:-by Snehi Suryash
A three-year-old child wins to get Indian passport following a prolonged long legal battle. She was adopted in 2018 by a Sikh woman who is also a British national. She will finally be able to fly to United Kingdom with her. Where she will be able to join the rest of the family.
The legal suit was filed in the Punjab and Haryana High Court which cleared the way on Tuesday. HC directed the Central Adoption Resource Authority to grant NOC to the adoptive parents for taking the child to UK. It further ordered the MEA to immediately issue her a passport.
The petition filed in Punjab and Haryana High Court
The order came on a petition that was filed in 2019 in High Court. The petition was filed in the name of a minor, born in November 2017.
The petition challenged the MEA decision of denying her the passport for lack of an NOC from the CARA. CARA is a statutory authority for regulation of inter-country adoptions.
The child was adopted by her mother’s sister and latter’s husband in 2018. Adoptive parents are from British nationals while the biological parents are from Jalandhar, India.
Registered deed was also prepared by them following the ceremonial adoption at a gurdwara in Phillaur. The parent’s name also got changed on the birth certificate. The adoptive mother, an OCI card holder has remained in India since the adoption due to the NOC hurdle.
The verdict was pronounced by Justice Nirmaljit Kaur. It ruled that a valid adoption under Hindu Adoptions and Maintenance Act cannot be revoked until the same is disproved.
Justice Kaur further held that it is not mandatory to invoke Juvenile Justice Act in this case of the inter-country adoption when the adoption is a direct adoption by the parents to known adoptive parents or relatives under HAMA.
Advocate Sukhwinder Singh Nara represented the adoptive mother. He had argued that the JJ Act is not applicable to the adoption of children made under HAMA. Therefore, the question of securing a NOC (from CARA) does not arise.
To which, the Centre argued that the requirement of CARA’s NOC was a mandatory procedure for the adoption. Section 56 (3) of JJ Act states that the enactment would not be applicable to an adoption under HAMA.
Amicus Curiae’s Report
Advocate Anil Malhotra was appointed as amicus curiae last month, who submitted a 79-page report. His report opined that MEA cannot decline an adopted child a passport by questioning the validity of the adoption. Or, for lack of an no objection certificate of CARA.
In the report, Malhotra submitted that the parties in the case have already fulfilled the conditions of HAMA for adoption. He also submitted that JJ Act does not apply to adoptions made under HAMA.
Justice Kaur stated that the submission made by Amicus Curiae makes sense as it is not understood as to how an Act, which is applicable to a special class of children, be also applied to children being given in adoption.
The judgment of the court
The court further said the right to adoption of the adoptive parents under HAMA cannot be taken away, even though they are British citizens. As they are Sikh and their religion remains the same.
Adoption cannot be challenged on the ground that it should have been made under JJ Act. As, the Section 15 of HAMA clearly states that a valid adoption under the Act is irreversible.
The court observed that in adoption of the child in this case, there was no violation of any condition prescribed in Section 11 of the HAMA. It also held that the authorities cannot question the validity of the registered adoption deed while processing the minor’s passport. Also there is presumption in favour of the a recorded adoption under Section 16 of HAMA, as per the ruling.
However, the court also said the NOC from CARA is necessary in this case. As the provisions of Passport Manual, 2016 and Rule 5 of the Passport Rules, 1980, mandates the foreign parents.
However, it reiterated that CARA is simply required to issue an NOC within two weeks and then MEA has to issue the passport within two weeks of the receipt of NOC.
