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 relevant provisions of the JJ Act, 2015 are Sections 56 and 60, which are set out hereinbelow:
“56. Adoption – (1) Adoption shall be resorted to
for ensuring right to family for the orphan,
abandoned and surrendered children, as per the
provisions of this Act, the rules made thereunder
and the adoption regulations framed by the
Authority.
(2) Adoption of a child from a relative by another
relative, irrespective of their religion, can be made
as per the provisions of this Act and the adoption
regulations framed by the Authority.
(3) Nothing in this Act shall apply to the adoption
of children made under the provisions of the
Hindu Adoption and Maintenance Act, 1956.
(4) All inter-country adoptions shall be done only
as per the provisions of this Act and the adoption
regulations framed by the Authority.
(5) Any person, who takes or sends a child to a
foreign country or takes part in any arrangement
for transferring the care and custody of a child to
another person in a foreign country without a valid
order from the Court, shall be punishable as per the
provisions of section 80.
…
(2) The Authority shall on receipt of the order under
sub-section (1) and the application from either the
biological parents or from the adoptive parents,
issue no objection certificate under intimation to the
immigration authority of India and of the receiving
country of the child.
(3) The adoptive parents shall, after receiving no
objection certificate under sub-section (2), receive
the child from the biological parents and shall
facilitate the contact of the adopted child with his
siblings and biological parents from time to time.”
A perusal of Section 56 of the JJ Act, 2015 shows that the same clearly applies only in respect of orphans, abandoned and surrendered children. This view is fortified by the decisions in Dr. Jaswinder Singh Bains (supra) and Swaranjit Kaur (supra) which were decided under the JJ Act, 2000. Thus, if the biological parents themselves are 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. 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.
Section 56(3) begins with the phrase “Nothing in this Act”. This phrase has been interpreted by the Supreme Court in Union of India & Anr. v. G.M. Kokil & Ors., 1984 SCR (3) 292 to mean that this is a clear exclusionary provision. In the context of adoption therefore, if any child has been 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. Such an adoption could be: (a) through customary /religious practices or ceremonies; (b) through a registered adoption deed; or (c) through a Court order recognizing either (a) and (b).
Once such an adoption has taken place, validating the same under the
provisions of the JJ Act, 2015 would not be required. This is the irrefutable
position insofar as domestic adoptions are concerned. Confusion has arisen in
view of Section 56(4) in respect of inter-country adoptions. Section 56(4)
begins with the words “All inter-country adoptions”. The question therefore
is whether in respect of inter-country adoptions conducted under HAMA, the
provisions of the JJ Act, 2015 and the Regulations thereunder have to be
complied with? Section 56(5) renders the taking or sending of a child to a
foreign country without a valid Court order as a punishable offence. Section
60 provides for the procedure for inter-country adoptions from a relative by a
relative living abroad.
Thus, Sections 56(3), (4) and (5) read along with Section 60 raise several questions:
i. Whether the JJ Act 2015 and the Adoption Regulations, 2017 extend to adoptions in respect of children who are not orphaned, abandoned, surrendered or abused?
ii. Section 60 of the JJ Act, 2015 only provides for inter-country
adoptions by relatives from relatives. How would adoptions
between non-relatives take place?
iii. If the JJ Act, 2015 has no applicability for adoptions under
HAMA, should the provisions of the JJ Act, 2015 be mandatorily
extended to all inter-country adoptions, including those under
HAMA?
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.
The Supreme Court in Anokha (supra) has held that for inter-country direct adoptions, the JJ Act, 2015 would not be applicable as the children are not orphans, abandoned or surrendered children. Thus, there are several gaps in the JJ Act, 2015 and the Regulations thereunder. This gap is, in fact, recognized by CARA in its Policy on Inter-Country Direct Adoptions. The said policy concluded that suitable provisions for inter-country direct adoptions ought to be inserted into the Adoption Regulations framed under the JJ Act, 2015. The relevant observations of the said policy read as under:
“a) Suitable provision on inter-country direct
adoption may be inserted in Adoption Regulations
framed under JJ Act, 2015;
b) Opinion may be sought from Law Ministry about
possible amendments in HAMA in the light of
Section 56(4) of JJ Act that all inter-country
adoptions shall be done only as per the provisions
of this Act and the Adoption Regulations framed by
the Authority;
c) Any direct adoption done prior to 15th January,
2016 (date of enforcement of JJ Act, 2015) may be
disposed of on compliance of minimum requisite
documents after proper verification of such
adoption cases by State Government concerned.”
The above policy recognized that there was a need to provide for a
mechanism in the case of inter-country direct adoptions between non-relatives
under the JJ Act, 2015, as also inter-country adoptions under HAMA. A
decision was also taken in respect of direct adoptions done prior to the date
when the JJ Act, 2015 came into force i.e., prior to 15th January, 2016, that
after certain minimum compliances are made, the NOC could be issued by
CARA and the adoptions could be recognized. The compliances prescribed in
respect of adoptions prior to 15th January, 2016 are as under:
a. State verification report/Family background report and source
verification of the child (or CWC certificate) and antecedents of
biological parents;
b. Home Study Report of the PAPs with support documents;
c. Permission letter/Article 5/17 from receiving country or permission
letter from Embassy of the receiving country in case of OCI/Foreigner
living in India;
d. Committee’s approval to proceed with the case.
One further question that arises is whether Section 60 of the JJ Act, 2015 would be applicable to the Petitioners in W.P.(C) 11168/2020, where the adoption is from the biological parents to the Chacha who is the adoptive parent, and whether the rejection of the NOC by CARA is valid or not. 66. The statutory scheme of the JJ Act, 2015 shows that HAMA adoptions are not governed by the provisions of the JJ Act, 2015, in view of Section 56(3). The Adoption Regulations, 2017 also do not provide for adoptions by biological parents or relatives to third-party adoptive parents. There is therefore a clear legal vacuum in the current regulatory framework for intercountry direct adoptions. This position is also confirmed by all the counsels, including ld. counsel for CARA, as also by the report of the ld. Amicus Curiae.
The Hague Convention and Adoption in India
The main purpose of the Hague Convention is to ensure that the interests of the children are safeguarded and to prevent abduction, sale and trafficking of children in inter-country adoptions. The Convention recognizes inter-country adoptions effected under different systems of domestic law of a member country. It also recognizes that inter-country adoptions should not be done for any extraneous reasons, especially for financial considerations.
The Hague Convention provides for a system of Central Authorities in all Contracting States which are responsible for discharging the duties imposed under the Hague Convention. These Central Authorities are obligated to cooperate with one another through the exchange of general information concerning intercountry adoption; eliminate obstacles to the application of the Convention; and deter all practices contrary to the purpose of the Convention. Chapter II of the Hague Convention, comprising of Articles 4 and 5, stipulates the requirements for inter-country adoptions as under:
“Article 4
An adoption within the scope of the Convention shall take
place only if the competent authorities of the State of origin
–
a) have established that the child is adoptable;
b) have determined, after possibilities for placement of the
child within the State of origin have been given due
consideration, that an intercountry adoption is in the child’s
best interests;
c) have ensured that
(1) the persons, institutions and authorities whose consent
is necessary for adoption, have been counselled as may be
necessary and duly informed of the effects of their consent,
in particular whether or not an adoption will result in the
termination of the legal relationship between the child and
his or her family of origin,
(2) such persons, institutions and authorities have given
their consent freely, in the required legal form, and
expressed or evidenced in writing,
(3) the consents have not been induced by payment or
compensation of any kind and have not been withdrawn,
and
(4) the consent of the mother, where required, has been
given only after the birth of the child; and
d) have ensured, having regard to the age and degree of
maturity of the child, that
(1) he or she has been counselled and duly informed of the
effects of the adoption and of his or her consent to the
adoption, where such consent is required,
(2) consideration has been given to the child’s wishes and
opinions,
(3) the child’s consent to the adoption, where such consent
is required, has been given freely, in the required legal
form, and expressed or evidenced in writing, and
(4) such consent has not been induced by payment or
compensation of any kind.
Article 5
An adoption within the scope of the Convention shall take
place only if the competent authorities of the receiving
State –
a) have determined that the prospective adoptive parents
are eligible and suited to adopt;
b) have ensured that the prospective adoptive parents have
been counselled as may be necessary; and
c) have determined that the child is or will be authorised
to enter and reside permanently in that State.”
Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, are required to apply to the Central Authority in the state of their habitual residence. The Central Authority, upon being satisfied that the requirements stipulated under Articles 4 and 5 have been met prepares a report and transmits the same to the Central Authority of the State of origin. The Central Authority of the State of origin, after satisfying itself that the child is adoptable, sends another report to the Central Authority of the State where the prospective adoptive parents habitually reside. Both Central Authorities are responsible for ensuring that the child can enter the receiving state and reside there permanently.
As per Article 37 of the Hague Convention, inter-country adoptions done under different systems of domestic law of a member country are recognized by the Hague Convention. Article 37 reads as under:
“Article 37 In relation to a State which with regard to adoption has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.”
Thus, inter-country adoptions under HAMA are protected under the Hague Convention as it recognizes inter-country adoptions under different systems of law.
As per Article 24 of the Hague Convention, recognition of an intercountry adoption can only be refused if the same is contrary to public policy. Article 24 reads as under:
The recognition of an adoption may be refused in a
Contracting State only if the adoption is manifestly
contrary to its public policy, taking into account the
best interests of the child.”
The Hague Convention, under Article 28, also recognizes that the Convention would not affect any domestic law in the country where the child originates from if it requires the adoption to take place in that State or if it prohibits the child’s transfer to the receiving State prior to the adoption. Article 28 reads as under:
“Article 28 The Convention does not affect any law of a State of origin which requires that the adoption of a child habitually resident within that State take place in that State or which prohibits the child’s placement in, or transfer to, the receiving State prior to adoption.”
a. That the child is established as being adoptable;
b. That the inter-country adoption is in the child’s best interest;
c. That consent from all persons concerned is obtained and that the
consent is free, without involvement of any compensation or
monetary exchange;
d. If the child is of a higher age/maturity, the child is required to be
counselled. The Child’s wishes have to be taken into consideration;
e. That the competent authority has determined that the prospective
adoptive parents are suited to adopt the child and are eligible;
f. That counselling has been given to prospective adoptive parents as
deemed necessary;
g. That an application has been moved before the central authority.
h. That the central authority of the country of origin and of the
receiving country would ensure that the child can enter the receiving
state and reside there permanently.
While the Hague Convention fully protects inter-country adoptions made under personal laws, owing to difficulties in the recognition of such adoptions by foreign countries, who are not familiar with customary usages and practices, there is material under the Hague Convention which points towards the requirement of recognition by a Central Authority. One such material available on record is an Information Brochure which reads as under:
“22. Adoptions which are arranged directly between
birth parents and adoptive parents (i.e., private
adoptions) are not compatible with the Convention.
It is in view of this position under the Hague Convention, that NOCs are usually sought even in the case of inter-country direct adoptions which may otherwise be valid under personal laws such as HAMA. While there is thus no doubt that the provisions of the Hague Convention recognize adoptions under different systems, including HAMA, as valid, the provisions of the Hague Convention which require a NOC from a Central Authority in the local country, so as to ensure proper verification of the adoptive parents, the welfare of the child and the continued well-being of the child, cannot be ignored. It appears that since there are no specific provisions dealing with inter-country adoptions under HAMA, CARA erroneously states in its website as under:
“Inter-country adoptions cannot be done under HAMA as these fall under private and direct adoption and is not supported by Hague Convention on Adoptions (Para 22 & 23 of Ch 6 of Hague Convention Information Brochure)”
The above message on CARA’s website would be contrary to Art. 37 of the Hague Convention as the said provision recognizes adoptions under different systems of law, though it requires the verification by a Central Authority to prevent misuse and abuse.
In view of the prevalent regime under the Hague Convention, though HAMA adoptions are not governed by the JJ Act, 2015, there is a clear need to create a mechanism to enable inter-country adoptions under HAMA. There is a clear vacuum and gap in this area. It is in light of this legal position that the court has to consider the way forward. An analysis of the various judgments, the JJ Act, 2000, the JJ Act, 2015 and the regulations thereunder, as also the Hague Convention, leads this Court to the following conclusions:
(1) The provisions of the JJ Act, 2015 apply in respect of orphaned,
abandoned, surrendered or abused children.
(2) In view of the clear exclusion in Section 56(3), the JJ Act, 2015
would not apply in respect of valid adoptions under HAMA – whether
domestic or inter-country. Thus, domestic and inter-country adoptions
where the parties are Hindus and the adoption has already been validly
carried out in terms of the provisions of HAMA, do not fall within the
purview of the JJ Act, 2015.
(3) In view of Art.37 and other provisions of the Hague Convention,
adoptions under HAMA are duly recognized.
(4) Persons belonging to communities other than those governed by
HAMA may resort to the provisions of the JJ Act, 2015 for effecting
adoptions. In addition, persons who are governed by HAMA also have
the option of effecting adoptions under the JJ Act, 2015 in view of
Section 56(2).
(5) Courts have verified various factors such as credibility of the
adoptive parents, consent of the biological parents, nature of documents
executed, Court orders if any, financial status of the adoptive parents,
home study reports, duration for which the child has already been living
with the adoptive parents, the condition of the child etc. After taking all
these factors into consideration, upon satisfaction that the welfare of the
child is taken care of, Courts have either directed CARA to issue an
NOC or directed issuance of a passport for the child to travel with the
adoptive parents to a foreign country.
(6) The Hague Convention encourages issuance of an NOC for
recognition of inter-country adoptions.
(7) In the existing framework of the JJ Act, 2015 and the Regulations
thereunder read with HAMA, there is a clear gap in the law as to the
manner in which –
Role & Functions of CARA vis a vis Adoption in India
CARA was the specialized Agency which was established by virtue of the directions given by the Supreme Court in Laxmikant Pandey (supra). The functions of CARA as per Section 68 of the JJ Act, 2015 are as under:
“68. The Central Adoption Resource Agency
existing before the commencement of this Act, shall
be deemed to have been constituted as the Central
Adoption Resource Authority under this Act to
perform the following functions, namely: —
(a) to promote in-country adoptions and to facilitate
inter-State adoptions in co-ordination with State
Agency;
(b) to regulate inter-country adoptions;
(c) to frame regulations on adoption and related
matters from time to time as may be necessary;
(d) to carry out the functions of the Central
Authority under the Hague Convention on
Protection of Children and Cooperation in respect
of Inter-country Adoption;
(e) any other function as may be prescribed.”
From the above it is clear that one of the functions of CARA is to regulate inter-country adoptions. An additional function of CARA is to carry out functions of the Central Authority under the Hague Convention in respect of inter country adoptions. There is no doubt that domestic adoptions which are valid under HAMA require no supervision from any agency in view of Section 56(3). The Hague Convention recognizes 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.
Though the JJ Act, 2015 and the Adoption Regulations, 2017 have a detailed procedure for inter country adoptions, since HAMA adoptions are not governed by the said provisions, the same procedure need not be adopted inasmuch as adoptions under HAMA have already satisfied various conditions as required in HAMA. Since there is 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. Such proceedings delay the finalization of the adoption and is a time-consuming affair which often disrupts the life of the adoptive parents and the well-being of the child. The facts of the present three cases show the manner in which the adoptive couples are separated. For instance, in W.P.(C) 279/2019, the adoptive mother is living in India with the child, while the adoptive father is living in Spain. Such sacrifices are being made by adoptive couples for the well-being of the child as obtaining a visa/passport has become a challenge in the absence of a NOC from CARA.
Permanent Mechanism/solution for inter-country adoptions under HAMA:
The above discussion clearly highlights the need for a permanent solution to deal with inter-country adoptions under HAMA in light of the Hague Convention. As of now, there exists no provision under HAMA dealing with inter-country adoptions. While it could be argued that the procedure under HAMA regulates both domestic and inter-country adoptions, there is a need to have a relook at the statute post the ratification of the Hague Convention. CARA, which is an agency set up under the JJ Act, 2015, per se would not have jurisdiction in respect of adoptions under HAMA as the JJ Act, 2015 does not apply in respect of HAMA adoptions. However, currently, CARA is the only agency dealing with inter-country adoptions. Thus, 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.
The Juvenile Justice (Care and Protection of Children) Amendment Act – 2021, also does not deal with the category of inter-country adoptions being dealt with in the present judgment i.e., inter-country direct adoptions under HAMA. The Central Government would accordingly need to find a permanent solution to the problems being faced by the biological parents, adoptive parents and above all the children who are being adopted under the provisions of HAMA, especially when the said children have to be sent abroad and the requirements under the Hague Convention would have to be fulfilled.
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