Document Fragment View

Matching Fragments

27. The Amicus has concluded in his report as under:

a. Neither the JJ Act, 2015, the Adoption Regulations, 2017 or HAMA prescribe any procedure for inter-country direct adoptions between non- relatives;
b. For adoptions under HAMA, the adoption could be amongst relatives, however HAMA does not have any provision in respect of inter-country adoptions;
c. There is a conflict between Sections 56(3) and 56(4) of the JJ Act, 2015 and ambiguity as to whether HAMA adoptions would be covered under Section 56(4) or not.
"17. In the present case, there is no dispute that the adoption has been taken by the persons who are Sikhs and, therefore, have a right to adopt the petitioner under the HAMA, 1956. Even though, they are British citizens, their religion remains the same and, therefore, their right to adopt under the HAMA, 1956 cannot be taken away. In these circumstances, their adoption would be considered as valid. Their adoption is also protected by Section 56(3) of the JJ Act, 2015 itself, which clearly stipulates that the provisions of the Act shall not be applied for the adoption of the children under the HAMA, 1956. Once having applied under HAMA & adoption having been registered under HAMA, 1956, the said adoption cannot be challenged on the ground that the same should have been made under J.J. Act, 2015 as also in view of Section 15 of HAMA, 1956 which clearly states that a valid adoption of a minor child is irreversible and cannot be revoked. Thus, it was neither mandatory nor necessary to apply for adoption of the child in question under the J.J. Act, 2015."
iii. If the JJ Act, 2015 has no applicability for adoptions under HAMA, should the provisions of the JJ Act, 2015 be mandatorily extended to all inter-country adoptions, including those under HAMA?

61. A conjoint reading of Sections 56 and 60 clearly shows that there is a lacuna or a vacuum in the law. In view of the clear wording of Section 56(3), adoptions under HAMA would not be governed by the JJ Act, 2015. Thus, Section 56(4) would not be applicable for adoptions under HAMA. The term "Nothing in this Act" would take within its ambit Section 56(4) as also Section 60 of the JJ Act, 2015 and exclude their applicability qua adoptions under HAMA. Thus, insofar as adoptions under HAMA are concerned, whether domestic or inter-country, direct or indirect, the JJ Act, 2015 and the Adoption Regulations, 2017 would not be applicable. However, this would not mean that Hindus governed by HAMA cannot adopt under the JJ Act, 2015. Section 56(2) is an enabling provision and thus, even persons governed by HAMA have the option of taking a child in adoption in accordance with the JJ Act, 2015 however, the same is not mandatory or compulsory. There is also some ambiguity as to whether under the JJ Act, 2015, intercountry adoptions between non-relatives is permissible. However, for the present purposes, only adoptions under HAMA are being considered in these petitions.

Permanent Mechanism/solution for inter-country adoptions under HAMA:

83. The above discussion clearly highlights the need for a permanent solution to deal with inter-country adoptions under HAMA in light of the Hague Convention. As of now, there exists no provision under HAMA dealing with inter-country adoptions. While it could be argued that the procedure under HAMA regulates both domestic and inter-country adoptions, there is a need to have a relook at the statute post the ratification of the Hague Convention. CARA, which is an agency set up under the JJ Act, 2015, per se would not have jurisdiction in respect of adoptions under HAMA as the JJ Act, 2015 does not apply in respect of HAMA adoptions. However, currently, CARA is the only agency dealing with inter-country adoptions. Thus, apart from any amendments in the law which may be required, there is also a need Digitally Signed By:DINESH SINGH NAYAL Signing Date:01.09.2021 15:30:28 to create a specialized agency for inter-country adoptions under HAMA or to vest the said jurisdiction with CARA itself.