Supreme Court To Hear Overseas Citizen's Plea For NOC From CARA For Inter-Country Adoption

The Supreme Court on Tuesday (July 16) issued notice in a petition seeking the inter-country adoption of two children by a 49-year-old single Indian woman who resides in the United Kingdom. 

The petitioner, an Overseas Citizen of India, wanted to take her adopted children to the UK along with her. She is aggrieved by the procedural challenges coming in her way for seeking a No Objection Certificate (NOC) from the Central Adoption Resource Authority (CARA) to complete the inter-country adoption. 

The bench led by CJI DY Chandrachud comprising Justices JB Pardiwala and Manoj Misra, while issuing notice and seeking a response from CARA, also raised concerns over the need for foreign recognition of the adoption for the overall benefit of the child. The CJI pointed out that without a sponsorship letter from the UK Authorities, the child once taken abroad may not be able to get the benefit of the UK's welfare schemes on children's health and social security.

"The only problem is, this is a HAMA(Hindu Adoption and Maintenance Act) adoption. Once they go there (UK) the children will be entitled to the benefit of the National Health Service etc. Perhaps sponsorship by the Agency in the UK would be necessary. Because if the UK authorities do not recognise this adoption, suppose the child falls sick, he will not get any benefit."  

The bench also directed Additional Solicitor General (ASG) Aishwarya Bhati to assist the Court in the matter. 

The petitioner adopted her brother's twin children (born out of surrogacy) under the Hindu Adoption and Maintenance Act 1956 (HAMA) on January 9, 2020, through an adoption ceremony with the consent of the parties. An adoption deed confirming the said adoption was entered into on September 19, 2022. It may be noted that the biological mother of the twins had died in 2023 in an accident and the petitioner's brother was single-handedly parenting the children before the adoption took place.

The petitioner has challenged the Madras High Court order of April 17, 2024, which held that CARA can proceed to issue an NOC  only after there is a legal recognition of the adoption by the UK Authorities in compliance with the International Conventions signed by both the countries. The petitioner in the High Court had sought a direction to CARA for issuing NOC as per the Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption,1993 ( Hague Adoption Convention). The convention is ratified by both India and the UK. 

Arguments Raised By The Petitioner - Inter-Country Relative Adoption Done Under HAMA Cannot Be Governed By Procedure Set Out In JJ Act 2015

Before the Top Court, the petitioner represented by Advocate Anil Malhotra and Ankit Malhotra contended that the impugned order overlooks the fact that the adoptions are governed by the HAMA and not the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). It may be noted that the JJ Act deals with adoptions of those children who are orphaned, abandoned or surrendered by their parents. 

It was argued that as per S. 56 (3) of the JJ Act, adoptions done as per HAMA shall be excluded from the domain of the JJ Act and Rules. Since the present case falls in inter-country relative adoptions, an NOC or 'support letter' is mandatorily required from the Indian Central authority designated under the Hague Adoption Convention. 

S. 60 of the JJ Act provides the procedure where an inter-country adoption is done by a relative abroad. As per the provision, upon an Order being issued by the District Magistrate, CARA shall issue a NOC, which enables adoptive parents to obtain visas and other documents to travel abroad with adopted children. S. 68 (c) of the JJ Act empowers CARA to frame adoption regulations. 

Regulation 68 of the Adoption Regulations 2022 details the procedure for inter-country adoption. It specifies that "cases initiated after 17 September 2021' shall follow the standard common procedure for inter-country adoption by NRIs. As per the standard procedure, the adoptive parents shall first contact the Authorised Foreign Adoption Agency for a sponsorship letter and only then proceed to obtain an NOC from CARA after a background check from the District Child Protection Unit and District Magistrate. 

It is the case of the petitioner that the High Court has wrongly proceeded on the application of Regulation  68 which applies to adoptions done after 17 September 2021. In the present case, the adoption was done on January 9, 2020. The petition states as follows: 

"The stated requirement of execution of the adoption deed after 17.09.2021 in respect of Hindu adoptions for the procedure to be applied is wholly erroneous and illegal. Hindu adoptions are conclusive, irreversible and final on the conclusion of handing/taking over of the children. In the present case, this date is 09.01.2020. Therefore, the impugned judgment wrongly seeks to apply the procedure stipulated in Regulation 68 of the AR which applies to Hindu adoptions conducted after 17.09.2021. Thus, the impugned judgment dated 17.04.2024 is non-est, illegal and violative of HAMA and deserves to be set aside." 

The matter will now be heard on July 26. 

The Counsel while concluding his arguments also requested the bench to consider the issue of intercountry relative adoption procedure under the HAMA in the ongoing case of Temple of Healing which seeks simplification of the adoption process under the JJ Act and CARA. 

It may be recalled that on the last hearing in the Temple of Healing case, the petitioner in person also sought guidelines for the adoption procedure under the HAMA. 

However, the CJI noted that since the relevant regulations are already laid down under the HAMA Statute, it would not be within the court's domain to interfere with the specifications within the statute.

Observation By Madras High Court - Need To Legally Recognise Adoption In Both Countries For The Betterment Of The Child 

Before the Madras High Court, the petition filed a writ petition seeking directions to CARA for issuance of NOC with intimation to the UK Embassy. However, the High Court dismissed the petition observing that the petitioner shall first seek a 'sponsorship letter' from the UK authorities to ensure the legal recognition of the adoption of the children in the UK and only then could CARA issue an NOC for the same. 

"6. An adoption within the territory of India must be recognisable in a foreign country. As far as India and Britain are concerned, they are parties to international conventions. Therefore, the petitioner has to secure sponsorship letter from the competent authorities in the United Kingdom. On production of such sponsoring letter, the Indian Authorities will be in a position to issue No Objection Certificate to take the children to United Kingdom. In the absence of producing valid document from the authorities of the United Kingdom, the Government of India may not be in a position to issue No objection Certificate.

7. Child Rights and its protection are of paramount importance. Presently rights of the children are globally recognised and well established. Therefore, merely by adopting a children in one country, the said children cannot be taken to a foreign country without No objection Certificate, which is to be issued based on a treaty or international convention, wherein the countries are signatories." 

Special Leave to Appeal (C) No(s).14886/2024

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