Punjab and Haryana HC rules out the requirement of NOC from CARA where Adoptive Parents Are Indians
July 30, 2020, Thursday
The Punjab and Haryana High Court on Tuesday held that the Juvenile Justice Act, 2015 would not apply in cases of inter-country adoption of children being given directly by parents to relatives or known persons under the Hindu Adoption and Maintenance Act, 1956. The Bench comprising of Justice Nirmaljit Kaur also ruled out the requirement of obtaining a NOC from the Central Adoption Resource Authority (CARA) for issuing a passport to the adopted child, where the adoptive parents are Indians.
The said decision was taken by the Court while hearing a writ petition wherein the Passport Authority had refused to issue a Passport to the Petitioner who was given in adoption by her biological parents to her biological mother’s sister and her husband, who are NRIs, OCI cardholders and citizens of the United Kingdom. The passport was refused for want of NOC from CARA.
The Bench stated that “A perusal of the J.J Act, 2015 shows that it is a special provision for a limited class of children, those who are in conflict with the law, in need of care and protection, orphaned, surrendered or abandoned.” It was observed by the Court that in the said case, the child is being given over by the natural parents of sound mind, the adoptive mother is the real sister of the biological mother, and that the child is neither orphaned, nor surrendered nor in conflict with the law, and that for the same reason, the 2015 J.J. Act does not apply in the present situation.
The Court also noted that there is no dispute that the adoption has taken by Sikh persons and thus, they have the right to adopt the petitioner girl under the HAMA and that even if they are citizens of UK, their religion remains same and consequently, their right to adopt under the HAMA cannot be taken away. The Bench further stated that under section 16 of HAMA, a presumption shall be drawn that the adoption has been made in compliance with the provisions of the Act.
Justice Kaur stated that “Although the Court is of the view that an Indian or OCI with a British Passport, i.e., with British Citizenship will not lose their identity of being an Indian parent or Indian especially when they are called ‘Overseas Citizens of India’, nevertheless, the said debate is left open as no argument was raised qua the same by either side’.
The court observed that the NOC from CARA is required only by foreign parents and not India parents. Nevertheless, the Court directed the adoptive parents to obtain a simple NOC from CARA for a clean transition from one country to another, and for securing the interests of the petitioner child and the adoptive parents. However, the Bench proceeded to assert that the detailed tedious procedure prescribed under the J.J Act, 2015 and CARA is not required.
The said order on the case titled as Jasmine Kaur v. Union of India & Ors was made on the 28th of July.