Delhi High Court
Ravi Ganjoo vs Union Of India & Ors. on 23 February, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23 February, 2022
+ W.P.(C) 8834/2021
RAVI GANJOO
..... Petitioner
Through: Mr. Siddharth Shankar, Ms. Sushma
Shekhar and Ms. Mallika Sundriyal,
Advs. with petitioner in person.
versus
UNION OF INDIA & ORS.
..... Respondents
Through: Ms. Nidhi Raman, CGSC with
Mr. Zubin Singh, Adv. for R-1 to
R-3/UOI
Mr. Rupesh Kumar, Ms. Pankhuri
Srivastava, Mr. Pravesh Bahuguna
and Mr. Rudraksh Pandey, Advs. for
CBSE.
Ms. Biji Rajesh, Adv. for
Mr. Gaurang Kanth, SC for CARA
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
CM No. 5393/2022
1. This application has been filed by the petitioner with the following prayers:
"In view of the present facts and circumstances, it is most humbly and respectfully prayed that this Hon'ble Court may graciously be pleased:
(A) To Direct the Respondent No. 4 to issue "NOC" to the Applicant; and Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV W.P.(C) 8834/2021 Page 1 Signing Date:23.02.2022 17:26:36 (B) To Direct the Respondent No. 1 to 3 to issue a valid passport in the name of 'Trisha Ganjoo', while recording the name of Applicant and his wife as her 'Father' and 'Mother', on the passport; and (C) Directing the Respondent No.5 to change the parentage of minor girl 'Trisha Ganjoo', while recording the Petitioner's name as 'Father' and his wife's name as 'Mother', on her Matriculation Certificate, without insisting for Gazette Notification and Newspaper publication or any other requirement; and (D) Any other or such further order(s) as this Hon'ble Court may deem fit and proper, may also be passed."
2. The writ petition has been filed by the petitioner praying for a direction against the Passport Authority for issuance of a passport to a minor girl Trisha Ganjoo ('minor girl' hereinafter) by recording the names of the petitioner and his wife as father and mother on her passport. A further direction has been sought against the Central Board of Secondary Education ('CBSE', for short) to change the name of the parents of the minor girl on her matriculation certificate and record the petitioner and his wife's name as adoptive parents.
3. It is the case of the petitioner that he is the paternal uncle of the minor girl, whose parents namely Sanjay Ganjoo and Alka Ganjoo had expired in a road accident on June 2, 2005. The petitioner and his wife Illa Ganjoo have legally adopted the minor girl under the provisions of Hindu Adoptions and Maintenance Act, 1956 ('HAMA', for short) after taking due permission from the District Judge in terms of the Judgment dated December 23, 2008. His request for issuance of passport was rejected by the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV W.P.(C) 8834/2021 Page 2 Signing Date:23.02.2022 17:26:36 passport authority. The passport authority vide letter dated July 5, 2021 addressed to the minor girl had called upon the petitioner to furnish certain documents including 'No Objection Certificate' from Central Adoption Resource Authority ('CARA' for short).
4. In the short-affidavit filed by respondent Nos. 1 and 2 it is stated that the petitioner who is a US citizen holding a US passport has applied for the passport of the minor girl by relying upon the adoption deed executed in 2019 along with the order dated December 23, 2008 of the learned District Judge. Since the petitioner is a US citizen, the present case falls under the category of inter-country adoption. A reference has been made to the Passport Manual, 2020 for issuance of passports to all the applicants under the category of inter-country adoption, wherein a reference has been made with regard to the following documents:
"a) Conformity Certificate issued by CARA;
b) No Objection Certificate (NOC) from CARA (if original NOC of CARA is not available with the applicant due to the reason that it has been submitted in the court, a copy of the same duly certified / attested by CARA may be accepted by the PIA for the issue of passport);
c) Court order on adoption of certified copy thereof; and
d) Any other document, if required, for the issuance of passports to minor children."
Reference is also made to Rule 5 of the Passport Rules and the appropriate forms set out in Part I of Schedule 3 of Rule 5.
5. Respondent Nos. 1 and 2 have also stated that the issue of requirement of NOC by CARA has been dealt with by the High Court of Punjab and Haryana in a Judgment dated July 28, 2020 in Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV W.P.(C) 8834/2021 Page 3 Signing Date:23.02.2022 17:26:36 the case of Jasmine Kaur v. Union of India and Ors., CWP 10555/2019. Reference is also made to the Judgment of a Coordinate Bench of this Court in the case of R.K. and Anr. v. Central Adoption Resource Authority dated August 31, 2021 in W.P.(C) 279/2019 and connected matters, wherein this Court in paragraphs 79 and 85 to 88 has stated as under:
"79. An analysis of the various judgments, the JJ Act, 2000, the JJ Act, 2015 and the regulations thereunder, as also the Hague Convention, leads this Court to the following conclusions:
(1) The provisions of the JJ Act, 2015 apply in respect of orphaned, abandoned, surrendered or abused children. (2) In view of the clear exclusion in Section 56(3), the JJ Act, 2015 would not apply in respect of valid adoptions under HAMA - whether domestic or inter-country. Thus, domestic and inter-country adoptions where the parties are Hindus and the adoption has already been validly carried out in terms of the provisions of HAMA, do not fall within the purview of the JJ Act, 2015.
(3) In view of Art.37 and other provisions of the Hague Convention, adoptions under HAMA are duly recognized. (4) Persons belonging to communities other than those governed by HAMA may resort to the provisions of the JJ Act, 2015 for effecting adoptions. In addition, persons who are governed by HAMA also have the option of effecting adoptions under the JJ Act, 2015 in view of Section 56(2) (5) Courts have verified various factors such as credibility of the adoptive parents, consent of the biological parents, nature of documents executed, Court orders if any, financial status of the adoptive parents, home study reports, duration for which the child has already been living with the adoptive parents, the condition of the child etc. After taking all these factors into consideration, upon Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV W.P.(C) 8834/2021 Page 4 Signing Date:23.02.2022 17:26:36 satisfaction that the welfare of the child is taken care of, Courts have either directed CARA to issue an NOC or directed issuance of a passport for the child to travel with the adoptive parents to a foreign country. (6) The Hague Convention encourages issuance of an NOC for recognition of inter-country adoptions. (7) In the existing framework of the JJ Act, 2015 and the Regulations thereunder read with HAMA, there is a clear gap in the law as to the manner in which -
• inter-country adoptions under HAMA are to be recognised; and • adoptions already recognized under HAMA are to be given effect to for the purposes of inter-country adoptions by biological parents or relatives, to third parties or otherwise.
xxxx xxx xxxx
85. In view of the fact that currently no permanent mechanism exists for inter-country direct adoptions under HAMA, bearing in mind the welfare of children, which is of utmost importance in cases of adoptions, as also to ensure that there is no trafficking of children, the Ministry of Women & Child Development, Govt of India, is directed to place a report before this Court as to the manner and mode of creating a permanent mechanism to deal with intercountry adoptions under HAMA, both direct and indirect and place the said report before this Court within a period of two months.
86. However, until a proper permanent framework is put in place, to ensure the welfare of the adopted children and to provide a timely mechanism for the biological/adoptive parents as also the child, in view of the experience of CARA in dealing with inter country adoptions, it is deemed appropriate to direct CARA to act as the Authority for the purposes of enabling inter country adoptions under HAMA.
Signature Not Verified Digitally Signed By:ASHEESHKUMAR YADAV W.P.(C) 8834/2021 Page 5 Signing Date:23.02.2022 17:26:36
87. There is no existing procedure currently under CARA for adoptions under HAMA. However, there is a shortened procedure that already exists in respect of adoptions which were effected prior to the coming into force of the JJ Act, 2015. In respect of such adoptions, the requirements are considerably reduced, as set out in paragraph 64 above. A similar shortened procedure could be followed for issuance of an NOC in case of inter country adoptions which are already recognized under HAMA.
88. Thus, whenever any inter-country adoption takes place under HAMA and a NOC is required for any purpose, including for issuance of a passport or VISA, upon an application being filed before CARA, a special Committee would be appointed to verify the following particulars:
a. The background and antecedents of the biological parents or Family background report and source verification of the child (or CWC certificate). b. Verify the consent of the biological parents and that of the child, if needed based upon the age and maturity, for the adoption;
c. Details of any religious ceremony conducted; d. Details of the adoption deed and its genuinity/validity; e. Court order, if any, recognizing the adoption; f. Home Study Report of the prospective adoptive parents with support documents;
g. Permission letter from receiving country or permission letter from Embassy of the receiving country in case of OCI/Foreigner."
6. In substance, the stand of the respondent Nos. 1 and 2 is that in view of the aforementioned rules and procedures, the petitioner has been advised vide letter dated July 5, 2021 to produce NOC from CARA as the present case is inter-country Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV W.P.(C) 8834/2021 Page 6 Signing Date:23.02.2022 17:26:36 adoption. A short affidavit has also been filed by CARA wherein in paragraphs 4 to 10, the following has been stated:
"4. It is submitted at the outset that the procedure of adoption of the minor child 'Trisha Ganjoo' undertaken by the Petitioner is admittedly under the Hindu Adoptions and Maintenance Act 1955 (HAMA) and not under the Juvenile Justice (Care and Protection of Children) 2015 (JJ Act) read with the Adoption Regulations 2017 (Regulations).
5. That in the present case, the Petitioner had obtained permission from the Ld. District Judge under Section 9 (4), HAMA vide judgment dated 23.12.2008 to adopt minor child 'Trisha Ganjoo' who is the daughter of the late brother of the Petitioner. A deed of adoption dated 07.08.2019 was executed by the Petitioner and his wife to adopt minor child 'Trisha Ganjoo' which was observed in the order of the Ld. District Judge dated 20.09.2019. In light of the above, the Petitioner has averred that him and his wife are adoptive parents of minor child 'Trisha Ganjoo' under the HAMA.
6. That it is pertinent to mention that recently, the Ministry of Women and Child Development has notified the Adoption (Amendment) Regulations 2021 (Regulations 2021) on 17.09.2021 under the newly added chapter VIA which provides for a separate mechanism for children adopted under the HAMA who are to be relocated abroad.
It is submitted that the Regulations 2021 stipulate a procedure for those adoptions where deeds have been executed prior to the date of notification of the Regulations 2021, which was earlier governed by Regulation 53-55, Regulations of 2017.
22A. Application or Chapter. -{l} This Chapter shall apply to-
(a) all adoption cases under the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) by prospective adoptive parents or adoptive parents residing outside the country.Signature Not Verified Digitally Signed By:ASHEESH
KUMAR YADAV W.P.(C) 8834/2021 Page 7 Signing Date:23.02.2022 17:26:36
(b) all adoption cases pertaining to countries outside the Hague Adoption Convention.
(2) The Central Adoption Resource Authority shall register applications for Inter-Country Adoptions concluded under the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956).
7. That Regulation 228 of Adoption Regulations, 2021 is reproduced hereunder:
"22B. Procedure in the case of registered adoption deed. -
(1) In the cases where the adoption deed has already been executed in pursuance of adoption under the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), before the commencement of the Adoption (Amendment) Regulations, 2021, the requisite documents supporting the facts of the adoption deed shall be duly verified and recommended by the District Magistrate in the format as provided in Schedule XXXIII.
(2) On receipt of the verification of documents as per Schedule XXXIII, the Central Adoption Resource Authority shall comply with the provisions of Articles 5 or 17 from the receiving country as provided in the Hague Adoption Convention. (3) Upon receiving such certificate, the Central Adoption Resource Authority shall issue no objection certificate for Hague ratified countries and in cases of countries outside the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption, a letter accepting the said adoption from the Government department concerned of the receiving country shall be sought by the Central Adoption Resource Authority in order to issue the final support letter from the Central Adoption Resource Authority."Signature Not Verified Digitally Signed By:ASHEESH
KUMAR YADAV W.P.(C) 8834/2021 Page 8 Signing Date:23.02.2022 17:26:36
8. In the present case, admittedly, the Adoption Deed was registered on 07.08.2019. As per Regulation 22A, the present case is squarely covered by the procedure mentioned therein.
9. That as per the new mechanism, the Petitioner would be required to satisfy the District Magistrate as to the propriety and genuineness of the adoption as per Schedule XX.XIII, Regulations 2021. Subsequently, upon compliance with the verification procedure, the answering Respondent would comply with the provisions of Article 5 and Article 17 of the Convention On Protection Of Children And Co-
Operation In Respect Of Inter-country Adoption 1993 (Hague Adoption Convention), whereby the eligibility of the prospective adoptive parents i.e. the Petitioner and his wife would have to be confirmed by Central Authorities of the receiving state i.e. USA. Upon receipt of such certificates in compliance with Article 5 and Article 17 of the Hague Adoption Convention, the answering Respondent would be issuing the NOC to the prospective adoptive parents. A copy of the Gazette Notification of Adoption (Amendment) Regulations. 2021 is placed at Annexure-R1
10.That the Petitioner upon submitting the relevant documents and following the procedure given in Chapter IV A of the new Regulations 2021, the answering Respondent undertakes to process the Application for the issuance of NOC as expeditiously as possible in a time bound manner and in accordance with law.
7. When the matter was listed on February 11, 2022, the counsel for the petitioner had expressed an urgency in the matter inasmuch as the minor girl has applied for her admission in US Universities and has to write TOEFL examination, for which the details of her passport need to be furnished in the application forms. On that submission, I had asked Ms. Nidhi Raman, learned CGSC appearing for respondent Nos. 1 and 2 to take instructions Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV W.P.(C) 8834/2021 Page 9 Signing Date:23.02.2022 17:26:36 as to whether the minor girl can apply for passport giving the names of her biological parents. During the hearing of the petition on February 14, 2022, Ms. Raman submitted that the passport cannot be issued to the child incorporating the names of her biological parents as there is already a registered adoption deed.
8. On this submission, I had asked Ms. Biji Rajesh, learned counsel appearing for respondent CARA to take instructions. I may state here, during the hearing on January 31, 2022, representation was made before the Court that the District Magistrate being the competent authority under the Juvenile Justice (Care and Protection of Children) Act, 2015, is to carry out the verification and authenticate the adoption under HAMA. It was also noted that CARA has issued a letter dated November 30, 2021 to the District Magistrate (North-West District), Kanjhawala, Delhi to carry out the verification and it was the submission of Mr. Anupam Srivastava, ASC, GNCTD by drawing my attention to the document filed on record by the District Magistrate, which is a letter dated June 2, 2022 stating that the verification certificate has been issued by District Magistrate concerned to the Director (Programme), CARA on February 5, 2022. It was submitted by Ms. Rajesh that CARA has written to the US Central Authority for inter-country adoption on February 16, 2022 in terms of the requirement under Article 5/17 of the Hague Adoption Convention and once they receive information from the US authorities, further action for grant of NOC shall be taken by CARA.
Signature Not Verified Digitally Signed By:ASHEESHKUMAR YADAV W.P.(C) 8834/2021 Page 10 Signing Date:23.02.2022 17:26:36
9. From the submissions advanced by the counsel for the parties, it transpires that the passport of the minor girl cannot be issued in the absence of NOC from CARA. That apart, even the passport authorities, i.e., respondent Nos.1 and 2 have also shown their inability to issue passport to minor girl depicting the name of her biological parents.
10. In view of the urgency expressed by the learned counsel for the petitioner that though the minor girl has applied for admission in universities in USA, the fact remains that for the universities to process the forms and also to enable the minor girl write TOEFL examination, the details of her passport need to be furnished. In the absence of the same, she shall not get admission nor can she write TOEFL examination.
11. This Court has considered the peculiar situation, which has arisen in this case, where a minor child cannot apply for a passport either in the name of her biological parents or in the name of her adoptive parents, because of which she is unable to pursue her academics in USA. This Court is of the view, the interest of justice demands that this Court must ensure that the minor child is at least able to apply for admission in Universities in USA by referring to passport details in her application form and also in the form for writing TOEFL examination. Accordingly, it is directed that the passport authorities shall issue a passport in the name of minor girl depicting her present residential address at New Delhi, with the names of her adoptive parents namely Ravi Ganjoo and Illa Ganjoo and furnish to the minor girl the number of the passport, place of Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV W.P.(C) 8834/2021 Page 11 Signing Date:23.02.2022 17:26:36 issuance of the same and keep the said passport in their own custody and shall not issue the same to the minor girl or to her adoptive parents namely Ravi Ganjoo and Illa Ganjoo. This direction is only to enable the minor girl to fill the details of the passport in her application forms to the US Universities as well as in the TOEFL form and not for any other purpose. The issuance of passport to the minor girl shall be subject to NOC (if any) to be issued by CARA in accordance with law.
12. The above directions have been given in the peculiar facts of this case and the same shall not be treated as precedent. With the above, the application is disposed of.
13. List the writ petition on August 17, 2022.
V. KAMESWAR RAO, J
FEBRUARY 23, 2022/jg
Signature Not Verified
Digitally Signed By:ASHEESH
KUMAR YADAV W.P.(C) 8834/2021 Page 12
Signing Date:23.02.2022
17:26:36