Rights Of Adopted Children Of Citizens Can't Be Marooned: Karnataka HC Directs CARA To Consider Granting NOC For Child Adopted From Non-Hague Convention Country

A single judge bench of Justice M Nagaprasanna allowed the petition and said, “The Union of India not to restrict its magnanimity to issuance of a support letter; it should stretch for issuance of an approval or a no objection under the Regulations, for the reason that, it is a signatory to the Hague Convention. Even though the adoption has not happened under the Hindu Adoptions and Maintenance Act, and in a country which is not a signatory to Hague Convention, but adoption has happened, the rights of a child of Indian citizens, who have adopted, cannot be left marooned.”

It is stated that the petitioners between 2011 and 2018 were residents of Uganda and later shifted to Kenya in 2019 held Indian passports since they have not renounced Indian citizenship.

It is stated that during the time they were staying in Uganda, the petitioners became desirous of adopting a child and after following all due procedures took steps under law in Uganda to get a child which matched them. The child who was taken in adoption on 12-08-2014.

It is stated that the High Court of Uganda in Family division granted guardianship of the child in favour of the petitioners as in 2015 and it was declared by the concerned Court at Uganda that the petitioners are adoptive parents of the child and were granted all consequential rights over the child.

The petitioners then desired for the adoption to become formal in India and applied before the CARA to grant legal status in India for the said adoption since both the petitioners were Indian citizens. It is argued that this is not acceded to by accepting or rejecting in answer to mails, and led to the petitioner's approaching the court.

The petitioners argued that inter-country adoption is a recognized norm under the Hague Convention of 1995. It was stated that Uganda was not a signatory to the Hague Convention and therefore CARA Regulations or the Juvenile Justice Act did not impede the process of adoption to be regularised in India when the child is at the receiving country under the Hague Convention.

Further, it was argued that India being a signatory to the Hague Convention cannot deny regularisation of adoption and the lacunae in the law could be filled up by an order of the Court, as it is a circumstance that has never arisen before.

The respondents submitted that the Government did not want to jeopardise the rights of the petitioners or render the child illegal without legalising the adoption.

It was argued that the parents would be issued a support letter, which would be enough in the circumstances for necessary entry and exit into the country. Moreover, it was stated that if the procedure is appropriately followed, a no-objection certificate for such adoption would also be issued by the competent authority.

The bench referred to provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and noted that Section 58 of the Act deals with the procedure for adoption by Indian prospective adoptive parents living in India. It also noted that Section 60 deals with intercountry relative adoption. The situation that has emerged in the case at hand does not figure in any of the provisions of the Act, but figures in the Adoption Regulations, it stated.

It observed that the petitioners were not asking for legalising an illegal adoption but for recognition of a legalised adoption under the regulations of the nation. Court said:

"Therefore, it becomes necessary to iron out the creases even in the Regulations by harmonising the provisions of the Act and the Regulations to accept such adoption and direct issuance of a no objection or approval of such adoption.”

It added, “Ironing out the creases by the constitutional Courts of the provisions of law as promulgated, without disturbing the content of the statute, is permitted exercise of judicial review, as the law makers at the time of making the law would not have envisaged a situation of the kind that is generated in the case at hand.”

It further stated that the support letter that the Government of India is willing to grant will place the petitioners and the child neither here nor there, as the support letter had its own limitations. It said that a support letter is for the issuance of passports in case of in-country adoption but the present case was not intercountry adoption or in-country adoption; but is cross-border adoption. 

It noted that if the rights of the parties have been conclusively determined by a foreign court, those orders would become implementable through the Courts of the nation, and said:

"If the petitioners' rights are determined and they are as of today citizens of this Country, the orders would undoubtedly ensure to the benefit of the petitioners. The petition thus succeeds. Therefore, the petitioners are entitled to the relief that they have sought for in the petition.”

Accordingly, it directed the Central Adoption Resource Authority to consider the representation of the petitioners submitted on 08-06-2023, by email and pass appropriate orders, redressing their grievance, by grant of a No Objection Certificate in accordance with law, within six weeks.

Appearance: Advocate Sameer Sharma, for Petitioners.

Deputy Solicitor General of India H.Shanthi Bhushan, for Respondents.

Citation No: 2024 LiveLaw (Kar) 149

Case Title: Ravi Kumar & ANR AND Central Adoption Resource Authority & Others

Case No: Writ Petition 17967 OF 2023