Karnataka High Court: While considering the instant petition revolving around Cross-Border Adoption, filed by a Kenya based Indian couple seeking to recognise a legalised child adoption under the Indian law, the Bench of M. Nagaprasanna, J.*, took note that Cross-Border Adoption is a situation that was not envisaged either by the Juvenile Justice Act nor the Adoption Regulations. Therefore, the Court directed the respondents not to restrict its magnanimity to issuance of a support letter; and that it should stretch for issuance of an approval or a no objection under the Regulations, for the reason that, India is a signatory to the Hague Convention. Even though the adoption has not happened under the Hindu Adoptions and Maintenance Act, and in a country which is not a signatory to Hague Convention, but adoption has happened nevertheless, and the rights of a child of Indian citizens, who have adopted, cannot be left marooned.
Background: The petitioners i.e., the husband and wife are citizens of India and are presently residing in Nairobi, Kenya. Between 2011 and 2018, the petitioners were residents of Uganda and later shifted to Kenya from 2019 and they hold Indian passport even today as they have not renounced their Indian citizenship.
During the time the petitioners were staying in Uganda, they became desirous of adopting a child and in such pursuit of adoption, after following all due procedures, took steps with the prevailing law in Uganda, and adopted a child on 12-08-2014. The petitioners then filed an application before the jurisdictional Family and Children Court at Makindye, Kampala, Uganda seeking conferment of a care order under the applicable laws of Uganda. The concerned Court granted the care of the child in favour of the petitioners. Thereafter, the High Court of Uganda in Family Division granted guardianship of the child in favour of the petitioners as on 20-07-2015. The child is in the care of the petitioners and undergoing schooling at Kampala. The petitioners then filed an application for formal adoption before the High Court of Uganda, under the applicable laws, wherein it was declared that the petitioners are adoptive parents of the child and were granted all consequential rights over the child.
Desiring the afore-stated adoption to become formal as per Indian procedure, the petitioners preferred an application/communication on 08-06-2023 before Central Adoption Resource Authority (‘CARA’) to grant legal sanctity in India for the said adoption in the light of both the petitioners presently being Indian citizens. However, 2 months passed, and they received no response to their communication. Therefore, the petitioners came before the Court on 10-08-2023, seeking a direction by issuance of a writ of mandamus.
Counsel for the petitioners submitted that Inter-country adoption is a recognized norm pursuant to Hague Convention of 1995. Uganda is not a signatory to Hague Convention. Therefore, CARA Regulations or the Juvenile Justice Act does not impede the process of adoption to be regularized in this country when the child is at the receiving country pursuant to Hague Convention. It was argued that India being a signatory to Hague Convention cannot deny regularization of adoption.
Per contra, the respondents submitted that if the petitioners follow the procedure appropriately then a no objection certificate for such adoption would also be issued by the competent authority. The respondents accepted that Ugandan Courts have legalized the adoption, and those orders are implementable in terms of the laws of India if the petitioners are Indian citizens. It was further submitted that in terms of law, if the petitioners would act in consonance thereto, appropriate relief would be granted to the petitioners.
Court’s Assessment: Perusing the petitioners’ grievance, the Court took note of Sections 58, 60 and 63 of Juvenile Justice (Care and Protection of Children) Act, 2015 which detail the procedure vis-à-vis adoption, inter-country relative adoption and effect of adoption respectively. The Court also took note of Regulations 23, 41 and 70 of Adoption Regulations 2022.
It was noted that since India is a signatory to Hague Convention while Uganda is not, therefore, the rights of the child to be treated as a citizen of India, on legalizing adoption, lies in limbo. The Adoption Regulations vest legalizing of adoption with the CARA. It was further noted that Regulation 41 mandates issuance of NOC in cases of adoption under the Hindu Adoptions and Maintenance Act. However, the instant case is not an adoption under the Hindu Adoptions and Maintenance Act. Regulation 70 requires a no objection and conformity certificate by the Authority in the event the adoption is in consonance with Hague Convention. While Regulation 23 directs that on receipt of Home Study Report, NOC would be given or approval for such adoption would be rendered by India as a receiving country only under Article 5 or Article 17 of the Hague Adoption Convention.
The Court pointed out that the situation in the instant case is that if it is not Hague Adoption Convention, the rights of the child or the parents over the child would be left in the state of uncertainty. The petitioners are not the ones who are asking for legalizing an illegal adoption. They are the ones asking recognition of a legalized adoption under the Regulations of India. They have in their arm complete legal process in the High Court of Uganda qua their right over the child.
The Court thus noted that it is necessary to iron out the creases even in the Adoption Regulations by harmonizing the provisions of the JJ Act and the Regulations to accept adoptions as presented in the instant case and direct issuance of a no objection or approval of such adoption. “Ironing out the creases by the constitutional Courts of the provisions of law as promulgated, without disturbing the content of the statute, is permitted exercise of judicial review, as the law makers at the time of making the law would not have envisaged a situation of the kind that is generated in the case at hand”. The Court thus found that on such ironing out the creases, the petitioners become entitled to the redressal of their grievance.
Taking note of the issuance of Support Letter as mandated Regulation 41(17) of the Adoption Regulation, the Court pointed out that this will place the petitioners or the child neither here nor there, as the support letter is for issuance of passport in case of in-country adoption. Therefore, the support letter would also not generate such right upon the petitioners or the child, as this is not inter-country adoption or in-country adoption; it is cross border adoption.
Taking note of the fact that the rights of the petitioners have been conclusively determined by the Ugandan Courts, and since they are still Indian citizens, therefore, they are entitled to the relief prayed for.
[Ravi Kumar C. v. Central Adoption Resource Authority, 2024 SCC OnLine Kar 33, decided on 26-03-2024]
*Order by Justice M. Nagaprasanna
Advocates who appeared in this case :
Sameer Sharma, for the petitioners;
H. Shanthi Bhushan, Deputy Solicitor General of India appearing for the respondents.
