U. Ajay Kumar and others Vs The Union of India.
Writ Petition 16681 of 2023 decided on 23 January 2024.
Justice M. Nagaprasanna.
Discussion and the declaration of Law: The petitioners, husband and wife are before this Court seeking a direction by issuance of a writ in the nature of mandamus to consider their representation dated 20-06-2023 made for the purpose of issuance No Objection Certificate (‘NOC’) and Conformity Certificate in favour of their adopted child in terms of Adoption Regulations, 2022 for Inter-Country Relative Adoption.
2. The facts, adumbrated, are as follows:-
The petitioners are husband and wife. The 1st petitioner/ husband is presently employed in Frankfurt, Germany and the wife is a resident of this nation – Bengaluru. Both the petitioners are citizens of India. Owing to the desire of adopting a child, as the petitioners did not have any issue from the wedlock for long years, the couple adopted a girl child of one Smt. S.Rashmi in the presence of relatives and friends. Smt. S. Rashmi gave her child in adoption by executing an adoption deed on 29-03-2023 before the Office of the Sub-Registrar, Chikkaballapura as the child was born in Chikkaballapura and the mother of the child was a resident of Chikkaballapura. Upon registration of adoption deed, as required in law, verification was done by the Deputy Commissioner and a certificate of verification was also issued along with the recommendation that adoption of the child being valid necessary action be taken upon the said adoption. The petitioners then seek issuance of an NOC and a conformity certificate in favour of adoption of the child by presenting it before the District Child Protection Unit. The District Child Protection Unit has not considered the request and has not issued an NOC as also conformity certificate of adoption. The petitioners have sent plethora of emails seeking issuance of NOC and conformity certificate. It is, therefore, the petitioners are before this Court seeking a direction for their issuance.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof what requires to be considered is,
“Whether the petitioners are entitled to a NOC and conformity certificate of the kind of adoption under the Act?”
7. It is not in dispute that the subject adoption is an intercountry adoption. Inter-country adoption was prohibited till 1993 and the children so adopted were left high and dry. It is, therefore, a convention on protection of children and cooperation in respect of inter-country adoption was envisaged at Hague. Several countries, including India, participated in the said Hague convention. The convention was to recognize that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. The convention further recognized that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin. It, therefore, in the best interest of the child with respect to the fundamental rights of the child and to prevent abduction, sale, trafficking of children, articles of convention were drawn in the nature of declaration on social and legal principles relating to protection and welfare of children, with reference to foster placement and adoption Nationally and Internationally. The Hague convention was concluded on 29-05-1993.
8. Pursuant to Hague convention, certain regulations are promulgated by Government of India by a notification issued on 23-09-2022 in exercise of powers conferred under clause (c) of Section 68 read with clause (3) of Section 2 of the Juvenile Justice (Care and protection of Children) Act, 2015. It is these Regulations that are in force as on today. Therefore, all adoptions would be governed by these Regulations. These regulations are called the Adoption Regulations, 2022 (hereinafter referred to as ‘the Regulations’ for short).
Sub-regulation (2) of Regulation 2 defines an ‘adoption committee’ comprising of certain officers appointed which will be chaired by the District Child Protection Officer. Sub-regulation (15) defines ‘incountry adoption’ which would mean adoption of a child by a citizen of India residing in India. The Regulations do not define in-country adoption. Sub-regulation (17) defines a No Objection Certificate which would mean that the certificate issued by the Authority for permitting the child to be placed in adoption with foreign or Overseas Citizen of India Cardholder or even a non-resident Indian prospective adoptive parents. Therefore, the petitioners would come within the definition of non-resident prospective adoptive parents. Regulation 58 deals with ‘No Objection Certificate’ to be issued by the Authority and reads as follows:
“(58) No Objection Certificate of Authority.- In case of all inter-country adoptions, the Authority shall issue No Objection Certificate in favour of the adoption of the child within ten days from the date of receipt of certificate issued under Article 5 or 17 of the Hague Adoption Convention from receiving country and a copy of the same shall be forwarded to the Authorized Foreign Adoption Agency or Central Authority concerned.”
Regulation 58 mandates that the Authority shall issue a NOC in favour of adoption of a child within 10 days from the date of a certificate issued under Article 5 or 17 of Hague Adoption Convention from the receiving country and a copy of that shall be forwarded to the authorized foreign Adoption Agency. Regulation 68 mandates that any Hindu prospective adoptive parents habitually residing abroad may contact the authorized foreign adoption agency in case of Hague ratified countries and the Government Department in case of non-Hague ratified countries to follow a standard common procedure for all inter-country adoptions under the Act who would take the child for adoption from India to a nation outside India. Regulation 69 deals with ‘Adoption process’ and reads as follows:
“69. Adoption process. – (1) The parties to an adoption concluded under the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) shall jointly present the deed of adoption to the Sub-Registrar’s office in the district with copy to District Magistrate.
(2) Based on such copy of the deed, the District Magistrate shall conduct such inquiry, as he may deem fit, to satisfy that all the provisions of Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), and the stipulations under the regulations have been followed and such inquiry shall be completed within a period of thirty days.
(3) In case the District Magistrate fails to complete the inquiry within thirty days, he shall be bound to give reasons along with verification certificate for failing to provide the inquiry report within thirty days and the parties may register the adoption deed with the Sub-Registrar concerned under the Registration Act, 1908 (16 of 1908), indicating the details of application made and that inquiry from District Magistrate has not been received within the stipulated time referred to in sub-regulation (2).
(4) The District Magistrate shall thereafter forward the verification certificate in the format in Schedule XXXV along with the checklist provided in Schedule XXXVI to the Central Adoption Resource Authority certifying the following that –
(a) the adoption recorded in the deed of adoption has been made in accordance with the provisions of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), including the sourcing of the child, the eligibility and suitability of the adoptive parents;
(b) the adopted child or the biological parents are not under any duress while giving the child in adoption.
(c) the adoption has been concluded with mutual consent of all parties concerned.
(d) there has been no monetary consideration involved in the adoption process and the adoption is in the best interest of the child.”
Parties to the adoption concluded under the Act should jointly present a deed of adoption to the District Magistrate. Based upon it, the procedure commences. The petitioners have done what is prescribed under Regulation 69. Regulation 70 deals with issue of No Objection Certificate and Conformity certificate and reads as follows:
“70. Issue of No Objection Certificate and Conformity Certificate.-
(1) On receipt of verification certificate from the District Magistrate, on the registered adoption deed and necessary permission under Articles 5 or 17 from the receiving country as provided in the Hague Adoption Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, the Central Adoption Resource Authority shall issue No Objection Certificate for Hague ratified countries under Article 17(c) and Conformity certificate under Article 23 of the Convention.”
It is here lies the choke to the petitioners as the certificate is yet to be issued. Issuance of NOC under the Regulation 70 mandates that on receipt of verification certificate from the District Magistrate necessary permission under Article 5 or 17 from the receiving country as provided under the Hague Adoption Convention (supra) in respect of inter-country adoption, the Central Adoption Resource Authority shall issue NOC in conformity with Article 23 of the Convention.
9. On a conjoint reading of the Regulations quoted supra what would unmistakably emerge is that on receipt of verification certificate by the District Magistrate on the adoption deed and necessary permission from the receiving country, the receiving country in the case at hand is Germany, issuance of NOC and conformity certificate is to be from India. The process is under Regulations 68 and 69 of the Regulations. It is on the bedrock of the aforesaid Regulations the case at hand requires consideration. The Regulations have come into effect from 23-09-2022 and therefore, adoptions taking place after the said date would be governed under the said Regulations
10. Here, it becomes apposite to refer to a judgment of the Apex Court in the case of THE TEMPLE OF HEALING v. UNION OF INDIA1 – W.P.No.(Civil) 1003/2021 wherein the Apex Court in terms of its order dated 20-11-2023 considering an identical circumstance has held as follows:
“20. As regards HAMA, during the course of hearing, both Ms Aishwarya Bhati, Additional Solicitor General and Dr Jagannath Pati, Director CARA have categorically stated before the Court that the process of adoption under HAMA is independent of the Regulations of 2022 which have been framed under the Juvenile Justice Act, 2015. It has been stated that CARA intervenes only when an adoption certificate is required by the adoptive parents in order to facilitate the travel of the adopted child to a country outside India. CARA has stated in its note submitted to this Court that based on the fact that HAMA is a statute governing the personal law for Hindus, the Ministry of Women and Child Development has issued a notification on 17 September 2021 entrusting CARA with the duty of issuing documents for inter-country adoption concluded under HAMA wherein NonResident Indians/Overseas Citizens of India Card Holder parents desire to relocate the adopted child abroad. The note submitted before the Court also indicates that a central challenge is to ensure that HAMA adoptions align with international adoption conventions, such as the 1993 Hague Inter-country Adoption Convention. It has been stated that although CARA has been processing adoption cases of NRI/OCI PAPs, the receiving countries do not necessarily consider HAMA to be in conformity with the Hague Convention procedure. CARA has thus far issued adoption support letters to NRI/OCI PAPs in 66 cases since May 2022.
21. In order to provide to this Court adequate data on the number and extent of HAMA adoptions, we direct that all States and Union Territories shall compile and submit to the Director CARA, the annual data pertaining to HAMA adoptions for 2021, 2022 and 2023 within each of their respective territories as on 15 January 2024. This data shall be submitted to the Director CARA by 31 January 2024.
22. The data which has been directed to be submitted before this Court shall be compiled and placed on the record by 10 February 2024. CARA shall issue directions to all authorities governed by the Regulations of 2022 to ensure due observance of the timelines which are indicated so that the process of adoptions is streamlined and expedited. The updated statistics for the period ending 31 January 2024 along with an updated status report shall be placed on the record together with the compilation.”
The Apex Court (supra) directs that adoptions under the Act align with the international adoption conventions as in certain cases processing adoption of NRI/OCI, the receiving countries do not necessarily consider adoption under the Act. Therefore, in order to provide adequate data, it has been directed that all States and Union Territories have to comply and submit to the competent authority of Hindu adoptions within each of their respective territories within a time frame. This was to streamline and expedite the rights of adopted children in signatory nations to the Hague convention.
11. In yet another order, prior to the one quoted hereinabove, the Apex Court in the case of KARINA JANE CREED v. UNION OF INDIA – S.L.P.(C) No.13627 of 2019 decided on 10-06-2019, noticing inter-country adoption under the Hague convention has observed as follows:
“4. Both India and Australia are signatories to the Convention on Protection of Children and Cooperation in respect of Inter-Country Adoption held in Hague in 1993 (hereinafter referred to as “Hague Convention”). Article 5 of the Hague Convention provides:—
5. Inter-country adoption requires a certification with regard to suitability of the adoptive parents to adopt the child, counselling of the prospective adoptive parents and authorization of the child to enter and reside in the receiving State.
6. 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’)
8. A foreigner living abroad if interested to adopt an orphan or abandoned or surrendered child from India might apply to an 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).
9. 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.
10. 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.
12. 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.”
The Apex Court observed that a foreigner or a person of Indian origin or an Overseas Citizen of India can apply for adoption of a child from India to the Authority with NOC from the diplomatic mission of his country in India. The Apex Court quotes Section 59 of the Juvenile Justice Act and observes that statutory requirement in cases of adoption cannot be deviated by the writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The Apex Court holds that the Delhi High Court has erred in granting such relief de hors observance of following of procedure. It is not in dispute that Germany is also a signatory to the Hague Convention like India. Germany has also put in place a Federal Central Authority of Germany depicting the norms for inter-country adoption.
ORDER
(i) Writ Petition is disposed of
Daksha Legal 