Important Judgments on inter-country direct adoptions

Note: I have culled out this excerpt from a judgement of Hon’ble High Court of Delhi which was delivered on August 31, 2021. ( R K vs Another ,W.P.(C) 279/2019). Any reference to ‘this court’ would mean the Delhi High Court.

The Supreme Court had the occasion to consider adoptions by foreign parents in the case of Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244. Considering the complicated situations which arose in inter-country adoptions, the Supreme Court had expressed a desire for establishment of an agency which could process and validate adoptions in the country. This, along with the provisions of Hague Convention, led to the establishment of CARA.

In Lakshmi Kant Pandey (supra), the Supreme Court, prior to the enactment of the JJ Act, 2000, considered inter-country adoption of a child and clearly held that in the case where the child’s biological parents are available and they are willing to give the child in adoption, the biological parents would have the best interests of the child in mind. Thus, the Supreme Court concluded that inter-country direct adoptions do not require any third-party monitoring or regulation. The relevant portion of the judgment in Lakshmi Kant Pandey (supra) reads as under:

“15. We may make it clear at the outset that we are not concerned here with cases of adoption of children living with their biological parents, for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents. It is only in those cases where the children sought to be taken in adoption are destitute or abandoned and are living in social or child welfare centres that it is necessary to consider what normative and procedural safeguards should be forged for protecting their interest and promoting their welfare.”

In Anokha v. The State of Rajasthan and Ors., (2004) 1 SCC 382, the Supreme Court reiterated the position that procedural safeguards would not apply in the case of inter-country direct adoptions i.e., adoptions from the biological parents to the adoptive parents. It is relevant to note that Anokha (supra) was decided after the enactment of the JJ Act, 2000. The relevant portion of the judgment in Anokha (supra) reads as under:

“8. In our view, the High Court and the District Judge erred in not considering the material produced by Respondents 2 and 3 in support of their application and in rejecting the application under the Guardians and Wards Act, 1890 solely on the basis of the Guidelines. The background in which the Guidelines were issued was a number of decisions of this Court, the first of which is Lakshmi Kant Pandey v. Union of India [(1984) 2 SCC 244 : AIR 1984 SC 469] . This is borne out from the stated object of the Guidelines as set out in paragraph 1.1 thereof which “is to provide a sound basis for adoption within the framework of the norms and principles laid down by the Supreme Court of India in the series of judgments delivered in L.K. Pandey v. Union of India[(1984) 2 SCC 244 : AIR 1984 SC 469] between 1984 and 1991”.The original decision of the Court was taken on the basis of a letter written by one Laxmi Kant Pandey complaining of malpractices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The judgment has considered the problem at great length after affidavits were filed not only by the Indian Council of Social Welfare but also by foreign organisations and Indian organisations which were engaged in offering and placing Indian children for adoption by foreign parents. The decision has referred to three classes of children: (i) children who are orphaned and destitute or whose biological parents cannot be traced; (ii) children whose biological parents are traceable but have relinquished or surrendered them for adoption; and (iii) children living with their biological parents. The third category has been expressly excluded from consideration as far as the decision was concerned “for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents” [Ibid., SCC p. 264, para 11 of the Report] . The reason is obvious. Normally, no parent with whom the child is living would agree to give a child in adoption unless he or she is satisfied that it would be in the best interest of the child. That is the greatest safeguard. …

12. The Guidelines have formulated various directives as given by this Court in the several decisions and do not relate to regulation of the adoption procedure to be followed in respect of the third category of children, namely, children with their biological parents who are sought to be given in adoption to a known couple as is the situation in this case. It is only where there is the impersonalized attention of a placement authority that there is a need to closely monitor the process including obtaining of a no-objection certificate from the Central Adoption Resource Agency (CARA), Ministry of Welfare, the sponsorship of the adoption by a recognised national agency and the scrutiny of the inter-country adoption by a recognised Voluntary Coordinating Agency (VCA). Indeed CARA has been set up under the Guidelines for the purpose of eliminating the malpractices indulged in by some unscrupulous placement agencies, particularly the trafficking in children.”

In Dr. Jaswinder Singh Bains v. CARA, 2012 SCC OnLine Del 646, the adoptive parents were permanent residents of Canada who had adopted a child by executing an adoption deed, conducting a religious ceremony to solemnize the adoption, and obtaining a decree from the Civil Judge (Senior Division), Patiala, declaring the adoptive parents to be guardians of the child. Subsequently, when the adoptive parents initiated the required process in Canada, the Family Services of Greater Vancouver requested CARA for issuance of an NOC. However, CARA did not respond. Accordingly, a writ petition was filed. Considering the judgment of the Supreme Court in Laxmi Kant Pandey (supra), the ld. Single Judge of this Court held that an NOC from CARA was not required as the adoption was directly from the biological parents. The submission of CARA too was that its mandate is limited to rehabilitating orphaned, abandoned and surrendered children under the adoption guidelines notified by Government of India. The relevant paragraph of the judgment reads as under:

“4. Upon issuance of notice, the respondent has filed a counter affidavit sworn by Mr. Jagannath Pati, Joint Director CARA. The respondent refers to the decision of the Supreme Court in the case of Anokha (Smt.) v. State of Rajasthan, (2004) 1 SCC 382 in its counter affidavit. The respondent, after placing before this Court the various legal provisions applicable in the matter of cross border adoption, in the ultimate paragraph has stated that it is mandated to work for the rehabilitation of orphaned, abandoned and surrendered children under the adoption guidelines notified by Government of India. It is stated that the present case does not fall under any such category, as in this case the adoption has taken place voluntarily by the biological parents of the child. Therefore, the respondent is not able to process this case of direct adoption.”

Thus, in Jaswinder Bains (supra) it was CARA’s stand that inter-country adoptions in respect of children who are not orphaned, abandoned and surrendered do not fall within its jurisdictional mandate, as per the JJ Act 2000.

In Swaranjit Kaur v. UOI & Ors. 2012 SCC OnLine Del 6464, this Court was dealing with a case involving prospective adoptive parents located in Canada. An adoption deed was entered into between the biological parents and the adoptive parents, which was also approved by the competent Civil Court. For the purposes of issuance of a passport, an NOC was required from CARA, however, CARA had not issued an NOC, leading to the filing of the writ petition. This Court, following the judgment in Dr. Jaswinder Singh Bains (supra), held that since the adoption was an inter-country direct adoption, CARA had no role to play.

In PKH v. CARA, 2016 SCC OnLine Del 3918, this Court was considering a case where the adoption took place prior to the coming into force of the JJ Act, 2015. The child was from Punjab and the adoptive parents were residing in Canada. The child was given away in adoption by the biological parents. CARA Canada had also given a favourable home study report. Following the judgments in Anokha (supra) and Swaranjit Kaur (supra), it was held that an NOC from CARA is not required in the case of an inter-country direct adoption. However, it was noted that since there was a Home Study Report and a decree of declaration in this case, Articles 5 and 17 of the Hague Convention were satisfied. Further, an NOC was directed to be issued by CARA to facilitate the issuance of a passport for the child. The relevant findings of the Court are as under:

“ANSWERS TO THE ISSUES RAISED IN DR.
ABHA AGRAWAL (SUPRA) AS WELL AS IN THE
PRESENT CASE AND CONCLUSIONS

91. The survey of the domestic law and
    international conventions leads to the following
    conclusions:
    a. As the adoption deed in the present case has been
    executed under HAMA, 1956, before the Act,
    2015 came into force and the adoption deed has
    been held to be legal, valid and genuine by the
    Additional Civil Judge (Senior Division), Zira in
    a civil suit filed by the adoptive parents against
    the natural mother, the adoption in the present
    case is governed by the Act, 2000 and not by Act,
    2015.
    b. The Act, 2000 read with the Rules, 2007 and the
    Guidelines, 2015 expressly lays down a
    procedure for adoption only in relation to a child
    who is an orphan or abandoned or surrendered,
    and does not cover inter-country direct
    adoption. c. The Act, 2000 read with the Rules, 2007 and the Guidelines, 2015 provides that a child is surrendered when the parents wish to relinquish him/her to the CWC and a formal act takes place by which the child is surrendered by the natural parents to the CWC. Once the surrender is complete, the parents have no role in the future of the child and the CWC alone decides the best course for the child’s future before the child is adopted. d. A child given in direct adoption cannot be termed as a “surrendered child”, since there is no relinquishment of the child, by the parents to the CWC. e. The Supreme Court in Lakshmi Kant Pandey (supra) as well as Anokha (supra) and the High Court of Delhi in Dr. Jaswinder Singh Bains (supra) and Swaranjit Kaur (supra) have categorically and conclusively held that all inter-country direct adoptions are outside the scope of the rules set out for adoptions under the Act, 2000 and the Rules/Guidelines framed there-under. f. In view of the aforesaid binding precedents, there is no scope for incorporation of the concept of parens patriae in inter-country direct adoption cases under the Act, 2000, specially when the adoption deed has been declared to be legal, valid, genuine and binding by a competent court. g. Rule 26 of the Guidelines, 2011 is a procedural provision and it does not advance the case of the respondent-CARA. h. In view of CARA, Canada’s approval for adoption and its favourable home study report as well as the decree of declaration passed by Additional Civil Judge (Senior Division), Zira, this Court is of the opinion that the requirements of Articles 5 and 17 of the Hague Convention are satisfied in the present case. i. Consequently, in cases of inter-country direct adoption like the present case, NOC from respondent-CARA is not required under the Act, 2000 and the Guidelines, 2011. j. The Regional Passport Officer/MEA cannot insist on issuance of an NOC by respondent-CARA before processing the petitioner’s application for issuing a Passport to the adopted child. … RELIEF 95. Accordingly, the present writ petition and applications are disposed of with a direction to respondent-CARA to grant an NOC to the petitioner for taking her adopted child namely, M.H., to Canada within a period of two weeks. Ministry of External Affairs/Regional Passport Officer is also directed to issue her a passport within two weeks thereafter. …”

The said judgment has been challenged before a ld. Division Bench of this Court in LPA 518/2018 titled CARA v. PKH, however, as per Ld. Counsels, no stay has been granted in this matter.

In Jasmine Kaur v. Union of India and Ors. [CWP 10555/2019, decided on 28th July, 2020], the Punjab & Haryana High Court was dealing with a case involving a child who was given away in adoption by her biological parents to her aunt (maasi). The adoption was conducted as per Sikh rites and ceremonies, in accordance with the provisions of HAMA. The High Court was considering the following three issues:

“7. After hearing learned counsel for the parties at
length, three issues arise in the present writ
petition:

1. Whether the adoption under HAMA, 1956 is valid
   and whether Section 56 of the J.J. Act, 2015 is
   applicable in the facts of the present case and the
   adoption in the present case can only be made
   under the J.J. Act, 2015?
2. Whether an NOC from CARA, i.e. respondent No.
   3 is mandatory as per the mandate of Section 60
   of the J.J. Act, 2015 for direct inter-country
   relative adoption?
3. Whether respondent No. 2 can refuse to issue a
   passport beyond the statutory provisions of
   Section 6 of the Passports Act, 1967?”

After analyzing the JJ Act, 2015, as well as the provisions of HAMA, it was held that:

“10. A perusal of the J.J. Act, 2015 shows that it is
a special provision for a limited class of children,
those who are in conflict with law, in need of care
and protection, orphaned, surrendered or
abandoned. In the present case the adoptive parents
are Sikhs. The child is being given over by the
biological parents of sound mental health. The
biological mother is the real sister of the adopted
mother. The child is neither an orphaned nor
surrendered nor in conflict with the law. Thus, the J.J. Act 2015 does not apply for adoption of the
particular child in question.”
…

14. The argument of learned Additional Solicitor
    General of India, Mr. Satya Pal Jain, that the
    judgment pertains to a period before the
    amendment of the J.J. Act, 2000 and is before the
    enactment of J.J. Act, 2015, came into operation is
    correct but the same does not help in any manner as
    the applicability of the Act under the Juvenile
    Justice (Care and Protection of Children) Act, 2000
    and the Juvenile Justice (Care and Protection of
    Children) Act, 2015 remains the same. In fact, its
    application under J.J. Act, 2015 is even more
    specific to only special children.
    …
15. Further, the aim and object of the J.J. Act, 2015
    was formulated for protection of such children who
    are found to be in conflict with law or required
    rehabilitation. Thus, Section 56(4) and (5) of the
    J.J. Act, 2015 is only for such children. Sub Section
    (2) of Section 56 of the J.J. Act, 2015, which talks of
    adoption of a child by a relative from another
    relative, is an option/remedy provided to those to
    whom HAMA, 1956 will not apply, i.e. they are
    neither Hindu, Buddhist, Jain or Sikh, as the case
    may be or is not Muslim, Christian, Parsi or Jew by
    religion, although it does not bar and in a way gives
    option even to a Hindu, Sikh, Jaina etc. to apply
    under this Act. Therefore, it also does not mean that
    those religions covered under the definition of a
    ‘Hindu’ as per the HAMA, 1956 cannot apply under
    the J.J. Act, 2015. Here, it needs to be emphasized
    that J.J. Act, 2015 is a secular Act and rather gives
    choice to even those covered under the HAMA,
    1956 to apply for adoption under the J.J. Act, 2015, as also clarified by the Apex Court in the case of Shabnam Hashmi vs. Union of India and others MANU/SC/0119/2014 : 2014(1) RCR (Civil) 1052 holding that Juvenile Justice (Care and Protection of Children) Act, 2000 has been enacted for adoption of children irrespective of their religion/caste and the said Act cannot be negated by any other personal law and the individuals are free to either submit to their personal law or adopt children under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. Para 11 of the said judgment reads thus: “11. The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, Rules and the CARA guidelines, as notified under the Act. The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.”

The P&H High Court also considered the judgment of the High Court of Kerala in Sivarama K. & Ors. v. State of Kerala & Ors., 2020 (1) Kerala Law Journal 641, wherein it was held that if the child was not an orphan, abandoned or surrendered child, the JJ Act, 2015 would have no applicability. The High Court observed as under:

“29. On the giving of the child by the biological
parents and the taking of the child by the adoptive
parents, which is evidenced by Ext. P-1 registered
adoption deed, the child can never be labelled as an
orphan, abandoned or surrendered child, as
interpreted by the fourth respondent. If such a view
is taken, it would render the HAM Act otiose and
redundant and make it appear that the former
enactment is repugnant with the J.J. Act, which
never is the intention of the lawmakers. Such a
narrow and oppressive interpretation cannot be
given, particularly when the legislature has
consciously included Sec. 56(3) in the J.J. Act, the
later enactment, with the intention to permit
adoptions under the HAMA Act. There may be
instances where a person may qualify to adopt a
child under the provisions of both the HAMA Act
and the J.J. Act. In such an eventuality, especially
where is no repugnancy between the two statutes, it
would be the choice of such person to opt for the
HAMA Act or the J.J. Act, 2015, adoption. No
authority can compel such person to resort to only
the J.J. Act, 2015.”

In conclusion, the Court held that in view of Section 56(3), the JJ Act, 2015 would not apply even in the case of inter-country adoptions, when the adoption is under HAMA. The conclusions are set out herein below:

“17. In the present case, there is no dispute that the adoption has been taken by the persons who are Sikhs and, therefore, have a right to adopt the petitioner under the HAMA, 1956. Even though, they are British citizens, their religion remains the same and, therefore, their right to adopt under the HAMA, 1956 cannot be taken away. In these circumstances, their adoption would be considered as valid. Their adoption is also protected by Section 56(3) of the JJ Act, 2015 itself, which clearly stipulates that the provisions of the Act shall not be applied for the adoption of the children under the HAMA, 1956. Once having applied under HAMA & adoption having been registered under HAMA, 1956, the said adoption cannot be challenged on the ground that the same should have been made under J.J. Act, 2015 as also in view of Section 15 of HAMA, 1956 which clearly states that a valid adoption of a minor child is irreversible and cannot be revoked. Thus, it was neither mandatory nor necessary to apply for adoption of the child in question under the J.J. Act, 2015.”

CARA was then directed to issue an NOC and the Ministry of External Affairs was directed to issue a passport for the child.

Recently, in JS & Anr. v. CARA & Anr. [W.P.(C) 3187/2021, decided on 26th July, 2021], a ld. Single Judge of this Court was considering a case where an NOC was sought from CARA to enable the adoptive child to be taken to the U.S. In the said judgment, the ld. Single Judge considered the scheme of the JJ Act, 2015 and the 2017 Regulations framed thereunder.

The Court noted the difference between adoption procedures for
Hindus governed under HAMA and for persons from other religions. The
conclusions of the Court were:
a) Customary adoption by performing ceremonies is recognized under
Hindu law. Even if the customary procedure is not followed and a
registered adoption deed is executed, so long as the conditions under
HAMA are satisfied, there is a presumption of legal adoption.
b) Insofar as Muslims and Christians are concerned, their personal law
does not recognize adoption. HAMA does not apply in respect of
Muslims, Christians, Parsis or Jews. However, adoption in these
communities is permissible which is clear from a reading of Sections
58 and 59 of the JJ Act, 2015.
c) For adoptions to be recognized under the JJ Act, 2015 the Adoption
Regulations, 2017 must be followed. For children to be taken
abroad, the central agency in each country must issue an NOC.

In JS & Anr. (supra), both, the biological parents and the adoptive parents were Christians who had sought to conclude the adoption under HAMA. The said adoption deed was declared to be void. However, to protect the welfare of the adopted child, the Court recognized various factors and arrived at the conclusion that the child was not trafficked and that the adoptive parents had taken good care of the child. The Court then issued a declaration that they were the adoptive parents and directed CARA to issue an NOC to enable the child to be taken abroad.

In Karina Jane Creed v. Union of India & Anr., [W.P.(C) 3576/2019, decided on 10th May, 2019], the Petitioner was an Australian citizen residing in India for four years. She had applied for adoption of Indian children which was not granted as CARA had not issued an NOC for grant of VISA before the Australian High Commission. The Australian High Commission had taken the position that an NOC from CARA would be required in terms of Section 59(11) of the JJ Act, 2015. The Court in those circumstances held that the requirement of an NOC is a mandatory requirement under Section 59(12) of the JJ Act, 2015. The Court also observed that in the said case the children in question had earlier been moved for adoption by an Italian couple. Under those circumstances, since the Australian High Commission had not furnished its NOC for adoption of the children, the writ petition was dismissed. This judgment was upheld by the ld. Division Bench of this Court in LPA No. 351/2019 titled Karina Jane Creed v. UOI & Anr. The Supreme Court, in the SLP, being SLP No. 13627/2019 titled Karina Jane Creed v. UOI & Ors. observed as under:

“In India all inter-country adoptions are governed by
the provisions of Juvenile Justice (Care and Protection
of Children) Act, 2015 (hereinafter referred to as ‘JJ
Act’). Section 56(4) of the JJ Act provides:-
“56(4) All inter-country adoptions shall be
done only as per the provisions of this Act
and the adoption regulations framed by the
Authority.”

Inter-country adoption of an orphan or
abandoned or surrendered child can only be effected in
accordance with Section 59 of the JJ Act.
A foreigner living abroad if interested to adopt
an orphan or abandoned or surrendered child from
India might apply to authorized foreign adoption
agency, or Central Authority or a concerned
Government department in their country of habitual
residence, in the manner as provided in the adoption
regulations framed by the CARA as provided in Section
59(3).
The authorized foreign adoption agency, or
Central Authority, or concerned Government
department, of the foreign country has to prepare a
home study report of the prospective adoptive parents
and upon finding them eligible sponsor their
application to CARA for adoption of a child from India.
A foreigner or a person of Indian origin or an
overseas citizen of India who has habitual residence in
India can apply for adoption of a child from India to
CARA along with No Objection Certificate from the
diplomatic mission of his country in India.
In view of the statutory provisions of the JJ Act
and in particular Section 59(12) thereof the relief
prayed for in the writ petition cannot be granted. The
writ Court could not have waived the statutory
requirement of Section 59(12) of the JJ Act. As
observed by learned Single Bench of Delhi High Court,
there is little doubt that the petitioner would have
brought up the children well, with love and affection
and the children too would have been lucky to have the
petitioner as an adoptive parent. We have every
sympathy for the petitioner but regret our inability to
help her.”