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Delhi HC Unites Child With Adoptive Parents In Germany [Read Judgment]

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16 Nov 2017 1:22 PM GMT
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Bringing an end to the uncertainty surrounding a minor, who awaited a no-objection certificate from the Central Adoption Resource Authority to be able to unite with his adoptive parents in Germany, the Delhi High Court has directed that the same be issued to the adoptive parents in two weeks after which the minor be issued passport to travel to his new home.

“Present petition is disposed of with a direction to the respondent – CARA to grant, within a period of two weeks, a No Objection Certificate (NOC) to the adoptive parents of the petitioner for taking the petitioner to Germany. The Ministry of External Affairs/Regional Passport Officer is also directed to issue a passport to the petitioner within a period of two weeks thereafter,” Justice Sanjeev Sachdeva ordered.

The order of the court came on a petition filed by the minor through his next friend, his biological father, seeking direction to the visa issuing authorities that certificate from CARA is not mandatory in view of an order of a Court (dated May 28, 2015 in a guardianship petition) under the Hindu Adoptions and Maintenance Act (HAMA), 1956, and also praying for a direction to the Ministry of External Affairs to issue a passport to him.

“In view of the judgment dated May 28, 2015 of the Competent Court in a Guardianship Petition, the petitioner is now lawfully adopted, the said judgment has attained finality and even if the petitioner was to wish, the petitioner cannot re-unite with his biological parents.

“The Petitioner’s birth certificate and his Aadhaar card has already been modified and the names of his adoptive parents have already been substituted therein in place of his biological parents. Further, it is not a case of adoption between strangers. The present is a case of adoption between family members. The adoptive parents being the real elder brother of the biological father and the elder brother’s wife. The adoption, being in accordance with the HAMA Act, is complete. Accordingly, all relations between the petitioner and his natural family are severed. If the petitioner is not permitted to unite with his adoptive family, the petitioner would be in a very precarious position, where his relations with the biological parents have severed and the relations with his adoptive family are not permitted to be joined. It would cause grave injustice to a child,” said Justice Sachdeva.

In the instant case, the petitioner was born in year 2004. He was adopted by his father’s elder brother and his wife in year 2015, as they did not have any child despite undergoing medical procedures.

A registered Adoption Deed was executed and ratified by the Court of District & Sessions Judge (West), Tis Hazari Courts, Delhi, in a Guardianship Petition in May, 2015.

The adoptive parents of the petitioner are German citizens with Overseas Citizen of India (OCI) status and live in Hannover, Germany.

It, being an inter-country adoption, the parents of the petitioner approached CARA, as directed by the German Consulate at Delhi. CARA asked them to obtain a No Objection Certificate prior to applying for a visa and that for such a certificate, they had to make an application for adoption with CARA.

The petitioner contended that the Guidelines Governing Adoption of Children, 2015 which were notified on July 17, 2015, under the Juvenile Justice Act, 2015, is not applicable to adoption of children made under the provisions of HAMA Act and the guidelines cover only an orphan, abandoned or surrendered child and does not covered inter-country direct adoptions.

It was contended that the present case is not only of an inter-country direct adoption, but an adoption within the family.

During pendency of the present petition, the petitioner placed on record a judgment of the Higher Regional Civil Court at Germany dated February 20, 2017, recognizing the adoption of the petitioner and also recognizing the judgment of the Court of District & Sessions Judge (West), Tis Hazari Courts.

The court relied on the judgment of a concurrent bench in case titled PKH versus Central Adoption Resource Authority, where a girl adopted from Punjab by a Canadian couple was stuck in similar situation.

In that case, the high court had declared that 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 and that in cases of inter-country direct adoption, NOC from CARA is not required under the Act, 2000, and the Guidelines, 2011.

Going through the verdict in PKH case, Justice Sachdeva said, “As noticed by the learned Single Judge in PKH versus Central Adoption Resource Authority (supra), delay in adoption would mean that the minor has to live with uncertainty and insecurity. The adoption ceremonies were performed on 26.01.2015 and the adoption deed was executed on 27.01.2015 and for over two and a half years, the minor child is living with uncertainty and till date, has not been integrated with his adoptive family in the new country of residence”.

The court did away with the formality of a home study report from Germany in view of the Higher Regional Civil Court at Germany, recognizing the adoption of the petitioner.

Read the Judgment Here

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