Inter-country direct adoption; PKH Vs. Central Adoption Resource Authority [Delhi High Court, 18-07-2016]

Juvenile Justice (Care and Protection of Children) Act, 2015 – Guidelines Governing Adoption of Children, 2015 – Schedule 8 – Hindu Adoptions and Maintenance Act, 1956 – Guardians and Wards Act, 1890 – Section 7 – inter-country direct adoption – Suit filed by the adoptive parents against the natural mother – Held, the adoption in the present case is governed by the Act, 2000 and not by Act, 2015 – the Act, 2000 read with the Rules, 2007 and the Guidelines, 2015 expressly lays down a procedure for adoption only in relation to a child who is an orphan or abandoned or surrendered, and does not cover inter-country direct adoption – the Act, 2000 read with the Rules, 2007 and the Guidelines, 2015 provides that a child is surrendered when the parents wish to relinquish him/her to the CWC and a formal act takes place by which the child is surrendered by the natural parents to the CWC – Once the surrender is complete, the parents have no role in the future of the child and the CWC alone decides the best course for the child‟s future before the child is adopted – 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 – the Regional Passport Officer/MEA cannot insist on issuance of an NOC by Central Adoption Resource Authority before processing the petitioner’s application for issuing a Passport to the adopted child.


IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM: HON’BLE MR. JUSTICE MANMOHAN

18th July, 2016

W.P.(C) 5718/2015 & CM APPLs. 28508/2015, 19662/2016

PKH ….. Petitioner Through Mr. Karan Singh Thukral with Mr. Rohit Yadav, Advocates versus CENTRAL ADOPTION RESOURCE AUTHORITY THROUGH THE SECRETARY ….. Respondent Through Mr. Amit Sibal, Senior Advocate and Amicus Curiae with Mr. Rohan Alva, Mr. Tahir Ashraf Siddiqui, Mr. Namit Suri and Mr. Shariq Reyaz, Advocates. Mr. Akshay Makhija and Mr. Vivek Goyal, CGSC with Ms. Aastha Jain, Mr. Sumit Mishra and Mr. Prabhakar Srivastav, Advocates for CARA. Mr. Binod Sahu, Dy. Director, CARA.

JUDGMENT

MANMOHAN, J:

1. The popular belief is that adopting one child will not change the world; but for that child – the world will change. However, the pace at which our statutory authorities process an application for adoption, shows as if they believe only in the first part of the statement, namely, that adopting a child will not change the world.

2. This Court takes judicial notice of the fact that domestic adoptions have dropped by a half, hitting a five-year low with only 3011 children being adopted by the Indian parents in 2015-2016. During the same period, only 666 children were adopted by foreign parents. For a country having a population of approximately one billion three hundred twenty-seven million, the aforesaid statistics reveal an abysmal rate of adoption.

3. It is pertinent to mention that present writ petition has been filed seeking a direction to the respondent-CARA to grant a ‘No Objection Certificate’ (NOC) to the petitioner for taking her adopted child namely, M.H. (hereinafter referred to as ‘the child’) to Canada.

4. While learned counsel for the petitioner stated that the issues raised in the present petition were no longer res integra as they stood fully covered by the judgments of the Apex Court and this Court, learned counsel for the respondent-CARA submitted that in

Dr. Abha Agrawal v. Central Adoption Resource Agency, 2013 SCC Online Del 325

a learned single Judge of this Court while adjudicating two writ petitions on inter-country adoptions had despite his own judgment in Swaranjit Kaur vs. Union of India, W.P. (C) 29/2012 decided on 11th September, 2012 held that there was some ambiguity on whether inter-country direct adoptions would fall within the purview of the

Juvenile Justice (Care and Protection of Children) Act, 2000

(hereinafter referred to as ‘Act, 2000’). Learned counsel for the respondent- CARA pointed out that the learned single Judge had framed the following questions of law and referred the matter to the Division Bench:-

“(i). Whether the term ‘surrendered child’ will include those children who are directly taken in adoption from their biological parents without the intercession of any specialized agency or child welfare committee?

(ii) Whether, in case of direct adoption, the 2011 Guidelines and the provisions of Section 41(3) and (4) of the JJ Act are applicable?

(iii). If the answer to issue no.(i) and (ii) is in the affirmative, to what extent the 2011 Guidelines would apply to direct adoptions?

(iv) Can the court direct State to discharge its duty in its capacity as parens patriae to carry out an investigation so as to safeguard the interest and/or rights of the child conferred on him under Article 21 of the Constitution of India?

(v). Could respondent nos.2 and 3 insist on issuance of a NOC by CARA, before processing the application of the petitioner(s) for issuing a passport to the adopted child?”

5. The Division Bench, by its order dated 18th May, 2015, dismissed one petition for default in appearance and noted that in the other writ petition as respondent-CARA had issued an NOC, the petitioner did not press for any relief. Consequently, the questions of law were left open by the Division Bench.

6. Learned counsel for respondent-CARA submitted that as the Division Bench had not answered the reference, the petitioner’s argument that the issues raised in the present writ petition were no longer res integra was ill- founded and the respondent-CARA was justified in not granting an NOC to the petitioner. Since the respondent-CARA has been taking an identical stand in a number of connected writ petitions, this Court directed that the present matter be treated as the lead matter and appointed Mr. Amit Sibal, Senior Advocate, as the Amicus Curiae.

7. In a bid to preserve the privacy of the parties, this Court directs that in the order that is to be uploaded, initials of the parties should only be mentioned.

RELEVANT FACTS

8. The relevant facts of the present case are that the petitioner and her husband are both Canadian citizens who have been residing in Canada for the last twenty years. The petitioner is stated to be a reputed solicitor by profession who is employed in Alberta, Canada, where she owns both movable and immovable properties.

9. In the writ petition, it is averred that the petitioner has a male child and was desirous of balancing her family by adopting a girl child. It is stated that the petitioner decided to adopt a girl child from India as it is her cultural and ethnic base.

10. It is also averred that thereafter the relatives of the petitioner in her ancestral village in Punjab got in touch with another family relative, P.K., who was living in a nearby village. Both the natural and adoptive families are stated to have known each other for years and belong to the same ancestral village.

11. The adopted child was born on 24th September, 1999. The biological/natural mother of the child is a widow whose husband had unfortunately expired on 05th December, 1999. The natural mother has two other children – one daughter and one son – apart from the adopted child.

12. It is further averred that on 18th April, 2007, the natural mother gave her daughter, M, in adoption to the petitioner after satisfying herself with regard to the character, financial position and family background of the petitioner. It is contended that all the essential requirement of a valid adoption were adhered to and the ceremony of giving and taking the child in adoption was performed in the presence of the relatives and friends of both the families.

13. Pursuant thereto, a Deed of Adoption dated 26th April, 2007 was executed and registered in the office of the Sub-Registrar, Patiala, Punjab. The petitioner even got the name of the adopted child changed to “M.H. “.

14. After registration of the Adoption Deed and completion of all the formalities with regard to adoption, the petitioner with intent to take the adopted child to her resident country, Canada, applied for the immigration of the child to the High Commission of Canada.

15. However, the High Commission of Canada directed the petitioner to obtain an NOC from respondent-CARA’s office for processing of the immigration application as according to it an NOC from respondent-CARA is imperative under the Hague Convention to which India is a signatory.

16. It is the case of the petitioner that on 16th May, 2011, she submitted her application with all the relevant documents to CARA’s office at New Delhi, but the officer refused to acknowledge her application. The petitioner therefore, wrote various e-mails to CARA, but her requests were not acceded to.

17. It is pertinent to mention that the adoption of the child by the petitioner was approved as per the Hague Convention by the CARA of Canada and a favourable Home Study Report was issued on 29 th November, 2010. In fact, the petitioner was approved for adoption on 30 th November, 2010.

18. The complete set of documents from CARA, Canada with the approval of the adoption as per the Hague Convention were sent to the office of the respondent-CARA in May 2011. However, it is averred that when the petitioner later approached the respondent-CARA, to check the status of her application, no response was provided by respondent-CARA.

19. In the meantime, the petitioner also obtained a declaratory decree dated 03rd February, 2012 from the Court of Additional Civil Judge (Senior Division), Zira, Punjab, in her favour declaring the Adoption Deed executed by the petitioner and the natural mother of the child as valid and legal. The relevant portion of the Additional Civil Judge’s judgment in Case No. 120-1 dated 31.5.2011/6.6.2011 dated 03rd January, 2012, which has attained finality, is reproduced hereinbelow:-

“11. In view of the evidence led on record by the plaintiffs, it is held that adoption of plaintiff no.3 by plaintiffs no.1 and 2 after adoption ceremony has been duly proved on record. The adoption deed Ex.P2 bears the signatures of plaintiffs no.1 and 2 and defendant. Defendants were natural guardian of plaintiff no.3 at the time of execution and registration of adoption deed. The father of plaintiff no.3 had already died and his death certificate is on record as Ex.P5. The adoption of plaintiff no.3 is also not disputed by the defendants and only grudge of defendants is that plaintiff no.3 is not being looked after properly by the plaintiffs no.1 and 2 and due to said reason, they are asserting their right to take back plaintiff No.3 from plaintiffs no.1 and 2. It is held that since the adoption of plaintiff no.3 by plaintiffs no.1 and 2 has been proved on record, defendants cannot be allowed to repudiate the same.

Accordingly, issues no.1 and 2 are decided in favour of the plaintiffs.

Relief.

12. In view of my findings given on above said issues, suit of the plaintiffs for declaration and permanent injunction as prayed for in the head note of the plaint is decreed without any order to costs. Decree sheet be prepared accordingly. File be consigned to the record room.

Pronounced in open court Sd/-
On 3.1.2012 Raman Kumar
Addl. Civil Judge (Sr. Division)
Zira

20. It is the petitioner’s case that as a matter of last resort on 19th May, 2015, she filed the present writ petition before this Court praying for issue of a writ, order or direction to respondent-CARA to grant an immediate ‘Clearance/NOC’ in respect of her pending application.

21. Only on 02nd May, 2016, respondent-CARA filed a counter affidavit. In its response, respondent-CARA stated that it was designated as the Central Authority for the purposes of the Hague Convention on 16 th July, 2003 and that pursuant to the