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Case Name : PKH Vs. Central
Adoption Resource Authority

Citation: W.P.(C) 5718/2015 & CM APPLs. 28508/2015, 19662/2016Court: Delhi High Court Judge: HON’BLE MR. JUSTICE MANMOHANPetitioner: PKHAdvocates Representing Petitioner : Mr Karan Singh Thukral with Mr Rohit Yadav Defendant : Central Adoption Resource AuthorityAdvocates Representing Defendant : Mr Amit Sibal, Senior advocate and Amiscus Curiae with Mr Rohan Alva, Mr Tahir Siddiqui, Mr Namit Suri and Mr Shariq Reyaz.Date of Decision : 18th July 2016 Facts –       The petitioner and her husband were Canadian citizens who have been residing in Canada for the last twenty years. The petitioner was a successful oadvocate by proffesion and owned movable and immovable property.-       PKH had a male child and decided to adopt a girl child to balance her family . She wanted her girl child from India as it was her traditional and racial base .-       The adopted child was born on 24th September, 1999. The biological mother of the child was a widow whose husband had unfortunately passed away on 05th December, 1999.

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–      
on 18th April, 2007, the biological mother gave her
daughter, M, in adoption to the petitioner after convincing herself with regard
to the character, financial stability and family of the petitioner. All the
essentials of a valid adoption were completed and the ceremony of giving and
receiving the child in adoption was performed in the presence of the relatives
and friends of both the families.

–      
After enrollment of the Adoption Deed and fulfillment
of the considerable number of customs with respect to adoption, the petitioner
planned to take the adopted child to her resident country, Canada, and
connected for the movement of the child to the High Commission of Canada.

–      
The High Commission of Canada directed the petitioner
to obtain an NOC from CARA’s office for processing of the application.

 

–      
CARA however
did not grant the NOC even after repeated requests and official notifications

 

–      
The petitioner also obtained a declaratory decree from
the Court of Additional Civil Judge, Zira, Punjab, in her favour declaring the
Adoption Deed executed by the petitioner and the natural mother of the child as
valid and legal.

 

–      
CARA however
filed a counter affidavit stating that they are the Central statutory authority
and that all adoptions have to be
undertaken through it and that adoption not undertaken through it, is
punishable under Section 80 If the child is taken out of the country without a
valid court order.CARA also stated that since certain documents were not
provided the NOC could not be provided

–      
PKH filed a
writ petition in the Delhi high court

 

 

ISSUES 1.     Whether a statutory body like CARA has the power provided by the state  to make arbitrary rules in requirements for adoption.

2.    
Whether the term ‘surrendered child’ will include
those children who are directly taken in adoption from their biological parents
without the intercession of any specialized agency or child welfare committee

3.    
Whether the term ‘surrendered child’ as stated in
Section 41(3) of the Juvenile Justice act 
will include those children who are directly taken in adoption from
their biological parents without the intercession of any specialized agency or
child welfare committee

4.     Whether such a body has legal provision under Section 41(3) and 41 (4) of the Juvenile Justice act and what extent it can apply to 5.     If the state can using its power to safeguard interests and rights under article 21 of the constitution to carry out investigations in special cases.6.     Whether the NOC can be issued after confirmed adoption by a magistrate.   DECISION AND RATIONALE

CARA was directed by the court to give a
NOC to the petitioner for taking her embraced child to be specific, M.H., to
Canada inside a time of two weeks. Service of External Affairs/Regional
Passport Officer was additionally directed to issue her a passport inside two
weeks from there on.

 

While giving the judgement, a Bench of
Justice Manmohan stated, “This Court only hopes that the petitioner and
the minor at the end of the adoption process feel that adoption was a bumpy
ride – very bumpy; but, it was worth the fight.”

 

The court held that

–  between country direct adoption, where common
guardians themselves give child in adoption to another family, are not required
to be embraced through CARA under the Juvenile Justice Act, 2015, as it
bargains exclusively with orphans, and abandoned or surrendered child.

 

– As the adoption deed in the present case has been
executed, before the Act, 2015 came into force and the adoption deed has been
held to be legal, valid and genuine by the Additional Civil Judge,  in a civil suit filed by the adoptive parents
against the natural mother, the adoption in the present case is governed by the
Act, 2000 and not by Act, 2015.

 

– The Act of 2000 read
with the Rules, 2007 and the Guidelines, 2015 expressly lays down a procedure
for adoption only in relation to a child who is an orphan or abandoned or
surrendered, and does not cover inter-country direct adoption.

 

– A child is surrendered when the guardians wish to give up him/her to the Child Welfare Committee and a formal demonstration happens by which the child is surrendered by the regular guardians to the CWC. Once the surrender is finished, the guardians have no part later on of the child and the CWC alone chooses the best course for the child?s future before the child is received. 

– A child given in direct adoption cannot be termed as
a “surrendered child”, since there is no relinquishment of the child,
by the parents to the CWC.

 – In perspective of CARA, Canada’s endorsement for selection and its good home investigation report and in addition the declaration by the Additional Civil Judge (Senior Division), Zira, this Court is of the assessment that the prerequisites of Articles 5 and 17 of the Hague Convention are fulfilled in the present case. – Thus in cases of inter-country direct adoption like the present case, NOC from respondent- CARA is not required under the Act, 2000 and the Guidelines, 2011.The Regional Passport Officer/MEA can’t demand issuance of a NOC by respondent-CARA before handling the solicitor’s application for issuing a Passport to the received child. This Court recommended that the respondent-CARA ought to think about the choice of naming a board of Psychologists, Lawyers and additionally NGOs in every one of the States so the Child Study Report and Home Study Reports on account of household adoptions, if material, in India are arranged deductively in a time bound way. The nearby police and also Anti Trafficking Unit of the Ministry of Home Affairs ought to be requested to give their reaction to the Adoption application inside a strict time span. On the off chance that reaction isn’t gotten from statutory/government specialist inside the time period recommended, it ought to be assumed that said expert has no complaint to the adoption. The respondent-CARA ought to guarantee that the applications for endorsement/NOC are prepared in a child agreeable way and that as well, in a strict time span. All things considered, consolidation of safeguards should not lead to harassment and deferral.           Case Analysis and Comment The popular belief is that adopting one child will not change the world but for that child the world will change. Looking at the pace at which our statutory bodies process an application for adoption, appears as though they accept just in the initial segment of the statement, specifically, that adopting a child won’t change the world. 

These were the very first statements made by
Justice Mohan in the judgement relating to this case.

 

CARA
is designated as the central authority to deal with international adoptions in
accordance with the provisions of the Hague Convention on Inter-country
Adoption, 1993, ratified by government of India in 2003. It primarily deals
with adoption of orphans, abandoned and surrendered children through its
associated and recognised adoption agencies.

 The court also at that time took into consideration the dismal rate of adoption of the year of only 666 children in a country of such a large population being adopted by foreign parents .

A
writ petition was filed seeking a direction to the CARA to grant a ‘No
Objection Certificate’ (NOC) to the petitioner for taking her adopted child
namely, M.H. to Canada.

In
this case CARA did not grant a NOC certificate to PKH who was a canadian
citizen who had adopted a child in India. PKH had adopted MH in a legal manner
and had even got an order confirming the same from a magistrate in Punjab.

PKH
argued that the child MH was adopted in a directed manner as in that she wasn’t
orphaned , abandoned or surrendered as MH’s biological mother was still alive
and had given permission to PKH to adopt.

The
case hence arose whether CARA had jurisdiction over such a child. CARA refused
to give an NOC certificate using the defense of a statutory body and that PKH
didn’t provide necessary documents.

The
judge vehemently disagreed with such an argument and demanded an NOC to be
granted immediately and the Ministry of External Affairs to grant a passport in
2 weeks.CARA
was asked to streamline and simplify the procedure for adoption under the Act,
2015 .

The case is
important in the sense that the court plays an active role in advising CARA to
come up with significant changes in the procedure and implementations of
adoption. It asked CARA to change certain guidelines . It recommended the
Government to look into the matter and come up with comprahensive solutions to
safeguard interests of children under article 21 of the constituition .

The process
of adoption is a complicated procedure in India and certain statutory bodies
are set up by the government who keep a check on adoptions in the states , if
these bodies act arbitrarily and in wrong interests adopton will become
difficult alltogether .

It was even
recommended that a body of psychologists, lawyers and NGO’s be set up to look
into such cases so it doesn’t cause a hindrance to parents and children .

 

The
judgement has had a positive effect on the procedure and ease of adoption. The
government and CARA set up new guidelines and rules to remove any such
difficulties in the process. Following the 2015 guidelines and as a
part of the egovernance drive, the CARA put in place the online Child Adoption
Resource Information and Guidance System where it incorporated two separate
databases-of all the children who are legally free for adoption and the
database of adoptive parents who have registered themselves online.

 

The
number of children being adopted has been increasing at a steady rate, CARA
aims to increase the figure to 10,000 kids being adopted every year

 

Every Child matters and every child deserves a decent
upbringing and deserves to be loved and cared for. Belonging to a family is a natural and vital component
of life and every child deserves to be a member of a loving and nurturing
family.

 

It is great to see that the Supreme Court agrees with the
same humane view and has taken a proactive step in the case of PKH v CARA and
has looked to initiate a positive change.

 

BIBLIOGRAPHY 

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