the
present matter be treated as the lead matter and appointed Mr. Amit Sibal,
Senior Advocate, as the Amicus Curiae.
7. In a bid to preserve the privacy of the parties, this Court directs that in
the order that is to be uploaded, initials of the parties should only be
mentioned.
RELEVANT FACTS
8. The relevant facts of the present case are that the petitioner and her
husband are both Canadian citizens who have been residing in Canada for
the last twenty years. The petitioner is stated to be a reputed solicitor by
profession who is employed in Alberta, Canada, where she owns both
movable and immovable properties.
9. In the writ petition, it is averred that the petitioner has a male child
and was desirous of balancing her family by adopting a girl child. It is
stated that the petitioner decided to adopt a girl child from India as it is her
cultural and ethnic base.
10. It is also averred that thereafter the relatives of the petitioner in her
ancestral village in Punjab got in touch with another family relative, P.K.,
who was living in a nearby village. Both the natural and adoptive families
are stated to have known each other for years and belong to the same
ancestral village.
11. The adopted child was born on 24th September, 1999. The
biological/natural mother of the child is a widow whose husband had
unfortunately expired on 05th December, 1999. The natural mother has two
other children - one daughter and one son - apart from the adopted child.
12. It is further averred that on 18th April, 2007, the natural mother gave
her daughter, M, in adoption to the petitioner after satisfying herself with
regard to the character, financial position and family background of the
petitioner. It is contended that all the essential requirement of a valid
adoption were adhered to and the ceremony of giving and taking the child in
adoption was performed in the presence of the relatives and friends of both
the families.
13. Pursuant thereto, a Deed of Adoption dated 26th April, 2007 was
executed and registered in the office of the Sub-Registrar, Patiala, Punjab.
The petitioner even got the name of the adopted child changed to "M.H. ".
14. After registration of the Adoption Deed and completion of all the
formalities with regard to adoption, the petitioner with intent to take the
adopted child to her resident country, Canada, applied for the immigration of
the child to the High Commission of Canada.
15. However, the High Commission of Canada directed the petitioner to
obtain an NOC from respondent-CARA's office for processing of the
immigration application as according to it an NOC from respondent-CARA
is imperative under the Hague Convention to which India is a signatory.
16. It is the case of the petitioner that on 16th May, 2011, she submitted
her application with all the relevant documents to CARA's office at New
Delhi, but the officer refused to acknowledge her application. The petitioner
therefore, wrote various e-mails to CARA, but her requests were not
acceded to.
17. It is pertinent to mention that the adoption of the child by the
petitioner was approved as per the Hague Convention by the
Canada and a favourable Home Study Report was issued on 29th November,
2010. In fact, the petitioner was approved for adoption on 30th November,
2010.
18. The complete set of documents from CARA, Canada with the
approval of the adoption as per the Hague Convention were sent to the office
of the respondent-CARA in May 2011. However, it is averred that when the
petitioner later approached the respondent-CARA, to check the status of her
application, no response was provided by respondent-CARA.
19. In the meantime, the petitioner also obtained a declaratory decree
dated 03rd February, 2012 from the Court of Additional Civil Judge (Senior
Division), Zira, Punjab, in her favour declaring the Adoption Deed executed
by the petitioner and the natural mother of the child as valid and legal. The
relevant portion of the Additional Civil Judge's judgment in Case No. 120-1
dated 31.5.2011/6.6.2011 dated 03rd January, 2012, which has attained
finality, is reproduced hereinbelow:-
"11. In view of the evidence led on record by the plaintiffs, it
is held that adoption of plaintiff no.3 by plaintiffs no.1 and 2
after adoption ceremony has been duly proved on record. The
adoption deed Ex.P2 bears the signatures of plaintiffs no.1 and
2 and defendant. Defendants were natural guardian of plaintiff
no.3 at the time of execution and registration of adoption deed.
The father of plaintiff no.3 had already died and his death
certificate is on record as Ex.P5. The adoption of plaintiff no.3
is also not disputed by the defendants and only grudge of
defendants is that plaintiff no.3 is not being looked after
properly by the plaintiffs no.1 and 2 and due to said reason,
they are asserting their right to take back plaintiff No.3 from
plaintiffs no.1 and 2. It is held that since the adoption of
plaintiff no.3 by plaintiffs no.1 and 2 has been proved on
record, defendants cannot be allowed to repudiate the same.
Accordingly, issues no.1 and 2 are decided in favour of the
plaintiffs.
Relief.
12. In view of my findings given on above said issues, suit of
the plaintiffs for declaration and permanent injunction as
prayed for in the head note of the plaint is decreed without any
order to costs. Decree sheet be prepared accordingly. File be
consigned to the record room.
Pronounced in open court
On 3.1.2012
Sd/-
Raman Kumar
Addl. Civil Judge (Sr. Division)
Zira
20. It is the petitioner's case that as a matter of last resort on 19th May,
2015, she filed the present writ petition before this Court praying for issue of
a writ, order or direction to respondent-CARA to grant an immediate
'Clearance/NOC' in respect of her pending application.
21. Only on 02nd May, 2016, respondent-CARA filed a counter affidavit.
In its response, respondent-CARA stated that it was designated as the
Central Authority for the purposes of the Hague Convention on 16th July,
2003 and that pursuant to the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to as 'Act, 2015'), they are a
statutory authority.
22. Respondent-CARA stated that under the Act, 2015, all adoptions have
to be undertaken through it and that adoption not undertaken through it, is
punishable under Section 80, if the child is taken out of the country without
a valid court order.
23. Respondent-CARA further stated that Schedule 8 of the Guidelines
Governing Adoption of Children, 2015 (for short 'Guidelines, 2015')
stipulates the documents needed for adoption and as only some of the
documents were furnished by the petitioner, her request was not considered
by respondent-CARA's NOC Committee.
ARGUMENTS ON BEHALF OF THE PETITIONER
24. Mr. Karan Singh Thukral, learned counsel for the petitioner submitted
that it is with regard to only the 'child in need of care and protection' and/or
the 'child found to be in conflict with law', that the rehabilitation process
under the Act, 2000 or Act, 2015 has to be followed.
25. According to him, the rehabilitation of the child under the aforesaid
Acts via adoption does not include an adoption of a child directly from the
natural parents under the Hindu Adoptions and Maintenance Act, 1956
(hereinafter referred to as 'HAMA, 1956'). He pointed out that the giving
and taking of the child comes within the ambit of the personal laws of the
Hindus and is commonly known as the Datta Homam ceremony which is
prevalent since time immemorial. He stated that even the Statement of
Objects of the Act, 2015 as amended recently explicitly lays down the
purpose of the provisions and rules framed under the Act, 2015 which reads
as under:-
"An Act to consolidate and amend the law relating to children
alleged and found to be in conflict with law and children in
need of care and protection by catering to their basic needs
through proper care, protection, development, treatment, social
re-integration, by adopting a child-friendly approach in the
adjudication and disposal of matters in the best interest of
children and for their rehabilitation through processes
provided, and institutions and bodies established, hereinunder
and for matters connected therewith or incidental thereto."
26. Mr. Thukral pointed out that the Act, 2015 defines the three
categories of child as below:-
"Section 2(1): “abandoned child” means a child deserted by
his biological or adoptive parents or guardians, who has been
declared as abandoned by the Committee after due inquiry;
xxx xxx xxx
Section 2(42): “orphan” means a child—
(i) who is without biological or adoptive parents or legal
guardian; or
(ii) whose legal guardian is not willing to take, or capable of
taking care of the child;
xxx xxx xxx
Section 2(60): “surrendered child” means a child, who is
relinquished by the parent or guardian to the Committee, on
account of physical, emotional and social factors beyond their
control, and declared as such by the Committee;
27. Mr. Thukral also referred to the other provisions of the Act, 2015,
which are reproduced hereinbelow:-
"Section 1(4):Notwithstanding anything contained in any other
law for the time being in force, the provisions of this Act shall
apply to all matters concerning children in need of care and
protection and children in conflict with law, including--
(i) apprehension, detention, prosecution, penalty or
imprisonment, rehabilitation and social re-integration of
children in conflict with law;
(ii) procedures and decisions or orders relating to
rehabilitation, adoption, re-integration and restoration of
children in need of care and protection.
xxx xxx xxx
Section 2(13): "child in conflict with law" means a child who is
alleged or found to have committed an offence and who has not
completed eighteen years of age on the date of commission of
such offence.
Section 2(14): "Child in need of care and protection" means a
child-
(i) who is found without any home or settled place of abode and
without any ostensible means of subsistence; or
(ii) who is found working in contravention of labour laws for
the time being in force or is found begging, or living on the
street; or
(iii) who resides with a person (whether a guardian of the child
or not) and such person—
(a) has injured, exploited, abused or neglected the child or has
violated any other law for the time being in force meant for the
protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and
there is a reasonable likelihood of the threat being carried out;
or
(c) has killed, abused, neglected or exploited some other child
or children and there is a reasonable likelihood of the child in
question being killed, abused, exploited or neglected by that
person; or
(iv) who is mentally ill or mentally or physically challenged or
suffering from terminal or incurable disease, having no one to
support or look after or having parents or guardians unfit to
take care, if found so by the Board or the Committee; or
(v) who has a parent or guardian and such parent or guardian
is found to be unfit or incapacitated, by the Committee or the
Board, to care for and protect the safety and well-being of the
child; or
(vi) who does not have parents and no one is willing to take
care of, or whose parents have abandoned or surrendered him;
or
(vii) who is missing or run away child, or whose parents cannot
be found after making reasonable inquiry in such manner as
may be prescribed; or
(viii) who has been or is being or is likely to be abused,
tortured or exploited for the purpose of sexual abuse or illegal
acts; or
(ix) who is found vulnerable and is likely to be inducted into
drug abuse or trafficking; or
(x) who is being or is likely to be abused for unconscionable
gains; or
(xi) who is victim of or affected by any armed conflict, civil
unrest or natural calamity; or
(xii) who is at imminent risk of marriage before attaining the
age of marriage and whose parents, family members, guardian
and any other persons are likely to be responsible for
solemnisation of such marriage;"
xxx xxx xxx
Section 56(3) Nothing in this Act shall apply to the adoption of
children made under the provisions of the Hindu Adoption and
Maintenance Act, 1956.
Section 59: Procedure for Inter-country adoption of an orphan
or abandoned or surrendered child--(1) If an orphan or
abandoned or surrendered child could not be placed with an
Indian or non-resident Indian prospective adoptive parent
despite the joint effort of the Specialised Adoption Agency and
State Agency within sixty days from the date the child has been
declared legally free the adoption, such child shall be free for
inter-country adoption:
Provided that children with physical and mental disability,
siblings and children above five years of age may be given
preference over other children for such inter-country adoption,
in accordance with the adoption regulations as may be framed
by the Authority.
xxx xxx xxx
28. Consequently, according to Mr. Thukral, the Act, 2015 solely deals
with orphan or abandoned or surrendered child. He emphasised that a child
directly taken in adoption from the natural parents does not fall within the
definitions of "child in conflict with" or "child in need of care and
protection". In support of his submission, he relied upon the judgments of
the Supreme Court in Lakshmi Kant Pandey Vs. Union of India, (1984) 2
SCC 244 and Anokha (Smt.) Vs. State of Rajasthan and Others, (2004) 1
SCC 382.
29. Mr. Thukral further submitted that in the absence of the
implementation of the Uniform Code for adoption, the Hague Convention
cannot be applied as it conflicts with the personal/domestic laws like the
HAMA, 1956. He contended that the Hague Convention wanted the
signatory countries to implement a uniform adoption law in their respective
countries, but as India failed to implement the same, the Convention is not
applicable to adoption of a child directly from the natural parents.
ARGUMENTS ON BEHALF OF THE RESPONDENT-CARA
30. Per contra, Mr. Akshay Makhija, learned counsel for respondentCARA
submitted that in the case of adoption, especially inter-country
adoption, it is of prime importance to ascertain that the child is legally free
for adoption and that parents who are adopting the child are suitable and
eligible to adopt. He stated that it is extremely important that the foreign
country to which the child is being taken accepts such adoption as valid
under their local laws, so that the adopted child is conferred with all rights
that are due to the child qua the adoptive parents.
31. Mr. Makhija pointed out that the Hague Convention was signed by
India on 09th January, 2003, ratified on 06th June, 2003 and came into effect
in India from 01st October, 2003. According to him, the import of the Hague
Convention is that the transfer of a child to a receiving State can only be
carried out if the requirement of Article 17 of the Hague Convention is
satisfied. Articles 5 and 17 of the Hague Convention are reproduced
hereinbelow:-
A. ARTICLE 5
An adoption within the scope of the Convention shall take place only
if the competent authorities of the receiving State -
a) have determined that the prospective adoptive parents are eligible
and suited to adopt;
b) have ensured that the prospective adoptive parents have been
counselled as may be necessary; and
c) have determined that the child is or will be authorised to enter and
reside permanently in that State.
B. ARTICLE 17
"Any decision in the State of origin that a child should be
entrusted to prospective adoptive parents may only be made if -
a) the Central Authority of that State has ensured that the
prospective adoptive parents agree;
b) the Central Authority of the receiving State has approved
such decision, where such approval is required by the law of
that State or by the Central Authority of the State of origin;
c) the Central Authorities of both States have agreed that the
adoption may proceed; and
d) it has been determined, in accordance with Article 5, that
the prospective adoptive parents are eligible and suited to
adopt and that the child is or will be authorised to enter and
reside permanently in the receiving State."
32. Mr. Makhija submitted that the Central Authority of India, as
mandated by the Hague Convention, is respondent-CARA and it must
certify that the child is adoptable. He emphasized that the receiving State
under the Hague Convention would not accept the adoption as valid if the
same is not certified by respondent-CARA. He stated that even in the
present case the request for NOC from the respondent-CARA came from the
Canadian High Commission.
33. Mr. Makhija submitted that the Act, 2015 had come into force on 15th
January, 2016 and its Section 56(4) mandates that all inter-country adoptions
shall be done only as per its provisions and the Adoption Regulations
framed by CARA. According to him, the definition of 'inter-country
adoption' in Section 2(34) is all inclusive and does not exclude the cases of
direct adoption of Indian children involving NRIs/PIOs/Foreigners. He
further submitted that inter-country adoption is a category in itself and all
inter-country adoptions have to be certified by CARA in accordance with
Section 68 of the Act, 2015, without which the receiving State would not
accept the same as a valid adoption in terms of the Hague Convention. The
provisions of Act, 2015 referred to by Mr. Makhija are reproduced
hereinbelow:-
"2(34) “inter-country adoption” means adoption of a child
from India by nonresident Indian or by a person of Indian
origin or by a foreigner;
xxx xxx xxx
56(4) All inter-country adoptions shall be done only as per the
provisions of this Act and the adoption regulations framed by
the Authority.
xxx xxx xxx
68. The Central Adoption Resource Agency existing before the
commencement of this Act, shall be deemed to have been
constituted as the Central Adoption Resource Authority under
this Act to perform the following functions, namely:—
(a) to promote in-country adoptions and to facilitate inter-State
adoptions in co-ordination with State Agency;
(b) to regulate inter-country adoptions;
(c) to frame regulations on adoption and related matters from
time to time as may be necessary;
(d) to carry out the functions of the Central Authority under the
Hague Convention on Protection of Children and Cooperation
in respect of Inter-country Adoption;
(e) any other function as may be prescribed."
34. Without prejudice to the applicability of the Act, 2015, he submitted
that even if the petitioner was to contend that the adoption is governed by
the Act, 2000, the petitioner would still be obliged to obtain an NOC from
CARA in accordance with Rule 26 of the Guidelines Governing Adoption of
Children, 2011 (for short 'Guidelines, 2011'), as inter-country adoption is a
category in itself and the NOC of CARA is mandatory. The said Rule 26 is
reproduced hereinbelow:-
"26. Procedure for Inter-country Adoption as per the Hague
Convention on Inter-country Adoption, - (1) The authorities and
agencies involved in Inter-country adoption process shall be, -
(a) Court of Competent Jurisdiction who can pass Order for
Adoption;
(b) Central Adoption Resource Authority (CARA);
(c) Central Authority in the receiving Country (CA);
(d) Indian Diplomatic Missions Abroad;
(e) Foreign Diplomatic Missions in India;
(f) Authorised Foreign Adoption Agency (AFAA);
(g) State Adoption Resource Agency (SARA) or Adoption
Coordinating Agency (ACA);
(h) Recognised Indian Placement Agency (RIPA); and
(i) Adoption Recommendation Committee (ARC).
(2) The authorities and agencies referred to in sub-paragraph
(1) shall be guided by the procedure laid down for intercountry
adoption in these Guidelines which draws strength
from the Hague Convention on Inter-country Adoption-1993
provided in Schedule IX."
35. Mr. Makhija emphasised that India being a signatory and having
ratified the Hague Convention, its provisions would apply with respect to all
inter-country adoptions including the direct adoptions from natural parents.
36. Mr. Makhija pointed out that the Madras High Court in the case of
Mr. Tim Cecil and Mrs. Steffi Cecil in O.P. No.247/2011 decided on 13th
June, 2011, has opined that the right of a child as a human being is an
independent right which flows from his right to life as contained in Article
21 of the Constitution of India. He submitted that the Madras High Court
after noting the judgment of Anokha (supra) and the provisions of the
Hague Convention held that the decision taken by the natural parents,
however, bona fide, need not always be an informed decision and the
minimum safeguard that would be adopted is to call for a Home Study
Report so that the decision taken by the natural parents to handover their
child to the petitioners herein, could be accepted to be a decision taken in the
best interest of the child.
37. Mr. Makhija also pointed out that in the case of Lakshmi Kant
Pandey (supra), the Supreme Court recognized that in inter-country
adoption, it is necessary to bear in mind that the primary object of giving the
child in adoption is the welfare of the child and great care has to be
exercised in permitting the child to be given in adoption to foreign parents,
lest the child be neglected or abandoned by the adoptive parents in the
foreign country or the adoptive parents may not be able to provide the child
a life of moral or material security or the child may be subjected to moral or
sexual abuse or forced labour etc.
38. Mr. Makhija lastly submitted that the Supreme Court in Anokha
(supra) has held that Lakshmi Kant Pandey (supra) did not deal with a case
of a child living with his natural parents. It was emphasized that the Courts,
while dealing with an application under Section 7 of the Guardians and
Wards Act, 1890 (hereinafter referred to as 'Act, 1890') have to be satisfied
that the child is being given in adoption voluntarily after being aware of the
implications of adoption, un-induced by any extraneous reasons such as
receipt of money etc., and the adoptive parents have produced evidence in
support of their suitability and finally that the arrangement would be in the
best interest of the child.
SUBMISSIONS ON BEHALF OF THE LEARNED AMICUS CURIAE
39. Mr. Amit Sibal, learned Amicus Curiae submitted that in the present
case as the Adoption Deed had been executed under HAMA, 1956 before
the Act, 2015 came into force on 15th January, 2016, the Act, 2015 will not
apply.
40. According to Mr. Sibal, the legal regime prevailing prior to the
coming into force of the Act, 2015 namely the Act, 2000 and rules and
guidelines promulgated thereunder neither prohibited inter-country direct
adoption nor did it cover the same. He submitted that the Act, 2000 covered
adoption of orphan or abandoned or surrendered child only--none of which
included inter-country direct adoption.
41. He pointed out that Section 16 of HAMA, 1956 creates a presumption
of validity in favour of an adoption deed. Section 16 states, "Whenever any
document registered under any law for the time being in force is produced
before any Court purporting to record an adoption made and is signed by
the person giving and the person taking the child in adoption, the Court
shall presume that the adoption has been made in compliance with the
provisions of this Act unless and until it is disproved".
42. Mr. Sibal emphasised that since the adoption in the present case had
taken place under HAMA, 1956 and not under the Act, 2000, there was no
requirement of NOC from respondent-CARA.
43. Learned Amicus Curiae further submitted that the issue of
requirement of an NOC by respondent-CARA in cases of direct adoption
had been emphatically answered in negative by the High Court of Madras in
the case of Mr. Frank M. Costanzo and Mrs. Deborah L. Connelly vs. The
Regional Passport Officer, MANU/TN/2703/2010. In the said case, the
Madras High Court held that requirement of NOC by CARA for the
issuance of Passport under the Passport Manual in case of inter-country
direct adoption was without authority of law and that there existed no legal
basis for imposing such a condition. The High Court further held that the
insistence of NOC by CARA was contrary to the decisions of the Apex
Court in Lakshmi Kant Pandey (supra) and Anokha (supra). The High
Court also held that when the CARA itself could not impose any condition
in respect of direct adoption from natural parents, the Passport Authority
certainly could not impose any condition that would restrict the issuance of
Passport to the adopted child. The Court directed the Passport Authorities to
issue the Passport to the adopted child without any delay.
44. He pointed out that as per the notification of the Ministry of External
Affairs dated 19th March, 2015, the requirement of NOC by CARA for the
issuance of Passport to inter-country adopted child, only applies to an
orphan or abandoned child and cases of inter-country direct adoption do not
form part of the said notification.
45. Mr. Sibal submitted that adoptions in India were earlier governed by
the Act, 2000, but are now governed by the Act, 2015 which came into force
on 15th January, 2016. Section 111(1) repeals the Act, 2000.
46. Learned Amicus Curiae fairly stated that in view of Sections 56(2),
56(3) and 60 of the Act, 2015 two views are possible as to whether Act,
2015 applies to inter-country direct adoption or not. He submitted that
though the Act, 2015 allows for inter-country adoption for an orphan or
abandoned or surrendered child and inter-country relative adoption, yet it
does not specifically provide for inter-country direct adoption which is not
in the nature of adoption mentioned in Sections 59 and 60 of the Act, 2015.
He also pointed out that the Standing Committee Report on the Juvenile
Justice (Care and Protection of Children) Bill, 2014, which was eventually
enacted after modification as the Act, 2015, suggests that the Standing
Committee did not contemplate a prohibition on inter-country direct
adoption.
COURT'S REASONING
47. Having heard the learned counsel for parties, this Court is of the view
that it is essential to trace the development of the law relating to child rights
and adoption nationally as well as globally.
GENEVA DECLARATION OF THE RIGHTS OF THE CHILD, 1924
48. The first major declaration on child rights was the „Geneva
Declaration of the Rights of the Child‟ which was adopted on 26th
September, 1924 by the League of Nations. This Declaration recognized that
a child who cannot fend for himself/herself must be protected and
rehabilitated inasmuch as it stated that “the orphan and the waif must be
sheltered and succored”. This initial Declaration indicated that it was the
society‟s responsibility to ensure that the interest of a child who does not
have a natural family, is safeguarded.W.P.(C) 5718/2015 Page 21 of 38
DECLARATION OF THE RIGHTS OF THE CHILD, 1959
49. On 20th November, 1959, the General Assembly of the United
Nations, by Resolution 1386(XIV) adopted the „Declaration of the Rights of
the Child‟. By this Declaration, the best interest of the child was sought to
be protected. Importantly, in Principle 9, it was declared that a child should
be protected from “neglect, cruelty and exploitation”.
DECLARATION ON SOCIAL AND LEGAL PRINCIPLES RELATING TO
THE PROTECTION AND WELFARE OF CHILDREN, WITH SPECIAL
REFERENCE TO FOSTER PLACEMENT AND ADOPTION NATIONALLY
AND INTERNATIONALLY, 1986
50. On 03rd December, 1986, the General Assembly of the United Nations
in its 95th Plenary Meeting adopted the „Declaration on Social and Legal
Principles relating to the Protection and Welfare of Children, with Special
Reference to Foster Placement and Adoption Nationally and
Internationally‟. While Articles 13 to 24 dealt with adoption, Articles 17 to
24 dealt specifically with inter-country adoption. Article 13 stated that the
objective of adoption was to ensure that a child who did not have a natural
family is taken care of in a family setting. Article 17 stipulated that when the
option of placing a child either in foster care or adoption in the child‟s home
country was unavailable, then inter-country adoption should be resorted to
with the singular objective of ensuring that a child can grow up in a family.
Article 18 stated that national governments should endeavour to enact laws
for regulating inter-country adoptions. Article 20 stated that a competent
authority must be created in States in order to oversee inter-country
adoptions. Article 22 stated that inter-country adoptions should only be
made once the child is legally free for adoption and that all the necessary
protocols have been satisfied in order to facilitate the adoption. Article 23
stated that the inter-country adoption should be considered as legally valid in
the two countries which are involved.
CONVENTION ON THE RIGHTS OF THE CHILD, 1989
51. On 20th November, 1989, the General Assembly of the United Nations
adopted the „Convention on the Rights of the Child‟. This Convention
comprehensively dealt with the rights and entitlements available to a child.
Article 21 of the Convention referred to adoption. It stipulated that in
matters of adoption, the best interest of the child is the most important
factor. Article 21(a) stipulated that adoption of the child must be undertaken
through competent authorities in order to preserve the sanctity of the
adoption process. Article 21(b) dealt with inter-country adoption. It
provided that inter-country adoption must be allowed when no one is willing
to take care of the child and that in the child‟s home country, an adoptive
family could not be found. Articles 21(c), 21(d) and 21(e) stipulated that
sufficient safeguards must be in place in order to protect a child who is
given in inter-country adoption. India acceded to this Convention on 11th
December,1992.
CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION
IN RESPECT OF INTER-COUNTRY ADOPTION, 1993 AT HAGUE
52. The most important international convention on inter-country
adoption is the subsisting „Convention on Protection of Children and Cooperation
in respect of Inter-Country Adoption‟, which concluded on 29th
May,1993 at The Hague, Netherlands. Its Article 1 states that the purpose
and aim of the Convention is to preserve the best interest of the child and to
ensure recognition of inter-country adoption between contracting states.
Articles 4 and 5 provide for the circumstances in which an adoption can be
said to be within the scope of the Convention. Article 6(1) provides that in a
Contracting State, a Central Authority must be created to perform the duties
imposed by the Convention. Articles 14 to 21 relate to the manner in which
inter-country adoption can be undertaken and the role of the Central
Authority in that regard. Article 23 provides that when the competent
authority of a state certifies that the adoption has taken place as per the
Convention, the certification should be recognized in the other Contracting
States. India signed this Convention on 09
th January, 2003 and ratified it on
06th June, 2003.
53. Interestingly, a reading of certain Articles in the Convention shows
that the Convention recognizes the operation of different laws on adoption
within a country. Article 6(2) provides, inter-alia, that where a State has
more than one system of law which relate to adoptions, then the Contracting
State can create several Central Authorities for the different systems of law.
Article 28 provides that the Convention does not affect a law which
stipulates that the adoption must occur in the home country of a child. Also,
Article 37 provides that when a State has several systems of law which
apply to different groups, the specific law is to be considered when a
reference is made to the State‟s law.
54. It should be noted that according to the „Conclusions and
Recommendations‟ of the Special Commission of the practical operation of
the Hague Convention of 29 May 1993 on protection of Children and Cooperation
in Respect of Inter-country Adoption, one of the recommendations
made is that direct and independent adoptions are incompatible with the
Convention (see Para. 1(g) and Paras. 22, 23, 24). However, it should be
noted that it is only a recommendation and not binding as the Convention is.
55. At this stage, it is also necessary to take into account domestic
legislative and jurisprudential developments that took place with regard to
inter-country direct adoptions.
IN 1984, SUPREME COURT DELIVERED A COMPREHENSIVE AND
SEMINAL JUDGMENT IN THE CASE OF LAKSHMI KANT PANDEY
(SUPRA)
56. In 1984, the Supreme Court in the case of Lakshmi Kant Pandey
(supra) delivered a comprehensive and seminal judgment on the question of
inter-country adoptions.
57. Acting on a letter petition filed by an individual complaining of
questionable practices adopted by agencies which gave children in intercountry
adoptions, the Supreme Court decided to comprehensively review
the process by which children were given in inter-country adoptions. The
decision begins by noting that there were two legislative attempts at passing
an Adoption Bill which did not fructify. The first was „The Adoption of
Children Bill, 1972‟ which had been introduced in the Rajya Sabha but was
not passed. The second effort was made in 1980, when the „Adoption of
Children Bill‟ was introduced in the Lok Sabha, but which remained
pending.
58. Prior to the Lakshmi Kant Pandey (supra) judgment, in the absence
of any law on adoption, foreign parents who desired to adopt an Indian child
would make an application under the Guardians and Wards Act, 1890 to be
appointed as the guardian of the child after which the foreign parents would
have the right to take the child out of the country. To regulate this process,
the High Courts of Bombay, Gujarat and Delhi had even put in place certain
procedural rules.
59. The Supreme Court noted that when the child is abandoned or when a
parent wants to relinquish a child and give the child up for adoption, then an
effort should be made to find prospective adoptive parents within India. If
no one was willing to adopt such a child in India, then the child could be
given to foreign parents since it would be wiser to give the abandoned,
orphaned or surrendered child for inter-country adoption rather than
condemning him/her to a life in an orphanage or an institution without any
family support.
60. The Supreme Court also held that since the best interest of the child
has to be protected scrupulously, safeguards must be put in place to ensure
that inter-country adoptions are not resorted to by persons who would
mistreat the child. Thus, the Supreme Court held that in order for foreign
parents to adopt a child from India, the parents‟ application for adoption
should be sponsored by a child welfare agency in the parent‟s home country
which agency must prepare a Home Study Report of the parents. Further, a
Child Study Report should also be prepared. The Supreme Court noted that
a Central Adoption Resource Agency must be created to oversee the process
of inter-country adoption and ensure the sanctity of the adoption process is
observed. With regard to the surrender of a child, natural parents who want
to surrender their child to an agency or institution must receive proper
assistance and be made aware of the consequences of their decision.
61. Significantly, the Supreme Court judgment was emphatic on the point
that the procedural and substantive safeguards which it laid down were
inapplicable to cases where the foreign parents directly adopt the child from
the natural parents. The Supreme Court in Lakshmi Kant Pandey (supra)
held as under:
"11. We may make it clear at the outset that we are not
concerned here with cases of adoption of children living with
their biological parents, for in such class of cases, the
biological parents would be the best persons to decide whether
to give their child in adoption to foreign parents. It is only in
those cases where the children sought to be taken in adoption
are destitute or abandoned and are living in social or child
welfare centres that it is necessary to consider what normative
and procedural safeguards should be forged for protecting
their interest and promoting their welfare."
62. The justification provided for this exception was that when the child
is abandoned or destitute or when the child is living in a welfare centre then
there is no one to protect his/her interests. By contrast, in the case of direct
adoptions, the natural parents still live with the child and they are best suited
to judge whether it would be in the best interests of the child to be given up
for inter-country adoption. Therefore, the decision is categorical in holding
that inter-country direct adoptions are outside the ambit of the decision.
THE ANALYSIS OF THE ACT, 2000, RULES, 2007 AND GUIDELINES,
2015
63. The Act, 2000 was enacted pursuant to India‟s obligations under the
Convention on the Rights of the Child. In 2006, this Act was amended.
Inter alia, Section 2(aa) was introduced to define adoption as “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.” The provision relating to adoption, and sub-sections (2) to (4)
of Section 41 were also substituted in 2006. The amended Section 41(2)
provides that adoption is a means to rehabilitate a child who is an orphan or
abandoned or surrendered. Sections 41(3) to 41(5) provide the procedure
that has to be adhered to for the adoption of such a child.
64. The Juvenile Justice (Care and Protection of Children) Rules, 2007,
(for short 'Rules, 2007') prescribes the process for adopting a child in Rule
33.
65. Rule 33 (1) provides that the purpose of adoption is to ensure that a
child is placed in a permanent substitute family when such a child is not
fortunate to receive the care from his/her natural parents. Rule 33 (2)
provides that the guidelines issued by the Central Adoption Resource
Agency shall govern all adoptions. Rule 33 (3) pertains to the process to be
followed for the adoption of an orphan or abandoned child.
66. Rule 33 (4) pertains to the adoption of “surrendered children”. A
reading of this rule reveals that a child who is directly adopted from the
natural parents cannot be considered as a “surrendered child”. Rule 33
(4)(a) provides that a “surrendered child” is the one who has been declared
by the Committee i.e. the Child Welfare Committee ('CWC') as
“surrendered” in order to also declare the child legally free for adoption.
Further, such “surrender” is contemplated only in certain compelling
conditions, such as a child born out of a non-consensual relationship [Rule
33(4)(a)(i)]. Rule 33 (4)(b) provides that the CWC must counsel the parents
to see whether they would like to keep the child, and if they are unwilling to
do so, the child may be kept in foster care (Section 42, Rules 34, 35, 36) or
sponsorship (Section 43, Rule 37) may be arranged for him/her. Rule 33
(4)(c) read with Rule 33 (4)(e) provides that a deed of surrender has to be
executed by the parents before the CWC. Rule 33 (4)(f) provides that after
the time period for reconsidering the surrender of the child elapses [Rule 33
(4)(d)], the surrendered child may be declared legally free for adoption.
67. Section 41 read with Rule 33 suggests that a “surrendered child”
denotes a child who has been relinquished by the natural parents and that the
parents seek to irreversibly terminate the parental-child relationship. Upon
the termination of this relationship which has to be done under the
supervision of the CWC, the child is “surrendered” to the care and custody
of the CWC who is then responsible for the care of the child.
68. The abovementioned provisions make it amply clear that direct
adoption cannot be considered as a process by which the child becomes a
“surrendered child” because in the case of direct adoption, the natural
parent gives the child in adoption directly to the adoptive parents without
surrendering the child to the CWC and/or any third entity or agency. In
direct adoptions, unlike the case of surrender, there is no termination of the
parental-child relationship in favour of the CWC or any third agency which
then decides whether or not to give the child in adoption.
69. Further, a reading of the Guidelines, 2015, issued by the Ministry of
Women and Child Development on 17th July, 2015 under the Act, 2000 also
makes it clear that a surrendered child is not a child given in direct adoption.
These Guidelines were made pursuant to Section 41 (3) of Act, 2000 and
replace the Guidelines, 2011. In para 2 of the Note to the Guidelines, it is
stipulated that, "These Guidelines shall govern the adoption procedure of
orphan, abandoned and surrendered children in the country from the date of
notification and shall replace the Guidelines Governing the Adoption of
Children, 2011".
70. Certain Rules of the Guidelines, 2015 are also important. Rule 2(2)
defines an abandoned child to mean an “unaccompanied and deserted child
who is declared abandoned by the Child Welfare Committee after due
inquiry”. Rule 2(23) defines an orphan to mean a child who does not have
parents or legal guardian, or whose parents or legal guardians are unwilling
to take care of the child or are incapable of taking care of the child. Rule
2(33) defines a surrendered child to mean a “child, who in the opinion of the
Child Welfare Committee, is relinquished on account of physical, emotional
and social factors beyond the control of the parent or legal guardian”. A
reading of Rule 2(33) reveals that the definition of a surrendered child
cannot apply to cases of direct adoptions because in inter-country direct
adoptions there is no element of relinquishment to the CWC, or a third entity
or an agency.
71. A holistic reading of the Act, 2000, the Rules, 2007 and the
Guidelines, shows that a surrendered child means a child who is given to the
CWC after which it is only the CWC who has a say with regard to the
welfare of the child. After the surrender, the parents no longer have any role
to play and it is the CWC which decides the best course of action for the
child. Consequently, a reading of Act, 2000 read with the Rules, 2007
shows that neither the Act, 2000 nor the Rules made there-under cover intercountry
direct adoptions.
THE SUPREME COURT'S INTERPRETATION OF THE ACT, 2000
72. In Anokha (supra) the Supreme Court specifically examined the
applicability of Guidelines on Adoption to inter-country direct adoptions and
the role of respondent-CARA. In that case, an Italian couple wished to adopt
an Indian child and to that end filed an application under the Guardian and
Wards Act, 1890 in the court of the District Judge at Alwar. The District
Judge rejected the application, inter alia on the ground that the Central
Government had issued Guidelines for the „Adoption of Indian Children‟
which required an authorised agency in the adoptive parents‟ home country
to sponsor an adoption application and issue a no-objection certificate. The
District Judge held that in its absence, the application of the Italian couple
had to be rejected. This decision was affirmed in appeal and the High Court
ruled that in addition to the adoption application being sponsored by an
agency in the foreign country, CARA must also issue a no-objection
certificate. It is in this context that the matter was carried forward to the
Supreme Court in appeal.
73. The Supreme Court in Anokha (supra) following the decision of
Lakshmi Kant Pandey (supra) held that inter-country direct adoptions are
not amenable to the rigours of the procedural safeguards since the natural
parents are best positioned to judge what is in the best interests of the child.
Crucially, the Supreme Court reiterated the distinction which Lakshmi Kant
Pandey (supra) drew between a surrendered child and the giving of a child
in direct adoption by noting that the said judgment would apply to a child
who is surrendered or relinquished to an institution and “not to cases where
the child is living with his/her parent/parents and is agreed to be given in
adoption to a particular couple who happen to be foreigners”.
74. The Supreme Court held that nothing in the Indian jurisprudence on
the subject suggests that the adoption guidelines such as the one before the
Court could apply to inter-country direct adoptions. The Supreme Court
further held that the need for CARA to furnish an NOC, the application for
adoption needing to be sponsored by a recognised agency, and the adoption
needing to be undertaken by a recognised Voluntary Coordinating Agency,
only arises when “… there is the impersonalized attention of a placement
authority…”.
75. The Supreme Court reiterated the conclusion that the extant adoption
guidelines are inapplicable to cases of inter-country direct adoptions.
However, it stated that when the adoptive parents make an application under
the Guardian and Wards Act to be appointed as the guardians of the child,
the Court must be satisfied that the adoption is voluntary, that the consent of
the natural parents to give up the child for adoption has not been obtained
through questionable means, and that the adoptive parents must present
evidence as to their overall suitability to adopt a child.
76. In conclusion, the Supreme Court held in Anokha case (supra) that
since there was sufficient material on record which attested to the suitability
of the adoptive parents to take care of the child, the Italian couple were
appointed as the child‟s guardian.
77. From a reading of Anokha (supra), it is clear that the Supreme Court
declared that the extant Guidelines on adoption as they existed at that time
would be inapplicable to cases of inter-country direct adoptions and that
CARA would have no jurisdiction over such adoptions. However, it held
that it otherwise be established that the inter-country direct adoption has
taken place in a bona fide manner and that the adoptive parents are suitable
for taking care of the child.
DELHI HIGH COURT'S INTERPRETATION OF ACT, 2000
78. The question of whether inter-country direct adoptions are amenable
to the jurisdiction of CARA has also been examined by this Court. W.P.(C) 5718/2015 Page 32 of 38
79. In Dr. Jaswinder Singh Bains v. CARA, W.P (C) 8755/2011 decided
on 13th February, 2012, the Petitioners, had directly adopted a child from a
couple and also executed a duly registered adoption deed. The Civil Judge
(Sr. Division), Patiala issued a declaratory decree to the effect that the
Petitioner was the guardian of the child under Section 7 of the Guardians
and Wards Act. Since the Petitioners resided in Canada, they wished to take
the child with them, but the Family Services of Greater Vancouver sought a
NOC from CARA. Since CARA did not respond to the Petitioner‟s request
for a NOC, the parents filed a writ petition against CARA.
80. Following Lakshmi Kant Pandey (supra) and Anokha (supra), the
High Court ruled that when inter-country adoptions are made directly from
natural parents, a NOC from CARA was not required, since the procedural
rules were inapplicable to cases of direct voluntary adoptions.
81. In Swaranjit Kaur (supra) the Petitioners therein adopted a child,
executed an adoption deed and obtained a declaratory judgment from the
competent civil court. In the said case, a NOC had been issued by CARA
and since the Petitioners wanted to take the child back to Alberta, Canada,
the Alberta Government inquired from CARA India as to the authenticity of
the NOC that had been issued. Meanwhile, the Canadian Immigration
Department wrote to the Petitioner stating that CARA had informed the
Immigration Department that the NOC in question had not been issued by
them. The Petitioners filed a writ petition under Article 226 in the Delhi
High Court after they failed to obtain a response from CARA on the issue of
the NOC.
82. This Court held in the said judgment that this was a case of intercountry
direct adoption by a relative and following the decision of
Jaswinder Singh Bains (supra) respondent-CARA had no role whatsoever
to play with respect to direct adoptions.
83. In view of aforesaid binding judgments of the Apex Court and this
Court, the judgment of the Madras High Court in Mr. Tim Cecil and Mrs.
Steffi Cecil (supra) offers no assistance to the respondent-CARA.
APPLICABILITY AND ANALYSIS OF ACT, 2015
84. This Court is in agreement with the submission of the learned Amicus
Curiae that as the adoption deed in the present case had been executed
before the Act, 2015 came into force, it would be governed by the Act, 2000
and not by the Act, 2015.
85. Since arguments were advanced with regard to the scope and
interpretation of Act, 2015, this Court clarifies that though there is some
ambiguity as to whether the Act, 2015, applies to inter-country direct
adoptions, yet it is of the opinion that the scope of Section 60 of the Act,
2015, should be expanded to cover all forms of inter-country direct
adoptions. This interpretation would advance the best interest of the child
whose family wishes to give him/her in adoption and also ensure that the
sanctity of the adoption process is respected and the best interest of the child
is scrupulously safeguarded. This Court may mention that in exercise of its
writ jurisdiction, it has the power to expansively interpret a provision of a
statute in order to achieve the objects and reasons which the law seeks to
achieve and to reach injustice wherever it is found. [See Dwarka Nath Vs.
ITO, (1965) SCR 536]
86. The respondent-CARA should ensure that the applications for
approval/NOC are processed in a child friendly manner and that too, in a
strict time frame. After all, incorporation of safeguards should not lead to
harassment and delay.
87. This Court suggests that the respondent-CARA should consider the
option of appointing a panel of Psychologists, Lawyers as well as NGOs in
all the States so that the Child Study Report and Home Study Reports in the
case of domestic adoptions, if applicable, in India are prepared scientifically
in a time bound manner. The local police as well as Anti Trafficking Unit of
the Ministry of Home Affairs should be asked to give their response to the
Adoption application within a strict time frame. If response is not received
from statutory/government authority within the time-frame prescribed, it
should be presumed that said authority has no objection to the adoption.
ANALYSIS OF FACTS OF THE PRESENT CASE
88. In view of the Home Study Report as well as the Dossier prepared by
the Central Adoption Authority of Canada in accordance with the Hague
Convention, 1993, as well as the decree of declaration passed by the
Additional Civil Judge (Senior Division), Zira that the petitioner is the
adoptive parent of the minor and the natural mother has no right to claim the
child as her daughter and adoption deed is legal, valid, genuine and binding,
this Court is of the opinion that the minor M.H. is legally free for adoption.
89. The decision of Mr. Tim Cecil (supra) cited by the learned counsel for
respondent-CARA is inapplicable to the present case as a favourable Home
Study Report of CARA, Canada, has been furnished by the petitioner.
90. This Court in view of the CARA Canada's report, is also of the
opinion that the adopted child would get all rights qua the adoptive parents
in her new country of residence.
ANSWERS TO THE ISSUES RAISED IN DR. ABHA AGRAWAL (SUPRA)
AS WELL AS IN THE PRESENT CASE AND CONCLUSIONS
91. The survey of the domestic law and international conventions leads to
the following conclusions:
a. As the adoption deed in the present case has been executed
under HAMA, 1956, before the Act, 2015 came into force
and the adoption deed has been held to be legal, valid and
genuine by the Additional Civil Judge (Senior Division),
Zira in a civil suit filed by the adoptive parents against the
natural mother, the adoption in the present case is governed
by the Act, 2000 and not by Act, 2015.
b. The Act, 2000 read with the Rules, 2007 and the
Guidelines, 2015 expressly lays down a procedure for
adoption only in relation to a child who is an orphan or
abandoned or surrendered, and does not cover inter-country
direct adoption.
c. The Act, 2000 read with the Rules, 2007 and the
Guidelines, 2015 provides that a child is surrendered when
the parents wish to relinquish him/her to the CWC and a
formal act takes place by which the child is surrendered by
the natural parents to the CWC. Once the surrender is
complete, the parents have no role in the future of the child
and the CWC alone decides the best course for the child‟s
future before the child is adopted.
d. A child given in direct adoption cannot be termed as a
“surrendered child”, since there is no relinquishment of the
child, by the parents to the CWC.
e. The Supreme Court in Lakshmi Kant Pandey (supra) as
well as Anokha (supra) and the High Court of Delhi in Dr.
Jaswinder Singh Bains (supra) and Swaranjit Kaur (supra)
have categorically and conclusively held that all intercountry
direct adoptions are outside the scope of the rules
set out for adoptions under the Act, 2000 and the
Rules/Guidelines framed there-under.
f. In view of the aforesaid binding precedents, there is no
scope for incorporation of the concept of parens patriae in
inter-country direct adoption cases under the Act, 2000,
specially when the adoption deed has been declared to be
legal, valid, genuine and binding by a competent court.
g. Rule 26 of the Guidelines, 2011 is a procedural provision
and it does not advance the case of the respondent-CARA.
h. In view of CARA, Canada's approval for adoption and its
favourable home study report as well as the decree of
declaration passed by Additional Civil Judge (Senior
Division), Zira, this Court is of the opinion that the
requirements of Articles 5 and 17 of the Hague Convention
are satisfied in the present case.
i. Consequently, in cases of inter-country direct adoption like
the present case, NOC from respondent- CARA is not
required under the Act, 2000 and the Guidelines, 2011.
j. The Regional Passport Officer/MEA cannot insist on
issuance of an NOC by respondent-CARA before
processing the petitioner's application for issuing a Passport
to the adopted child.
EPILOGUE
92. Delay in adoption means that the minor has to live with uncertainty
and insecurity. Hugh Jackman rightly observed that, "adoption is a blessing
all round when it's done right".
93. In the present case, despite having been adopted more than nine years
ago, the minor has till date not been integrated with her adoptive family in
her new country of residence. In view of the Additional Civil Judge's decree
dated 03rd February, 2012, which has attained finality the minor cannot even
return to her natural mother.
94. The minor today has less than a year, before she attains majority.
Consequently, it is essential that the passport is issued to the minor
expeditiously.
RELIEF
95. Accordingly, the present writ petition and applications are disposed of
with a direction to respondent-CARA to grant an NOC to the petitioner for
taking her adopted child namely, M.H., to Canada within a period of two
weeks. Ministry of External Affairs/Regional Passport Officer is also
directed to issue her a passport within two weeks thereafter.
96. Before parting with the judgment, this Court places on record its
appreciation for the services rendered by Mr. Amit Sibal, learned Amicus
Curiae. He with his usual scholarship lifted the level of debate and
painstakingly researched the law of adoption.
97. This Court only hopes that the petitioner and the minor at the end of
the adoption process feel what an adoptive mother and founder President of
Joyful Heart Foundation felt that adoption was a bumpy ride - very bumpy;
but, it was worth the fight.
98. This Court lastly directs respondent-CARA to streamline and simplify
the procedure for adoption under the Act, 2015 in accordance with
suggestions given in paras 86 and 87 of this judgment. After all,
respondent-CARA must appreciate what a U.S. President once said,
"Belonging to a family is a natural and vital component of life and every
child deserves to be a member of a loving and nurturing family."
MANMOHAN, J
JULY 18, 2016
No comments:
Post a Comment