Justice Sachin Datta, Delhi High Court
Concluded Adoptions Under HAMA Must Comply With Extant Requirements Of The Act Itself; Adoptions Can’t Be Retrospectively Subject To Other Extraneous Requirements: Delhi High Court
|The Petition before the Delhi High Court was filed seeking a direction to the Central Adoption Resource Authority (CARA) to issue a ‘No Objection Certificate’ (NOC) for taking the adopted child to Australia.
The Delhi High Court has recently asked the Central Adoption Resource Authority to issue a ‘No Objection Certificate’ for taking a child to Australia pursuant to the adoption undertaken by the adoptive parents, who are Australian citizens. The High Court observed that concluded adoptions under the Hindu Adoption and Maintenance Act can’t be retrospectively subject to any other extraneous requirements.
The Petition before the High Court was filed by the petitioners seeking that the second respondent- Central Adoption Resource Authority (CARA) be directed to issue a ‘No Objection Certificate’ (NOC) for taking petitioner 2 (child) to Australia pursuant to the adoption of the petitioner child by the first petitioner and her husband.
The Single Bench of Justice Sachin Datta said, “The implication of the above is that concluded adoptions under HAMA, are required to comply with the extant requirements set out in HAMA itself, and cannot be retrospectively subject to any other extraneous requirements / preconditions.”
Advocate Sheena Chhabra represented the Petitioner while CGSC Pratima N. Lakra represented the Respondent.
Factual Background
The petitioners belong to a Sikh family. The adoptive father is the elder brother of the biological father. The adoptive parents are citizens of Australia, and they do not have a biological child. On the other hand, the biological parents already have a son along with Petitioner 2. It was agreed within the family that the biological parents would give the petitioner-child in adoption to the adoptive parents with free consent and without any fear or favour. It was the petitioners’ case that in the year 2020, the adoptive parents approached the CARA to issue the requisite NOC, which is mandatorily required to obtain a visa for the child to take him to Australia. It was emphasised that since then, the matter had been languishing and the requisite NOC had not been issued by the respondent, CARA.
Reasoning
The Bench took note of the fact that the concerned Adoption Deed was executed in 2020. The same, along with the necessary photographs showing handing over / taking over of the child, had been duly filed along with the present petition. It was further noticed that even the Australian Authorities, as per the applicable law, had confined to seeking certification as regards compliance with HAMA, and only a support letter was required from CARA on account of the fact that the present case is a HAMA adoption duly registered before September 2021.
The Bench affirmed that the petitioners had rightly relied upon the judgment of the Supreme Court in Prema Gopal v. Central Adoption Resource Authority & Ors. (2024), where the act of giving and taking of the children was performed in 2020. It was observed therein that there can be no hurdle in the consideration of the case of the petitioner therein, having regard to the provisions of the Adoption Regulations, 2022 and considering that the adoption took place before the coming into force of the said regulations. Specific directions were also issued to CARA to issue a No Objection Certificate to the petitioner.
The Bench thus said, “As such, the respondent no. 2 is bound to follow the same procedure in the present case as well; after considering the certificate issued by the District Magistrate, the matter is required to be processed for issuance of a No Objection Certificate/support letter, as sought by communication dated 19.03.2024 issued by the Department of Home Affairs, Australian Government.”
Reference was made to a judgment Narinderjit Kaur v. Union of India and Another (1997), wherein it has been observed that a child can be adopted “under the authority” of the parents. The Court noticed that the concerned Adoption Deed had already been registered based on the Power of Attorney in question. The religious rituals and ceremony for adoption were executed in the year 2020 (much before registration of the Adoption Deed) in the presence of the adopted parents and biological parents, and the handing over and taking over of the child also happened on that day itself. There was no controversy that the Adoption Deed that was executed thereafter was based upon authorisation given by the adoptive parents in favour of their mother, who is also the mother of the biological parents.
Thus, holding that there was no impediment in issuing the requisite NOC to take the petitioner-child to Australia, the Bench ordered, “...the respondent no. 2 (CARA) is directed to issue the requisite NOC to the petitioners within a period of four weeks from today.”
Cause Title: Jasleeniqbal Sidhu & Ors. v. Union of India Through Principal Secretary & Ors. (Neutral Citation: 2025:DHC:4884)
Appearance:
Petitioner: Advocates Sheena Chhabra, Anjani Chhabra, Aakashi Gupta, Shilpa Chaurasia
Respondent: CGSC Pratima N. Lakra, Advocates Chandan Prajapati, Shailendra Kumar Mishra, Chandni Godiyal, P. Chandni, Sumit Bhargava, Asst. Director for CARA G. Ravi