Legal Vacuum In Respect Of Adoptions Carried Out By Christian Parents Prior To 2016: Delhi High Court Seeks Response From Centre, CARA
The Delhi High Court has granted protection to a US-based Indian Christian couple, apprehending legal action for adopting a child in India in the year 2014, under the Hindu Adoptions and Maintenance Act, 1956. A Single Bench of Justice Pratibha M. Singh noted that prior to coming into effect of the Juvenile Justice Model Rules in 2016, there was no law enabling/ governing adoption of...
The Delhi High Court has granted protection to a US-based Indian Christian couple, apprehending legal action for adopting a child in India in the year 2014, under the Hindu Adoptions and Maintenance Act, 1956.
A Single Bench of Justice Pratibha M. Singh noted that prior to coming into effect of the Juvenile Justice Model Rules in 2016, there was no law enabling/ governing adoption of a child by intending Christian parents.
Taking into account the submissions made by the Petitioner's counsel that their ought to be a mechanism for enabling the adoption of a Christian child, the Bench observed,
"The present petition raises an issue of enormous importance as it relates to a legal vacuum in respect of adoptions carried out prior to the coming into force of the Juvenile Justice (Care and Protection of children) Model Rules, 2016, framed under the Juvenile Justice (Care and Protection of Children) Act, 2015, in respect of a child born to Christian parents, as in the present case."
On being informed that the child in question is in complete protection and care of the adoptive parents, the Bench granted interim protection to the couple and their relative who assisted in the adoption process.
The Court said,
"The welfare of the child is paramount in such cases and the validity of the rejection of the NOC by CARA is to be examined by the Court.
… List on 22nd April, 2021. In the meantime, no coercive measures shall be taken pursuant to the letter dated 2nd March, 2020 against the Petitioners, the child, their relatives, or any person who facilitated the adoption of Ms. JJS by the Petitioners."
The NOC referred to above pertains to permission for issuance of passport in name of the child in question.
Background
In the facts of the case, the Petitioners had adopted the child in December 2014 from Ferozpur District of Punjab, though a cousin working as Coordinator of Social Work, and had sought NOC from the Central Adoption Resource Authority (CARA) to obtain a passport for the child.
The prayer for NOC was rejected by the authority and it proceeded to take steps for initiating legal action against the adoptive parents, the relative who helped in the adoption, and also the grand parents of the adopted child, with whom the child is presently residing in Kerala.
The above said action appears to have been initiated in the backdrop of an order passed by the Court of the Civil Judge, Senior Division, Ferozepur, refusing to declare parenthood of the adoptive parents vis-à-vis the child.
The said order was passed on the ground that the impugned adoption was carried out under the Hindu Adoptions and Maintenance Act, 1956, which does not apply to Christians.
Arguments
The case of the Petitioners in the instant writ petition is that merely because the adoption deed was registered under HAMA, ought not to be used to invalidate the legality of the adoption.
The counsel appearing for the Petitioners submitted that the child is happily living with her grandparents and is in complete protection and care of the adoptive parents, and initiation of action by CARA would cause enormous prejudice to the Petitioners.
The counsel further submitted that the manner in which the authorities are proceeding is contrary to law. He relied upon a judgment of the Delhi High Court in PKH v. Central Adoption Resource Authority (WP(C) 5718/2015), to argue that there has to be a mechanism in place for enabling the adoption of the Christian child.
It was argued that in absence of any other statute governing Christian adoptions, the adoption was registered under the provisions of the Hindu Adoptions and Maintenance Act, 195 in front of the village sarpanch.
Order
The Court has issued notices to the Union of India and CARA, seeking their replies in the matter within four weeks.
Liberty is granted to the Petitioners to file their Rejoinder within two weeks thereafter.
The matter is fixed for hearing on April 22, 2021.
Advocates Samar Bansal, Kartik Nagarkatti and Sachin Mishra appeared for the Petitioners.
Case Title: JS & Anr. v. CARA & Anr.
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