Christian Couple Wrongly Adopts Under Hindu Adoption Act; Delhi High Court Declares Them 'Adoptive Parents' As They Took Good Care Of Child

The Delhi High Court has given relief to a Christian couple who had looked after a child for six years from her birth, although they had not followed the legal route for adoption.

The couple, who were childless, had adopted the child through an adoption deed executed under the Hindu Adoption and Maintenance Act, despite the fact the said Act is not applicable to Christians. They said that they executed the adoption deed under a "wrong legal advice".

After raising the child for over six years, the couple ran into legal complications when they tried to get a passport for the child as their adopted daughter. In this backdrop, they approached the Delhi High Court.

Although the adoption deed was not valid in law as far as the petitioners were concerned, the High Court declared them as the adoptive parents of the child, having regard to the fact that they had looked after well and that it would be against the welfare of the child to uproot her from her adoptive family.

The Court however observed that Christians could not have executed an Adoption Deed under the Hindu Adoptions and Maintenance Act, 1956 and that the law of the land was carelessly flouted in the case.

"This case reflects how easily it is possible to set at naught the law intended to protect the welfare, well-being and the rights of the minors. A complete go by has been given to the provisions of the Juvenile Justice (Care and Protection of Children) Act, ("JJ Act", for short), whether of 2015 or of 2000." a single judge bench of Justice Asha Menon observed.

However, in order to advance the welfare of the child, the Court declared the child as being fit for adoption and held that the couple had looked after the minor child as a "foster family" since the time the child was handed over to them immediately after birth and that further orders from the Child Welfare Committee were not required.

Facts of the case

The petitioners submitted that a cousin of one of them, one Sister EA, a social worker, had met the biological parents of the minor child, who were migrant workers. On visiting their house, she found that the mother was unable to feed the minor child who was born on December 11, 2014. After taking the child to a pediatrician, it was found that the child was severely malnourished.

The biological parents handed over the child to Sister EA, agreeing for the child to be given in for adoption.  The child was later adopted by the petitioners. An adoption deed was executed under the Hindu Adoption and Maintenance Act.

Difficulties arose when the petitioners sought a passport for the child to enable them to take the child to USA where they were employed. As the passport authorities refused to act on the adoption deed, the petitioners instituted a civil suit seeking a declaration that the child was their legally adopted daughter.

However, the trial court dismissed the suit in 2018 after holding that the adoption deed was void being contrary to the provisions of Section 2(1)(c) read with Sections 5 & 6 of the HAMA, as the biological parents and the adoptive parents are Christians by faith.

Later, the petitioners approached the Central Adoption Resource Authority with a request for issuance of certificate to the effect that the child was legally free for adoption. When the CARA rejected the request, the petitioners approached the Delhi High Court through writ petition.

Directions were also sought to issue the requisite NOC and all other requisite approvals, permissions and certificates, to enable them to take the minor as their adopted child to USA, with a further direction to issue a passport to the child naming the petitioners as her parents.

Christians have no custom of giving and taking in adoption

The High Court held that the CARA's stand cannot be faulted as the adoption deed was not valid in law.

"Christians have no custom of giving and taking in adoption. The "direct adoption" is with reference to Hindus. That is why there is reference to HAMA. Drawing up an adoption deed under HAMA in relation to Christians is not legally valid as held by the Additional Civil Judge (Senior Division), Ferozepur. In reality, no adoption has taken place at all, leave alone prior to 2016", the Court noted.

Christians and Muslims have no option of "direct adoption" and they have to go through the process under the Juvenile Justice Act, the Court added.

"As far as Muslims and Christians are concerned, their personal laws do not recognise adoption. As HAMA excludes them, they cannot seek to adopt a child in terms of that Act, including by means of a registered document recording an adoption. In order to fulfil their desires of having a child through adoption, their only option is to come under the JJ Act".

The petitioners highlighted that the child, who did not know her biological parents, had been with them since 2014 and had fully integrated with their family. The petitioners said that they are giving her good education and support and to disturb the arrangement will not be in the best interests of the child.

The Court however noted that the petitioners' claims have no support of law.

"No doubt, the petitioners have been struggling, but they have only themselves to blame. CARA cannot be blamed for sticking to the Rules. The parties being Christians could not have executed an Adoption Deed under the HAMA. There is no court order declaring the minor to be the adopted child of the petitioners".

At the same time, the Court analyzed the case from the standpoint of the child's welfare. In this regard, the Court referred to the reports of the Child Welfare Committee.

Analyzing the facts of the case, the Court observed thus:

"The overall picture that emerges on the basis of all these materials is that the child has not been trafficked. Though no formal surrender was made by the biological father before the CWC at Ferozepur, he has affirmed on oath before the Additional Civil Judge (Senior Division), Ferozepur that he had handed over the child for adoption voluntarily. Though there is no valid adoption of the child, the petitioners and the parents of the petitioner No.2 have taken good care of the child."

While holding that the acts of Sister EA was "not proper", the Court said that it does not appear that she was indulging in trafficking of child for the adoption. She appeared to have been helping her cousin, petitioner number 2.

Observing that to relegate the petitioners back to the CWC will further delay the matter, the Court made the following declarations :

(i) That the child is a child who is fit for adoption;

(ii). that the petitioners have looked after the minor child as a "foster family" since the time the minor was handed over to them immediately after birth and no further orders from the CWC are required;

(iii). the child is now more than six years old and is being well taken care of by the petitioners and the parents of the petitioner No.2 and there is no cause to remove the child from their charge and custody;

(iv). that the petitioners are fit and qualified to seek adoption of  their foster child as enabled by the new Rules;

(v). That the child be given in adoption to the petitioners.

The Court therefore held that the petitioners were fit and qualified to seek adoption of their foster child as enabled by the new Rules and that the child be given in adoption to them.

"Within the parameters of the law, this Court declares that the petitioners, namely, JS and MS are the "adoptive parents" of the minor child, namely, JJS and the minor child JJS is the "adopted child" of the petitioners, named above, with effect from the date of this order and shall be vested with all the rights, privileges and responsibilities that are attached to a biological child."

The Court also directed CARA to issue the requisite NOC and that it shall not insist on compliance of provisions of Section 59(3) in the JJ Act dealing with NRIs or OCIs. 

"Additionally, CARA shall also ensure that for a period of two years, an authorized agency, recognized by it for this purpose, submits the Home Study Reports at quarterly and half yearly intervals to CARA."

Additionally, the Court also directed CARA to ensure that all persons working in or with Child-line and CCIs, are made fully aware of the adoption process so that nobody is misguided.

On the larger aspect of child trafficking and provisions of the Acts, the Court observed thus:

"Child trafficking is a pernicious practice that the State has sought to address by various legislative means. Since trafficking occurs also for the purpose of adoption, in addition to all other reasons, actions, internationally and nationally, have been taken, to prevent it happening, by prescribing the method and process for adopting a child. Despite that, people, who are well educated, circumvent all such provisions for their private gain".

The Court kept the names of the parties anonymous in the judgment.

Title: JS & ANR. v. CENTRAL ADOPTION RESOURCE AUTHORITY & ANR

Click Here To Read Order