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Friday, September 17, 2021

Inter-country adoptions: Delhi HC seeks report from WCD Ministry

Justice Prathiba Singh said there was a clear need to create a mechanism to enable inter-country adoptions under HAMA and that there was a clear gap in the area.

By: Express News Service | New Delhi |
Updated: September 2, 2021 3:59:18 am
In the order passed Tuesday, Justice Prathiba Singh said whenever an inter-country adoption takes place under HAMA and an NOC is required — including for issuance of a passport or visa — a special committee would be appointed to verify the particulars upon an application being filed before CARA.

OBSERVING THAT no permanent mechanism exists for inter-country adoption under the Hindu Adoptions and Maintenance Act (HAMA), the Delhi High Court has asked the Ministry of Women and Child Development for a report on the issue within two months while ordering the Central Adoption Resource Authority (CARA) to act under the aforementioned law in the meantime.

In the order passed Tuesday, Justice Prathiba Singh said that whenever an inter-country adoption takes place under HAMA and a no-objection certificate is required for any purpose — including for issuance of a passport or visa — a special committee would be appointed to verify the particulars upon an application being filed before CARA.

“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,” reads the order.

According to Advocate Anil Malhotra, who specialises on the subject, adoptions in India take place under two laws — Hindu Adoptions and Maintenance Act, which is applicable to Hindus, and the Juvenile Justice (Care and Protection of Children) Act, 2015, a secular law.

Adoption Regulations, 2017, which have been framed under the JJ Act, provide a detailed procedure for adoptions and CARA as a central authority under the JJ Act regulates inter-country adoptions, Malhotra told The Indian Express.

“CARA grants NOC to the adoptive parents, who wish to take the child out of India. However, in cases of adoptions under HAMA, which are not governed by the JJ Act, CARA only certifies the adoption to have taken place as per the Hague Adoption Convention 1993,” he said, adding that 1993 convention requires approval from a central authority.

Justice Singh said in the order that there was a clear need to create a mechanism to enable inter-country adoptions under HAMA and that there was a clear gap in the area. “The Hague Convention recognises HAMA adoptions under Article 37 but also stipulates acquiring of an NOC from the Central Authority in case of inter-country adoptions. Thus, in India, a framework would have to be put in place to enable issuance of an NOC in respect of inter-country adoptions which are validly undertaken under the provisions of HAMA,” reads the order.

The court said that since there was no clear procedure prescribed for adoptions under HAMA, adoptive parents and children are repeatedly required to file writ petitions or other proceedings before various courts. “Apart from any amendments in the law which may be required, there is also a need to create a specialized agency for inter-country adoptions under HAMA or to vest the said jurisdiction with CARA itself,” Justice Singh said.

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