The Punjab and Haryana High Court areheld that the Juvenile Justice Act, 2015 would not apply in cases of inter-country adoption of children being given directly by parents to relatives/known people under the Hindu Adoption and Maintenance Act, 1956.
The Court also ruled out the requirement of procuring the NOC from the Central Adoption Resource Authority for issuance of passport to the child so adopted where the adoptive parents are Indians.
CARA is a statutory Authority established under Section 68 of the J.J. Act, 2015, governing adoptions among special children - children in need of care and protection and children in conflict with law.
Justice Nirmal Kaur was hearing a writ petition where the Passport Authority had refused to issue a passport to the petitioner, a toddler girl, given in adoption by her natural parents to her biological mother's real sister and her husband, NRIs, OCI card holders and citizens of the United Kingdom, for want of NOC from CARA.
The petitioner-baby girl was given in adoption as per Sikh rites and ceremonies performed at a Gurudwara and a certificate to this effect was also issued. Pursuant to the adoption ceremony, a registered adoption deed was also executed between the natural and adoptive parents of the petitioner. So the petitioner was duly adopted as per the Hindu Adoption and Maintenance Act, 1956.
Before the High Court, it was urged on behalf of the UOI states that it is a mandatory procedure for the adoption to be ratified by CARA.
"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", said the bench, noting that in the present case the adoptive parents are also Sikhs as the natural parents, the child is being given over by the biological parents of sound mental health, the biological mother is the real sister of the adoptive mother, and 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", stated the Single Judge.
The Single Judge opined that the UOI's argument that Section 56(4) of the JJ Act mandates that inter-country adoptions shall be as per the provisions of the J.J. Act, 2015, was met by a reference to Sub Section (3) of Section 56, according to which, provisions of the J.J. Act, 2015 will not apply in case the adoption of the children is made under the provisions of the Hindu Adoption and Maintenance Act, 1956.
The bench was of the view that the procedure for inter-country relative adoptions, as in Section 60 of the J.J. Act, has to be read in conjunction with Section 56 of the Act, which is "an inbuilt of the Hindu Adoption and Maintenance Act and adoption code in itself" and, therefore, the supremacy of Section 56(3) over-rides the remaining provisions of Section 56 of the J.J. Act.
The bench stated that Section 56(4) of the J.J. Act has to be read with its applicability as per Section 1(4) of the JJ Act, which lays down very clearly that the Act applies only "to all matters concerning children in need of care and protection and children in conflict with law".
The bench appreciated that Section 1(4) of the J.J. Act applies only to special children. Thus, the other provisions of the said Act, including the Rules framed under it or the 2017 adoption regulations issued by the Ministry of Women and Child Development, which are specifically notified in exercise of the powers conferred by Section 68 of the Act, 2015, will have to be read along with the applicability of the said Act, which is only to children specified under Section 1(4). "Once the applicability is only of the special children, it is not understood as to how the same can be made applicable to other children being directly given by the parents, whether to, in country adoptive parents or outside the country", wondered the bench. Further, the court clearly stated that in case the Legislative Authority had the intention to apply the said Act even to such children who were given directly in adoption, the necessary amendment would have followed in the Juvenile Justice (Care and Protection of Children) Act, 2015, especially when the old JJ Act, 2000 was replaced by the 2015 Act.
"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, irrespective of religion, 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 the 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", the bench proceeded to explain.
The bench noted that 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, and that even though, they are British citizens, their religion remains the same and, therefore, their right to adopt under the HAMA cannot be taken away.
"Once having applied under HAMA & adoption having been registered under it, the said adoption cannot be challenged on the ground that the same should have been made under J.J. Act, 2015 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", observed Justice Kaur, concluding that it was neither mandatory nor necessary to apply for adoption of the child in question under the J.J.Act, 2015.
Further, the bench noted that on account of Section 16, HAMA, a presumption shall be drawn that the said adoption has been made in compliance with the provisions of the HAMA, and there is a presumption in law as to what is recorded in the said deed.
"Thus, the respondents cannot question the validity of the registered adoption deed in the application for issuance of a passport by a minor child", asserted the court. The bench found, on a perusal of Section 5.2 of Chapter X of the Passport Manual, 2016 and Part I of Schedule III under Rule 5 of the Passports Rules, 1980, that NOC from CARA is required only by foreign parents and not Indian parents. "Although, the Court is of the view that an Indian or OCI with a British Passport, i.e. with British Citizenship will not lose their identity of being an Indian parent or Indian especially when they are called 'Overseas Citizen of India', nevertheless, the said debate is left open as no argument was raised qua the same by either side", expressed Justice Kaur.
Accordingly, the court deemed it to be in the interest of the adoptive parents as well as the child in question to obtain a simple 'No Objection Certificate' from CARA in order to ensure a clean transition from one country to another lest they face any difficulty for the purpose of Visa or any other requirement.
In view of the earlier discussion holding the adoption to be valid with no right either to CARA and J.J Act, 2015 to question the same on account of the fact that the adoption under HAMA, 1956 was a direct adoption by the adoptive parents from the biological parents who are close relatives, the bench asserted that the detailed tedious procedure prescribed under the J.J. Act, 2015 and CARA is not required.
The Court on Tuesday directed CARA to issue a 'No Objection Certificate' to the adoptive parents of the petitioner for taking their child to U.K. within two weeks, and the Ministry of External Affairs/ Regional Passport Office to immediately thereafter issue the passport to the petitioner within two weeks of the receipt of NOC from CARA.
Advocate Sukhvinder Nara argued the matter for petitioner.
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