Delhi High Court - Orders
Central Adoption Resource Authority vs Pkh on 14 January, 2019
Author: V. Kameswar Rao
Bench: Chief Justice, V. Kameswar Rao
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 518/2018, CM Nos. 36394/2018, 36395/2018, 36397/2018
CENTRAL ADOPTION RESOURCE
AUTHORITY ..... Appellant
Through: Mr. Gaurang Kanth, CGSC with
Ms. Biji Rajesh and Ms. Eshita
Baruah, Advs.
versus
PKH ..... Respondent
Through: Mr. Amit Sibal, Sr. Adv. (Amicus
Curiae) with Mr. Rohan Alva, Mr.
Ambar Bhushan, Mr. Saksham
Dhingra and Mr. Reshab, Advs.
Mr. Nikhil Goel, SPP with Ms.
Gurpreet Hora, Adv. for CBI.
Mr. Sudhir Nandrajog, Sr. Adv. with
Mr. Aniruddha Deshmukh, Adv. for
applicant in CM. No. 527/2019.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 14.01.2019 CM. No. 527/2019 (for impleadment)
1. Vide this order we shall dispose of this application filed by Ms. Preeti Goel Bishop, a resident of Pleasant Hill, California, USA with the following prayers:
"In the light of the aforesaid the applicant humbly prays that this Hon‟ble Court may be pleased to:-
(a) Allow the present application for impleadment under S. 151 of the CPC and implead the Applicant as a party Respondent in LPA No. 518/2018
(b) Direct the Appellant to file the amended memo of parties in LPA no. 518/2018 within a week of the present application being allowed;
(c) Direct CARA (Appellant) to register the Applicant and her husband as PAPs in the category of "relative adoption"
without insisting for family tree, within a period of one week, considering the fact that the prospective adoption is to be done under the provisions of HAMA;
(d) Consequent to prayer (c), direct CARA to permit the Applicant to contact the prospective non-relative biological parents, within one week;
(e) Direct CARA that, upon intimation of the prospective child‟s identify, CARA should complete its obligation in terms of Section 16 of Hague Convention and prepare a report within a period of 2 weeks thereof;
(f) Grant ad-interim relief in terms of Prayer (c) - (e) above;
(g) Any other order that this Hon‟ble Court may deem fit in the facts and circumstances of the case."
2. The facts as noted from the application are that the applicant is Hindu and an Indian citizen born and brought up in India. She is an Advocate by profession and currently enrolled with the Bar Council of Delhi since, 2005. She is currently residing in United States (US) and is also licensed as an attorney in California. She married a US citizen in 2015, but the couple has not been blessed by a natural child. Accordingly, the couple being prospective adoptive parents (PAPs) are desirous of adopting a child and have decided to adopt a Hindu child under the Hindu Maintenance and Adoption Act, 1956 (hereinafter referred to as HAMA) from India having regard to the culture, ethnicity and identity roots and the citizenship of the proposed adoptive mother, which are important to the PAPs.
3. It is the case of the applicant in the application that since, she is currently staying in US and the proposed adoption is in this country, her case is of inter-country adoption. Under HAMA any person is capable of being taken in adoption, if they are Hindu and Hindu PAPs can take a child in adoption and Hindu biological parent can give a child in adoption. It is stated that there are no other restrictions under HAMA including for inter- country adoption or otherwise. It is averred that all inter-country adoption are governed by the provisions of Hague Convention with which PAPs have complied. However, the steps to be taken in India require the appellant CARA, India's only designated authority, to perform its duty under Article 16 of the Hague Convention and prepare and transmit a child and submit a report regarding the adoptability of the child. It is her case the best interest of the child is safeguarded by biological parents wherever available and by the state where the biological parents are not available. Thus, the PAPs and the child are entitled to proceed with a valid inter-country adoption and the central authorities of both the countries are under obligation under the Hague Convention to facilitate the process. According to the applicant, this aspect has been appreciated by the learned Single Judge in the impugned judgment which is under challenge by CARA. It is her case she has been deprived of the benefit of the said judgment due to CARAs erroneous interpretation that its role is only to facilitate inter-country adoption under the Juvenile Justice Act. According to her, thus CARA's interpretation violates the human rights, fundamental rights and international rights as well as the Indian Constitution and the statutory law. It is because is not giving the benefit of the judgment, she intends to become a party to this appeal and seek relief as covered by the judgment. She has also stated that in terms of the Hague Convention namely Article 14, the PAPs applied to the Central Authority in the United States and engaged an authorized Foreign Adoption Agency as is the requirement not only under the Hague Convention, but also under the Regulations created by CARA. Para 10 of the application sums- up the steps taken by the PAPs to satisfy the requirements of the Hague Convention. The same are not repeated for the sake of brevity. It is averred that after being found suitable and eligible to adopt by the receiving State pursuant to Article 5 of the Hague Convention, the PAPs worked on collecting the Schedule-VI documents to enable the Authorized Foreign Adoption Agency (AFAA) to register them with CARA. The AFAA on behalf of the CARA asked for documents pertaining to the child including the family tree and biological parents consent, as a pre-requisite to registration. Vide e-mail dated 1st December, 2018, the PAPs pointed out that the documents demanded by CARA through AFAA do not find mention in the Schedule-VI and moreover that CARA's authorization was first needed before the PAPs could even contact with biological parents for obtaining their consents. AFAA in response vide e-mail dated December 4, 2018 despite agreeing with the applicant expressed its inability to change any requirement as the same was being demanded by CARA and not by them. It is the case of the applicant that the PAPs are not in a position to furnish the requisite particulars of any child or biological parents' consents without express written authorization by CARA to contact prospective child's family. This is a requirement of the receiving state and Article 29 of the Hague Convention. Further the PAPs are unable to furnish the family tree inasmuch as the proposed adoption is under HAMA. A reference is also made in the application about an opinion sought from the ASG on the issue whether inter-country adoption under HAMA is covered by CARA Regulations, 2017. It was opined that in view of Section 56 (3) of the J.J. Act, inter-country adoption under HAMA are unaffected. In any case, it is her stand that in view of the judgment, the CARA is also obligated under Hague Convention and Section 68(d) of Juvenile Justice Act to facilitate every legitimate inter-country adoption including one under HAMA. Hence, a direction has been sought against CARA register the applicant and her husband as PAPs considering the fact that the prospective adoption is to be done under HAMA and further for a direction to CARA to permit the applicant to contact the prospective biological parents and further to immediately proceed with the obligation under Article 16 of the Hague Convention.
4. The appellant CARA has filed a reply to the application, wherein it has stated that the applicant is not a necessary party to the present appeal and the application is liable to be dismissed. It is stated that irrespective whether adoption is done under any personal law or otherwise, for any inter- country adoption, the NOC of the appellant is a mandatory requirement. It is averred that the order of the learned Single Judge has been challenged by CARA to the extent that the learned Single Judge has held NOC from CARA is not required for any inter-country direct adoption under the Juvenile Justice Act and the guidelines of 2011. It is averred that CARA can issue NOC only if the adoption is in accordance with the requirement of the Hague Convention and the provisions of Juvenile Justice Act, 2015. It is also stated that for inter-country adoption in addition to follow the due process of law for adopting a child under the Indian Law, the parties are under the obligation to follow the Hague Convention. The appellant CARA has also stated in Para 8 (viii) of its reply as under:
"That, hence, as per the said Adoption Regulations, 2017, in the Inter Country Adoption process, in which the Indian Child is taken in adoption by a on Resident Indian / Overseas Citizen of India / Foreign Prospective Adoptive Parents, the Appellant issues „No Objection Certificate‟ in two circumstances:
(a) In case of Inter Country Adoption, as per Chapter IV, the Authorized Foreign Adoption Authority (herein after referred as AFAA), after conducting the Home study and all other requirements under the Hague Convention, register themselves with the Child Adoption Resource information and Guidance system in the format along with the required documents as specified in Schedule VI of the said Notification. The appellant, after satisfying itself with the eligibility of the prospective parents, in consultation with the Specialized adoption agencies in India, refer to profiles of 2 (two) children to the AFAA, who in turn, shall share it with the prospective adoptive parents accept the child, the adoption process will proceed and the Appellant will issue a NOC to the prospective adoptive parents for adopting the child legally under the JJ Act, 2015 after the receipt of Articles 5 & 17 from the State of Receiving.
(b) That as per Regulation 53, Inter Country Relative Adoption is also possible. In this process, the procedure is comparatively simple. In this procedure, the AFAA will register the prospective parents with Child Adoption Resource information and Guidance system. Since the child is a relative, as defined in Section 2 (52) of the JJ Act, 2015, and the prospective adoptive parents have already identified the child to be adopted. The prospective adoptive parents have to provide the details of the child along with other relevant documents pertaining to child to the Authority at the time of registration itself which again is done by AFAA and all documents as per Schedule VI of the Adoption Regulations 2017 including Home Study Report and Articles
5 and 17 are uploaded on CARINGS portal. The Appellant, after source verification of the child at their end, required under Article 4 of the Hague Convention for Inter-Country Adoption, issues the No Objection Certificate to the prospective adoptive parents qua the particular child for whom they have sought the permission, as provisioned under Article 17 of the Hague Convention for Inter-Country Adoption."
5. Further in Paras (ix) (x), (xi) and (xii) the appellant CARA has stated as under:
(ix) That from the prevalent legal framework of the Country, the Appellant cannot grant NOC to any prospective adoptive parents for adoption without identification of the child or without undergoing the process mentioned therein in the prevalent Statute. The NOC is issued to the specific prospective parents for adopting a specific child after duly complying with the provisions of the JJ Act, 2015, Adoption Regulation, 2017 and Hague Convention for Inter Country Adoptions. If it is an Inter Country Relative Adoption, the prospective adoptive parents have to submit the details of the child and all other relevant documents pertaining to the child to be adopted at the time of registry itself. However, in the case of a Inter Country Adoption of an orphaned / abandoned / surrendered child from Specialized Adoption Agency, the Appellant will refer a child legally for adoption the to the prospective parents, as per their seniority and availability for the child, for adoption.
(ix) That in the present case, it appears from the documents annexed along with the CM. No. 527/2019 that the prospective adoptive parents have tried to upload their details through the portal available for „Inter Country Relative Adoption‟. In order to complete the said method, the details of the child to be adopted along with the relation with the prospective adoptive parents have has to be provided, as the Appellant needs to verify the details of the child to be adopted. If the prospective adoptive parents want to register for adopting a child from a Specialized Adoption Agency, then there is no need to give the details of the child, as the child is to be referred by the Appellant to the prospective adoptive parents, as per their seniority in the list and also as per the availability of the child. Hence without identifying the child to be adopted, no NOC can be issued to any prospective adoptive parents.
(xi) That the cases in which the Applicant is relying upon are totally different from the facts and circumstances of the present case and the issue is also totally different from the present case. In all the cases in which Applicant is relying upon are before the enactment of the JJ Act, 2015. The details of the said judgments are as follows:
PKH Vs CARA (W.P(C) NO. Adoption is done under HAMA 5718/2015) (The present before the enactment. Appeal is arising out of this Order) Anokha Vs State of Hon‟ble Supreme Court allowed Rajasthan (W.P(C) guardianship in the adoption case.
7022/2003) Supreme Sneha Prem Sachar Vs Adoption is done under HAMA CARA (W.P. (C) No. 8116/2015 before the enactment of JJ Act, 2015 Bharthi Viswanathan Vs Adoption is done under HAMA CARA W.P.(C) 3754//2016 before the enactment of JJ Act, 2015. Mandeep Kaur v. CARA, Adoption is done under HAMA W.P.(C) 3776/2016 before the enactment of JJ Act, 2015.
(xii) That the Appellant is not granted NOC to any one who has done direct adoptions after the enactment of JJ Act, 2015. Hence the present impleadment is to be dismissed outrightly.
6. We have heard the learned counsel for the parties. The application being for impleadment, the grounds on which the applicant is seeking her impleadment are, that despite a judgment of the learned Single Judge of this court, the benefit of the same is not being given to her. In view of the pendency of the appeal in this court, we find the ground is justifiable. Accordingly, we allow the impleadment of the applicant namely Preeti Goel Bishop as a respondent in this appeal. Let amended memo of parties be filed by the appellant CARA within two weeks from today.
7. In so far as the other reliefs which have been sought for by the applicant are concerned, there is also no dispute that the applicant is an Indian citizen and is married to a US citizen. The PAPs do not have a biological or adopted child and she wishes to adopt a child in India. Under the Hague Convention, every country should have a Central Authority, which will be a sole authority to approve to any inter country adoption. India's Central Authority is the appellant herein, i.e. Central Adoption Resource Authority (CARA). There is also no dispute that the PAPs have engaged Authorized Foreign Agency as required by CARA and Hague Convention. They have undertaken a home study where financial, medical, social, employment, criminal, cultural and family investigations have thoroughly been examined and completed. They have been found eligible to be adoptive parents, competent and eligible to adopt a child. The credentials are not in dispute. In Para 85 of the Judgment under appeal it is stated as under:
"85. Since arguments were advanced with regard to the scope and interpretation of Act, 2015, this Court clarifies that though there is some ambiguity as to whether the Act, 2015, applies to inter-country direct adoptions, yet it is of the opinion that the scope of Section 60 of the Act, 2015, should be expanded to cover all forms of inter-country direct adoptions. This interpretation would advance the best interest of the child whose family wishes to give him/her in adoption and also ensure that the sanctity of the adoption process is respected and the best interest of the child is scrupulously safeguarded. This Court may mention that in exercise of its writ jurisdiction, it has the power to expansively interpret a provision of a statute in order to achieve the objects and reasons which the law seeks to achieve and to reach injustice wherever it is found. [See Dwarka Nath Vs. ITO, (1965) SCR 536]
8. The aforesaid clearly reveals that this court has already held that the scope of Section 60 of the Act of 2015 should be expanded to cover all forms of inter-country adoptions, which surely includes the adoption under the provisions of HAMA. This is primarily to advance best interest of the child whose family wishes to give him / her in adoption and also ensure that the sanctity of the adoption process is respected and the best interest of the child is scrupulously safeguarded. That apart this court has not stayed the operation of the impugned judgment.
9. We are accordingly of the view that the present application filed by the applicant needs to be allowed inasmuch as the appellant CARA shall register the applicant and her husband as prospective adoptive parents (PAPs) as expeditiously as possible preferably within two weeks from today and allow the applicant to contact the prospective biological parents and adoptive child. It goes without saying that after this process is over, the appellant CARA should comply with the obligation in terms of Section 16 of the Hague Convention.
The application stands disposed of.
CHIEF JUSTICE V. KAMESWAR RAO, J JANUARY 14, 2019/jg