Christian Couple Wrongly Adopts Under Hindu Adoption Act; Delhi High Court Declares Them 'Adoptive Parents' As They Took Good Care Of Child

The Delhi High Court has given relief to a Christian couple who had looked after a child for six years from her birth, although they had not followed the legal route for adoption.The couple, who were childless, had adopted the child through an adoption deed executed under the Hindu Adoption and Maintenance Act, despite the fact the said Act is not applicable to Christians. They said that they executed the adoption deed under a "wrong legal advice". After raising the child for over six years, the couple ran into legal complications when they tried to get a passport for the child as their adopted daughter. In this backdrop, they approached the Delhi High Court.Although the adoption deed was not valid in law as far as the petitioners were concerned, the High Court declared them as the adoptive parents of the child, having regard to the fact that they had looked after well and that it would be against the welfare of the child to uproot her from her adoptive family.The Court however observed that Christians could not have executed an Adoption Deed under the Hindu Adoptions and Maintenance Act, 1956 and that the law of the land was carelessly flouted in the case."This case reflects how easily it is possible to set at naught the law intended to protect the welfare, well-being and the rights of the minors. A complete go by has been given to the provisions of the Juvenile Justice (Care and Protection of Children) Act, ("JJ Act", for short), whether of 2015 or of 2000." a single judge bench of Justice Asha Menon observed.However, in order to advance the welfare of the child, the Court declared the child as being fit for adoption and held that the couple had looked after the minor child as a "foster family" since the time the child was handed over to them immediately after birth and that further orders from the Child Welfare Committee were not required.Facts of the caseThe petitioners submitted that a cousin of one of them, one Sister EA, a social worker, had met the biological parents of the minor child, who were migrant workers. On visiting their house, she found that the mother was unable to feed the minor child who was born on December 11, 2014. After taking the child to a pediatrician, it was found that the child was severely malnourished.The biological parents handed over the child to Sister EA, agreeing for the child to be given in for adoption. The child was later adopted by the petitioners. An adoption deed was executed under the Hindu Adoption and Maintenance Act.Difficulties arose when the petitioners sought a passport for the child to enable them to take the child to USA where they were employed. As the passport authorities refused to act on the adoption deed, the petitioners instituted a civil suit seeking a declaration that the child was their legally adopted daughter.However, the trial court dismissed the suit in 2018 after holding that the adoption deed was void being contrary to the provisions of Section 2(1)(c) read with Sections 5 & 6 of the HAMA, as the biological parents and the adoptive parents are Christians by faith.Later, the petitioners approached the Central Adoption Resource Authority with a request for issuance of certificate to the effect that the child was legally free for adoption. When the CARA rejected the request, the petitioners approached the Delhi High Court through writ petition. Directions were also sought to issue the requisite NOC and all other requisite approvals, permissions and certificates, to enable them to take the minor as their adopted child to USA, with a further direction to issue a passport to the child naming the petitioners as her parents.Christians have no custom of giving and taking in adoptionThe High Court held that the CARA's stand cannot be faulted as the adoption deed was not valid in law. "Christians have no custom of giving and taking in adoption. The "direct adoption" is with reference to Hindus. That is why there is reference to HAMA. Drawing up an adoption deed under HAMA in relation to Christians is not legally valid as held by the Additional Civil Judge (Senior Division), Ferozepur. In reality, no adoption has taken place at all, leave alone prior to 2016", the Court noted. Christians and Muslims have no option of "direct adoption" and they have to go through the process under the Juvenile Justice Act, the Court added. "As far as Muslims and Christians are concerned, their personal laws do not recognise adoption. As HAMA excludes them, they cannot seek to adopt a child in terms of that Act, including by means of a registered document recording an adoption. In order to fulfil their desires of having a child through adoption, their only option is to come under the JJ Act".The petitioners highlighted that the child, who did not know her biological parents, had been with them since 2014 and had fully integrated with their family. The petitioners said that they are giving her good education and support and to...

Christian Couple Wrongly Adopts Under Hindu Adoption Act; Delhi High Court Declares Them 'Adoptive Parents' As They Took Good Care Of Child

Nupur Thapliyal

"Though there is no valid adoption of the child, the petitioners have taken good care of the child", Court said.

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