In a writ petition filed before the Delhi High Court seeking a direction for the issuance of a ‘No Objection Certificate’ to the petitioners as per Regulation 67(3) of the Adoption Regulations, 2022 after being aggrieved by Central Adoption Resource Agency’s (CARA) refusal to issue the same for the relocation of a minor child (petitioner 1), a Single Judge Bench of Justice Sachin Datta directed CARA to issue an NOC and to follow up the matter with the Canadian authorities.
Petitioner 2 (adoptive mother) was an Indian citizen holding Permanent Resident Status in Canada, and was the legally wedded wife of petitioner 3 (adoptive father), a Canadian citizen as well as an Overseas Citizen of India (OCI) cardholder. The minor child, born on 02-03-2018, was adopted by the couple as per Sikh customs in September 2019, and a passport was issued to the child.
The adoptive parents approached Cornerstone Adoption Agency, Canada (Foreign Adoption Agency) on 07-03-2019 to relocate the minor child to Canada. They executed an adoption deed dated 08-02-2021 under the Hindu Adoption and Maintenance Act, 1956 (HAMA), after which the Office of Civil Surgeon, Moga, issued a birth certificate to the minor child, recording petitioners 2 and 3 as adoptive parents. Thereafter, they initiated the procedure to relocate the child in accordance with Regulation 22B of the Adoption (Amendment) Regulations, 2021, and the District Magistrate, Ferozepur, Punjab, furnished a verification report dated 18-04-2022 and a family background report.
On 22-11-2022, CARA issued a support letter, and by an email dated 10-10-2023, the Foreign Adoption Agency in Canada informed the adoptive father that the CARA portal reflected the child’s relocation application as ‘rejected’, with a remark that the matter could not be taken up as it was related to HAMA. The adoptive parents were also informed that in the absence of the required NOC, their application could not be processed. Aggrieved, the petitioners filed an application in 2023 under the Right to Information Act, 2005 (RTI Act), regarding the status of the said application, but the same was rejected under Section 8(1)(j). Thereafter, they sent a legal notice to the CEO of CARA, which also received no response.
The Court stated that the language of Chapter IV-A of the 2021 Regulation was unambiguous and that the title itself makes it abundantly clear that the provisions were intended to govern situations in which adoptive parents, after a valid adoption under HAMA, seek to relocate the child abroad. It was noted that the child was adopted before the 2021 Regulations came into force, and the Court referred to Articles 5 and 17 of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention).
It was stated that the language of Regulation 22B (2) read with Regulation 22E (1) of the 2021 Regulations clearly conveyed the mandate that compliance with provisions of the said Articles of the Hague Convention was CARA’s responsibility once the verification report was received. Further, the Court noted that even under the Adoption Regulations, 2022, the procedure applicable to adoptions already concluded under HAMA remained unchanged.
The Court said that it would be wholly contrary to the express language of Regulation 22B of the 2021 Regulations and Regulation 67 of the 2022 Regulations, leaving prospective parents in the lurch, despite completion of adoption under HAMA prior to commencement of the 2021 Regulations. Hence, the Court held that it was untenable for CARA to abdicate its responsibility by issuing a mere support letter instead of an NOC, and to contend that the 2021/2022 Regulations were inapplicable to adoptions concluded under HAMA.
Further, noting Article 7 of the Hague Convention, the Court stated that it was incumbent upon the authorities concerned in both the State of origin as well as the receiving State to co-operate with each other in the paramount interest of the child’s welfare. It was noted that the officials concerned had proceeded on a misconception, completely missing the point that, where an adoption under HAMA had concluded before the 2021 Regulations, it was incumbent upon CARA to follow the requirements of the Hague Convention.
The Court directed CARA to appropriately follow up with the Canadian authorities and to convey the regulatory and statutory position as mentioned by the Court. It was noted that CARA had no objection to the validity of the adoption, and the Court directed that this position be made clear to the Canadian authorities, with a request to expeditiously conclude the exercise as provided in the Hague Convention. CARA was also directed to issue an NOC upon conclusion of the exercise.
Thus, the petition was disposed of.
Appearances:
For Petitioners – Ms. Nandita Rao (Sr. Adv), Ms. Mrinalini Sen, Ms. Aditi Singh, Mr. Karan Mishra, Mr. Ankur Raghav
For Respondents – Ms. Arunima Dwivedi (CGSC), Mr. Akash Pathak (GP), Ms. Swati, Ms. Himanshi Singh, Ms. Monalisa Pradhan
