When Adoption Law Stops at the Border: HAMA, CARA and India’s Expatriate Adoption Lacuna

This article examines the regulatory challenges surrounding expatriate adoptions under the Hindu Adoptions and Maintenance Act, 1956 (HAMA), analysing the interplay between CARA, the Adoption Regulations, 2022, and the Hague Convention, and proposing a workable framework for cross-border relocation of adopted children.

Indian adoption law permits a curious result: an adoption may be complete, valid and irrevocable under the Hindu Adoptions and Maintenance Act, 1956 (HAMA), yet encounter no clearly workable regulatory route once the family seeks cross-border relocation.

The difficulty arises most sharply in what countries such as Australia describe as an “expatriate adoption”: an adoption completed overseas by one of their citizens or permanent residents, without the involvement of their inter-country adoption authorities, followed by an attempt to relocate the adopted child to the receiving country. India’s Adoption Regulations, 2022 contain no corresponding category.¹

The omission is no longer merely theoretical. The Bombay, Gujarat and Delhi High Courts have now encountered variations of the same problem. The resulting decisions reveal a structural gap between four matters which ought to remain analytically distinct: the validity of the adoption under Indian personal law; India’s regulatory verification of that adoption; the applicability of the Hague Convention on Intercountry Adoption; and the receiving State’s separate rules governing recognition and immigration.

The statutory fault line

Under Section 12 HAMA, a validly adopted child becomes the child of the adoptive parent for all purposes from the date of adoption. Section 15 protects the finality of a valid adoption, while Section 16 creates a presumption in favour of a registered adoption document. HAMA therefore creates civil status; the parent-child relationship does not ordinarily remain provisional pending subsequent approval by the Central Adoption Resource Authority (CARA).²

The Supreme Court recognised the distinction in Temple of Healing v. Union of India. The court recorded the categorical position of the Union and CARA that HAMA adoptions operate independently of the Adoption Regulations framed under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). Importantly, CARA also informed the court that its involvement assumes relevance where documentation is required to facilitate the adopted child’s travel abroad.³

Section 56 JJ Act broadly reflects the same distinction. Section 56(3) preserves adoptions made under HAMA, while Section 56(4) requires inter-country adoptions to be undertaken in accordance with the JJ Act and the Regulations. The two propositions need not conflict. HAMA can determine substantive adoptive status while the State separately insists upon safeguards before the child is relocated internationally.⁴

The difficulty lies in how the Adoption Regulations operationalise that distinction.

Regulation 68 lays down the “standard common procedure” for inter-country HAMA adoptions initiated after 17 September 2021. Where the prospective adoptive parents reside abroad, the scheme envisages their approaching the authorised foreign adoption agency, Central Authority or relevant government department in the country of habitual residence. That foreign authority participates in and sponsors the process, followed by the permissions contemplated under Article 5 or Article 17 of the 1993 Hague Convention.⁵

The premise is legitimate. International relocation of an adopted child requires safeguards against trafficking, coercion, improper financial consideration and circumvention of adoption controls. A registered HAMA deed cannot, by itself, become a passport for international relocation.

But Regulation 68 assumes that the receiving State will itself regard the case as falling within its conventional inter-country adoption machinery.

An expatriate adoption exposes the weakness in that assumption.

When the receiving State cannot supply what Regulation 68 requires

Australia is a useful illustration. Its official framework distinguishes its formal inter-country adoption programme from expatriate and private overseas adoptions. Its immigration framework separately provides an Adoption Visa (Subclass 102)⁶ for qualifying children adopted overseas. The absence of a conventional inter-country adoption procedure therefore does not necessarily mean the absence of an immigration route.⁷

The consequences of failing to distinguish the two are visible in Akshay Pitamber Sarvakar v. Central Adoption Resource Authority⁸. Twin girls lost their biological mother shortly after birth and were adopted under HAMA by their maternal uncle and his wife, who were based in Australia. Their relocation became stalled because the Australian authority would not process the concluded HAMA adoption through the conventional inter-country route, while the Indian process expected participation from the receiving country. The Gujarat High Court ultimately directed the authorities to process the adoption and provide the necessary documentation.

The Bombay High Court confronted the issue still more directly in Mangesh Bhaskarrao Manwatkar v. Union of India⁹. The Australian authorities expressly treated the transaction as an expatriate adoption outside their regulated inter-country adoption programme. Consequently, the Hague permissions ordinarily contemplated by Regulation 68 were unavailable.

The resulting paradox was straightforward: the Indian regulatory route contemplated participation by a foreign authority which regarded that very procedure as legally inapplicable to the adoption before it.

Lex non cogit ad impossibilia — the law does not compel the impossible — becomes more than an abstract maxim in such circumstances. A regulatory safeguard may legitimately demand rigorous scrutiny; it cannot sensibly demand performance of an act which the legal system of another sovereign does not provide.

Regulation 69 and the judicial workaround

The Regulations themselves contain the beginnings of an answer.

Regulation 68 is framed prospectively around sponsorship and inter-country processing. Regulation 69, by contrast, expressly addresses an adoption already “concluded under” HAMA and provides for verification through the District Child Protection Unit and an inquiry by the District Magistrate. What the Regulations do not clearly explain is how those provisions interact where a post-17 September 2021 HAMA adoption has already been concluded but cannot travel through Regulation 68 because the receiving State will not provide the contemplated sponsorship.¹⁰

The High Courts have filled that gap.

In the Mangesh case¹¹, although Regulation 68 ordinarily applied by reference to the date of the adoption, the Bombay High Court permitted the matter to proceed through Regulation 69 verification followed by the requisite CARA action.

The Delhi High Court adopted essentially the same solution in Karnika Khandelwal v. Union of India¹². CARA had refused the no-objection certificate (NOC) because the sponsoring letter contemplated by Regulation 68 was unavailable. Australia, however, regarded the concluded HAMA adoption as expatriate. The court relied upon Mangesh and Akshay Pitamber Sarvakar¹³ and directed District Magistrate verification under Regulation 69 followed by issuance of the requisite NOC.

The significance of these decisions is easily misunderstood. The courts did not dispense with regulatory scrutiny. Nor did they treat a HAMA deed as sufficient by itself to justify international relocation. They instead substituted an attainable form of substantive verification for a procedural condition which the receiving State could not perform.

That solution is principled. But it remains a judicial workaround rather than a regulatory rule.

The difficulty does not end with Regulation 69

Regulation 70 introduces a related difficulty. It connects CARA’s NOC/certificate stage with District Magistrate verification and the requisite Article 5 or Article 17 permission under the Hague Convention. Yet it does not expressly say what document CARA may issue where the receiving State itself confirms that the conventional Hague process does not apply.¹⁴

The Supreme Court’s orders in Prema Gopal v. Central Adoption Resource Authority¹⁵, although arising in the distinct context of inter-country relative adoption, are instructive. After the competent Indian authority had issued the requisite certificate, the Supreme Court directed CARA to comply with Section 60(2) JJ Act and issue an NOC. More significantly, the court expressly noted that Section 60(2) requires intimation to the immigration authorities of India and the receiving country; it does not envisage an NOC being obtained from the receiving country itself.

Prema Gopal should not simply be transplanted into every expatriate HAMA adoption. Its importance is narrower: delegated regulatory requirements cannot silently transform a statutory NOC mechanism into a requirement for a foreign document which the parent legislation itself does not contemplate.

A systemic problem, not an exceptional one

The issue also predates the present line of High Court decisions.

In the Temple of Healing case, CARA itself informed the Supreme Court that receiving countries do not invariably regard HAMA adoptions as conforming to Hague procedure. CARA further stated that it had already issued adoption support letters in 66 cases since May 2022.¹⁶

That admission is important. It demonstrates that the distinction between a Hague conformity document and a support document required for immigration is not an invention of recent litigation. CARA has itself had to confront the distinction administratively.

Its Steering Committee has likewise considered pending pre-17 September 2021 HAMA cases in which conventional Hague documentation was unavailable and the use of support letters based upon Indian verification became necessary.¹⁷

The question, therefore, is not whether an alternative documentary solution is administratively conceivable. Indian authorities have already used one. The question is why the Regulations do not define when that alternative mechanism applies.

Comparative practice: Expatriate adoption is not an unknown category

Comparative practice reinforces the point.

The United States Department of State expressly publishes official guidance under the heading “Expatriate (Expat) Adoptions”. Its framework places substantial emphasis upon habitual residence rather than citizenship alone. Where the competent authority of the country in which the US citizen resides regards that person as habitually resident there and permits an adoption to proceed under domestic law, the domestic adoption route may be followed; subsequent questions of US immigration and citizenship are dealt with separately.¹⁸

The conceptual advantage is considerable. Nationality, habitual residence, adoption validity and immigration are treated as related but distinct questions instead of being collapsed into a single inter-country classification.

New Zealand’s current reform exercise is also instructive. Its Overseas Adoptions Legislation Bill, introduced in 2026, contemplates immigration pathways for children adopted overseas by New Zealand expatriates alongside the conventional Hague framework. The significance is not that India should transplant the New Zealand model wholesale. It is that another Hague jurisdiction has recognised the need to regulate, rather than ignore, overseas adoptions which do not fit neatly within the standard inter-country route.¹⁹

A regulatory route forward

India requires no wholesale reconstruction of its adoption framework.

The Adoption Regulations could expressly recognise expatriate adoption as a narrow category where:

1. the adoption has already been validly concluded under HAMA;

2. the competent authority of the receiving State formally confirms that the adoption falls outside its conventional Hague/inter-country programme;

3. the adoptive parent’s residence is genuine rather than contrived to circumvent the Hague procedure; and

4. a lawful route exists for recognition or immigration of the adopted child in the receiving State.

Such recognition should not reduce scrutiny. The District Magistrate should remain responsible for substantive verification of HAMA compliance, consent, absence of prohibited consideration, the bona fides of the adoption and the welfare of the child. CARA should independently verify the receiving State’s classification and applicable immigration requirements.

Where foreign sponsorship is unavailable because the competent foreign authority itself confirms that the case falls outside its inter-country machinery, CARA should have express authority to issue an appropriately designated expatriate-adoption NOC or support document after Indian verification.

The distinction is important. The proposed route would not allow an adoptive parent simply to label a transaction “expatriate” and escape Hague safeguards. The receiving State’s own classification, habitual residence and the genuineness of the circumstances would operate as threshold safeguards against deliberate circumvention.

The result would therefore be equivalent scrutiny without impossible procedure.

Conclusion

The decisions in Akshay Pitamber Sarvakar²⁰, Mangesh²¹ and Karnika Khandelwal²² should not be viewed merely as three successful writ petitions. Together, they expose the same regulatory design problem from different directions.

CARA’s own administrative practice demonstrates that support documentation outside the conventional Hague certificate mechanism is already possible. Comparative experience demonstrates that expatriate adoption can be expressly recognised without weakening child-protection safeguards.

India is plainly entitled to insist upon rigorous scrutiny before an adopted child is relocated abroad. But scrutiny and procedural impossibility are not the same thing.

Where the receiving State itself confirms that the conventional inter-country route is legally unavailable, Indian law should prescribe an alternative route rather than require each family to discover one through Article 226.

The High Courts have already built the bridge between Regulations 68 and 69. The Regulations should now acknowledge that the bridge exists.