Delhi High Court calls out US couple for not adhering to right laws for adoption in India, but allows custody since child is "well taken care of"

A couple from the United States was called out by the Delhi High Court for trying to adopt a child in India under the Hindu Adoptions and Maintenance Act (HAMA) even as they belonged to a different faith [Js & Anr v. Central Adoption Resource Authority & Anr]..The Court, however, took a humanitarian view and granted the custody of the child to the couple in the child's interest..Justice Asha Menon observed that no doubt, the couple had been struggling to adopt the child, but that they had “only themselves to blame”..At the outset, Justice Menon lamented,"This case reflects how easily it is possible to set at naught the law intended to protect the welfare, well-being and the rights of the minors. A complete go by has been given to the provisions of the Juvenile Justice (Care and Protection of Children) Act...".The Court made it clear that children can be adopted regardless of the religion of the adoptive parents, as long as the procedure under law is adhered to."It is, thus, clear that a person interested in adopting a child is not limited by his or her religion, if adoption is sought under the JJ Act. However, in order to adopt a child under Sections 58 and 59(3), it is equally imperative that the provisions of the JJ Act read with CARA Guidelines and now, the Adoption Regulations, 2017, are also to be followed to the "T".".The couple had sought directions to the Central Adoption Resource Authority (CARA) to issue them a no-objection certificate (NOC) in order to adopt the child besides directions to the passport authority for the child’s passport with their names as parents.They knocked on the High Court’s doors after CARA refused to issue the NOC on the ground that the child hadn’t been “validly adopted” by the prospective parents. Similarly, a Regional Passport Office did not issue the passport..The High Court was cognizant of the fact that the couple had, instead of following the procedure under Juvenile Justice (JJ) Act, drawn an adoption deed under the HAMA.“No court has declared the minor to be the adopted child of the petitioners. The procedure prescribed for adoption under the JJ Act has also not been adhered to. The CARA cannot be blamed for sticking to the rules,” Justice Menon pointed out. The Court stressed that the couple, being Christians, could not have executed an adoption deed under the HAMA..Counsel representing the couple submitted that his clients had acted on “wrong legal advice” and that the couple’s relative, Sister EA, who worked as social worker in the city where the child belonged, had acted out of compassion to help the couple adopt the child. He further submitted that the child’s biological parents, being migrant labourers, were not in a position to take care of the child.With the help of Sister EA, an adoption deed was drawn, but the couple started facing hurdles when they tried to procure a passport for the child in order to take the child to the USA. The couple’s efforts for declaration of the minor as their adopted child in civil courts in 2015 and again in 2018, also bore no fruit..It came on record that the child had been handed over by the biological parents to Sister EA immediately after birth. There was also a statement of the biological father that he had put his child up for adoption to the petitioners..After taking account of the facts before it, the Court ultimately decided,“There is no court order declaring the minor to be the adopted child of the petitioners. In fact, probably being aware of the procedure for adoption, no specific prayer has been made in the instant petition to this Court for such a declaration. Be that as it may, this Court is inclined to explore such a possibility.".For the following reasons, the Court allowed the couple to adopt the child:(a) The child has been handed over by the biological parents to Sister EA immediately after the birth and since then, has been taken care of by the family members of the petitioners.(b) A statement was made on oath by the biological father of the minor that he had given his child in adoption to the petitioners...what can be accepted is that the intent of the biological parents was to surrender the child for adoption and instead of stating so before the CWC, which would have then put up the child for adoption in terms of the Rules, a "direct adoption” was facilitated by Sister EA, which was against the law.(c) Though what Sister EA did was most improper...nevertheless, it does not appear that Sister EA was indulging in trafficking of children for the purposes of adoption.(d) It does reflect that the petitioners are well placed in life and are quite capable of taking care of a child given to them in adoption...petitioner No.2 is herself an adopted child and it appears that the family and the extended family are quite comfortable with the thought of bringing into the family, an adopted child. The family history of petitioner No.2 would show that the parents of petitioner No.2, though Christians, had taken a child in adoption and had taken good care of that child.(e) Child Welfare Committee, Kollam observed that the life of the child is safe at the hands of the petitioners..On the basis of an overall picture, the Court held that child had not been trafficked. “Though no formal surrender was made by the biological father before the CWC…he has affirmed on oath before the Additional Civil Judge (Senior Division)… that he had handed over the child for adoption voluntarily. Though there is no valid adoption of the child, the petitioners and the parents of the petitioner No.2 have taken good care of the child,” it stated.The judgment, therefore, declared the child as someone who is fit for adoption.“The child is now more than six years old and is being well taken care of by the petitioners and the parents of the petitioner No.2 and there is no cause to remove the child from their charge and custody. Petitioners are fit and qualified to seek adoption of their foster child as enabled by the new rules…child be given in adoption to the petitioners,” it held.While allowing the couple to become adoptive parents of the child, the Court ordered that the they will be vested with all the rights, privileges and responsibilities that are attached to a biological child..CARA was accordingly directed to issue the requisite NOC and not insist on compliance of provisions of the JJ Act dealing with Non-Resident Indians (NRI) or Overseas Citizens of India (OCI).The couple was directed to furnish an undertaking to the Registrar General of the High Court to raise the minor as their own biological child and give adequate educational and other developmental opportunities within their means while taking care of the medical needs.CARA, in the meantime, was further directed to ensure that all persons working in child care institutions are made fully aware of the adoption process so that no one is misguided..The petitioners were represented by Advocates Samar Bansal, Kartik Nagarkatti, Devahuti Pathak, Sachin Mishra, Aman Vishal and Harsheen Madan Palli. The respondents were represented by Advocates Biji Rajesh and Arnav Kumar..[Read the order]