The Delhi High Court on Tuesday directed the Union Ministry of Women & Child Development to lay down a permanent mechanism for inter-country adoption under the Hindu Adoptions & Maintenance Act (HAMA), 1956 within two months (RK & Anr v. Central Adoption Resource Authority).
Justice Pratibha M Singh, however, found it necessary to issue interim directions till a permanent framework was put in place. Therefore, the Single Judge directed the Central Adoption Resource Authority (CARA) to act as an authority to enable inter-country adoption under the HAMA.
The order stated that until a proper permanent framework is put in place, to ensure the welfare of the adopted children and to provide a timely mechanism for the biological/adoptive parents as also the child, it is deemed appropriate to direct CARA to act as the Authority for the purposes of enabling inter-country adoptions under HAMA.
The Court observed that since there was no existing procedure under the HAMA, a procedure similar to the shortened procedure already in existence for adoptions prior to the Juvenile Justice Act, 2015 could be followed to issue No Objection Certificates in cases of such adoptions.
The following particulars were directed to be verified by a special committee whenever the need for a NOC arises: The background and antecedents of the biological parents or Family background report and source verification of the child (or CWC certificate); Verify the consent of the biological parents and that of the child, if needed based upon the age and maturity, for the adoption; Details of any religious ceremony conducted; Details of the adoption deed and its genuine/validity; Court order, if any, recognizing the adoption; Home Study Report of the prospective adoptive parents with support documents; Permission letter from receiving country or permission letter from Embassy of the receiving country in case of OCI/Foreigner.
The Committee would then record its satisfaction and issue the NOC within one month. The guidelines also entitle CARA to monitor the child’s progress for two years following their arrival in the receiving country. Finally, it was stated that CARA may frame broad guidelines on the basis of the directions given by the Court. The authority was directed to create a specific form on its portal incorporating the guidelines within four weeks. It was also directed to carry out the necessary changes on its website. These guidelines came in a detailed judgment arising out of three cases being heard by Justice Singh that raised important questions regarding the international adoption of Indian children. In the three pleas, adoptive parents of Indian children adopted under the HAMA have settled abroad and were facing challenges moving the adopted child abroad due to the non-issuance of NOCs by CARA. Central Government Standing Counsel Gaurang Kanth appearing for CARA submitted that after the 2015 amendment to the Juvenile Justice Act, a decision was yet to be taken regarding inter-country adoption.
The report of Amicus Curiae and Senior Advocate Sanjoy Ghose stated that there were lacunae in the legislation for inter-country adoption. It was concluded in the report that neither the JJ Act, the Adoption Regulations, or HAMA prescribe any procedure for inter-country direct adoption between non-relatives, and therefore, amendments are required to the existing legislation.
After discussing in detail precedents, international law, and Indian legislation in place, the Delhi High Court deemed it necessary to pass the above directions. The order stated, in view of the fact that currently, no permanent mechanism exists for inter-country direct adoptions under HAMA, bearing in mind the welfare of children, which is of utmost importance in cases of adoptions, as also to ensure that there is no trafficking of children, the Ministry of Women & Child Development, Govt of India, is directed to place a report before this Court as to the manner and mode of creating a permanent mechanism to deal with intercountry adoptions under HAMA, both direct and indirect and place the said report before this Court within a period of two months.
The matter has been listed on November 9, 2021, for hearing on compliance.