Inter-Country Adoptions: Delhi High Court Asks Centre To Submit its Report On A Permanent Mechanism To Deal With Inter-Country Adoptions

The Delhi High Court has directed the Secretary, Ministry of Women and Child Development, Government of India to file a report before it regarding the manner and mode of creating a permanent mechanism to deal with inter-country adoptions under Hindu Adoptions & Maintenance Act, both direct and indirect, within a period of two months.

In order to ensure the welfare of the adopted children and to provide a timely mechanism for the biological/adoptive parents as also the child, in view of the experience of Central Adoption Resource Authority(CARA) in dealing with inter country adoptions, the court directed CARA to act as the Authority for the purposes of enabling inter country adoptions under HAMA.

Since there existed no procedure under CARA for adoptions under HAMA, a shortened procedure that existed in respect of adoptions which were effected prior to the coming into force of the JJ Act, 2015 could be followed for issuance of an NOC in case of inter country adoptions which are already recognized under HAMA, said the Court.

A Single Judge Bench of Justice Pratibha M Singh further noted that there were several errors on the website of CARA in respect of HAMA adoptions. In this regard, it directed:

"CARA shall carry out corrections in its website and place a report before this Court within eight weeks; c. CARA shall also frame guidelines for the processing of NOCs for inter-country adoptions under HAMA and make available forms for this purpose on the portal."

The Court added that the draft guidelines and the timelines for activating the portal should be placed on record by means of a status report within two months.

It was further opined that whenever any inter-country adoption takes place under HAMA and a NOC was 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 particulars. Details of the special Committee constituted to deal with HAMA adoptions was also directed to be specified in the report.

"The Committee would then record its satisfaction and issue the NOC within one 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 order adds.

These developments came in a judgment where the Court was dealing with three cases relating to the international adoption of Indian children.

In all three cases, the children, as also their biological parents were in India but the adoptive parents have settled abroad. The adoptions were carried out under the provisions of the Hindu Adoptions & Maintenance Act, 1956 (HAMA) but certain challenges were faced in the movement of the child abroad, including in obtaining passports and visas for the adopted children. 

The issue that arose before the adoptive parents was that the procedure for adoption had not been completed and they would need to obtain a NOC from CARA.

The Court delved into an interpretation of provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 along with the Hindu Adoption and Maintenance Act, 1956. Issues with regard to the mechanism that was to be adopted by the adoptive parents and the child to enable the child to travel abroad and live with the adoptive parents, in accordance with the applicable laws and Conventions were also dealt with.

CGSC Gaurang Kanth appearing for CARA relied upon Articles 1, 2, 4, 5, 14, 15, 16 and 17 of the Convention on Protection of Children and Co-Operation in respect of Intercountry Adoption, 1993 to argue that the said Convention contemplated a proper procedure to enable inter-country adoption. 

He added that the Hague Convention had a very strict procedure for inter-country adoption. The entire purpose of the Hague Convention is that the authorities in both countries ought to be ad idem on the adoption process and procedure, he submitted.

It was stated on behalf of CARA that after amendments took place in 2015 with respect to Juvenile Justice (Care and Protection of Children) Act, 2000, specifically, the amendments in Section 41(3) and other related amendments, a decision in respect of inter-country adoption was yet to be taken. Kanth added that none of the procedures under the JJ Act, 2015 had been fulfilled.

The Court also took note of the report submitted by Amicus Curiae, Senior Advocate Sanjoy Ghose who submitted as under:

a. Neither the JJ Act, 2015, the Adoption Regulations, 2017 or HAMA prescribe any procedure for inter-country direct adoptions between non-relatives;
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

Court's Findings:

A perusal of Section 56 of the JJ Act, 2015 showed, as per the Court, that it applied only in respect of orphans, abandoned and surrendered children. Thus, if the biological parents themselves were giving the child in adoption, the provisions of Chapter VIII of the JJ Act, 2015 would not be applicable at all, unless the adoption is between relatives under Section 60 of the JJ Act, 2015, it was noted.

"Section 56(2) is merely an enabling provision which permits persons from all religions to adopt a child from one relative to another as per the provisions of the JJ Act, 2015 and the Adoption Regulations, 2017. Thus, this provision permits all persons, irrespective of their religion, who intend to adopt a child to do so in terms of the Act." 

Also, Section 56(3) of the JJ Act, 2015 which began with the phrase "Nothing in this Act", meant that this was a clear exclusionary provision. Hence, if any child was adopted in accordance with the provisions of HAMA, resort to the provisions of the JJ Act, 2015 would not be required for the adoption to be valid.

"An adoption carried out in compliance with the conditions laid down in HAMA would be valid by itself, without recognition by CARA or any state agency", the Court said.

"A conjoint reading of Sections 56 and 60 clearly shows that there is a lacuna or a vacuum in the law. In view of the clear wording of Section 56(3), adoptions under HAMA would not be governed by the JJ Act, 2015. Thus, Section 56(4) would not be applicable for adoptions under HAMA. The term "Nothing in this Act" would take within its ambit Section 56(4) as also Section 60 of the JJ Act, 2015 and exclude their applicability qua adoptions under HAMA. Thus, insofar as adoptions under HAMA are concerned, whether domestic or inter-country, direct or indirect, the JJ Act, 2015 and the Adoption Regulations, 2017 would not be applicable. However, this would not mean that Hindus governed by HAMA cannot adopt under the JJ Act, 2015. Section 56(2) is an enabling provision and thus, even persons governed by HAMA have the option of taking a child in adoption in accordance with the JJ Act, 2015 however, the same is not mandatory or compulsory. There is also some ambiguity as to whether under the JJ Act, 2015, intercountry adoptions between non-relatives is permissible. However, for the present purposes, only adoptions under HAMA are being considered in these petitions"

In view of the prevalent regime under the Hague Convention, though HAMA adoptions are not governed by the JJ Act, 2015, the Court held that there was a clear need to create a mechanism to enable inter-country adoptions under HAMA.

Accordingly, the Court directed CARA to verify the documents submitted by the present petitioners and grant the same within a period of one month. 

A status report in respect of each of the writ petitions and the processing of grant of NOCs is also to be filed at least one week before the next date of hearing.

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