A three-year-old child, adopted in 2018 by a Sikh woman who is also a British national, will finally be able to fly to United Kingdom with her to join the rest of the family following a prolonged legal battle with the Punjab and Haryana High Court Tuesday clearing the way. The high court directed the Central Adoption Resource Authority (CARA) to grant no objection certificate (NOC) to the adoptive parents for taking the child to UK and further ordered the MEA to immediately issue her a passport.
The order came on a petition that the HC had been hearing since 2019. The petition filed in the name of a minor, born in November 2017, challenged the MEA decision of denying her the passport for lack of an NOC from the CARA, a statutory authority for regulation of inter-country adoptions. The child was adopted by her mother’s sister and latter’s husband in 2018. The adoptive parents are British nationals while the biological parents are from Jalandhar. A registered deed was also got prepared by them following the ceremonial adoption at a gurdwara in Phillaur. The parents’ name was also got changed on the birth certificate. The adoptive mother — who is an OCI card holder also — has remained in India since the adoption due to the NOC hurdle.
In the verdict pronounced, Justice Nirmaljit Kaur ruled that a valid adoption under Hindu Adoptions and Maintenance Act (HAMA) — the law governing adoptions made by Hindus, Buddhists, Jains or Sikhs — cannot be revoked until disproved. Justice Kaur further held that it is not mandatory to invoke Juvenile Justice (JJ) Act in this case of the inter-country adoption when the adoption is a direct adoption by the parents to known adoptive parents or relatives under HAMA.
Advocate Sukhwinder Singh Nara, who represented the adoptive mother, had argued that the JJ Act is not applicable to the adoption of children made under HAMA and therefore the question of securing a NOC (from CARA) does not arise. However, the Centre argued that the requirement of CARA’s NOC was a mandatory procedure for the adoption to be ratified by the agency, even though Section 56(3) of JJ Act states that the enactment would not be applicable to an adoption under HAMA.
Advocate Anil Malhotra, who was appointed as amicus curiae last month, in his report to court opined that MEA and regional passport officer cannot decline an adopted child a passport by questioning the validity of the adoption or for lack of an NOC of CARA. In a 79-page report, Malhotra submitted that the parties in the case have already fulfilled the conditions of HAMA for the adoption. He also submitted that JJ Act does not apply to adoptions made under HAMA.
Justice Kaur in the ruling said JJ Act is special law for a limited class of children — those in conflict with law, in need of care and protection and protection, orphaned, surrendered or abandoned — but the child in this case is being given by the biological mother to her sister.
“The submission made by Amicus Curiae makes sense as it is not understood as to how an Act, which is applicable to a special class of children, namely, orphans, abandoned, surrendered and in conflict with the law, be also applied alongwith all its tedious procedures to children being given in adoption by able, mentally sound parents and that too to a relative directly. More so, when they are close relatives,” said the court.
The court further said the right to adoption of the adoptive parents under HAMA cannot be taken away, even though they are British citizens, as they are Sikh and their religion remains the same. The adoption cannot be challenged on the ground that it should have been made under JJ Act, the court further said, adding, the Section 15 of HAMA clearly states that a valid adoption under the Act is irreversible.
Observing that in adoption of the child in this case, there is no violation of any condition prescribed in Section 11 of the HAMA, the court also held that the authorities cannot question the validity of the registered adoption deed while processing the application for issuance of a passport for the minor. There is no scope for the authorities to question the validity of the registered adoption deed as same is irreversible under Section 15 and also there is presumption in favour of the a recorded adoption under Section 16 of HAMA, as per the ruling.
However, the court also said the NOC from CARA is necessary in this case due to the provisions of Passport Manual, 2016 and Rule 5 of the Passport Rules, 1980, relating to the foreign parents. However, it reiterated that CARA is simply required to issue an NOC within two weeks and then MEA has to issue the passport within two weeks of the receipt of NOC.
“The requirement is for foreign parents. Although, the court is of the view that an Indian or OCI with a British Passport, that is with British Citizenship, will not lose their identity of being an Indian parent or Indian especially when they are called ‘Overseas Citizen of India’, nevertheless, the said debate is left open as no argument was raised qua the same by either side,” observed the court.
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