The court was hearing a case where Christian couple had adopted a child in 2014 under the Hindu law.
The adoptive parents had moved the court seeking directions to the Central Adoption Resource Authority (CARA) to issue a ‘No Objection Certificate’ (NOC) to enable them to take their ‘adopted child’ to the U.S.
The CARA had submitted that the couple had not validly adopted the minor, therefore, it could not issue the NOC.
The argument was that Christian and Muslim couples could not adopt a Hindu child under the Hindu Adoptions and Maintenance Act (HAMA).
What is the Legal Framework Governing Adoption Laws in India?
In India, adoption falls under the ambit of personal laws, and due to the incidence of diverse religions practised in our country, mainly two different laws operate.
Muslims, Christians, Parsis and Jews are governed by the Guardians and Wards Act, 1890, as formal adoption is not allowed in these religions.
Hindus, Sikhs, Buddhists, and Jains, on the other hand, follow the Hindu Adoption and Maintenance Act (HAMA), 1956.
Juvenile Justice (Care and Protection of Children) Act also deals with adoption.
What was the judgement?
The High Court said the personal law of the Hindus recognised adoption. “Therefore, the adoption ceremony known as ‘Datta Homam’, where the biological parents voluntarily surrender and hand over the child to the recipient, following religious ceremonies, was considered sufficient to result in a valid and legal adoption,”
However, this right to adopt had been brought under the HAMA which laid down certain limitations on adoption.
HAMA was applicable only to Hindus, and specifically provided that it applied to “any other person who is not a Muslim, Christian, Parsi or Jew by religion”, the court clarified.
However, Court said that a person interested in adopting a child was not limited by his or her religion, ifadoption was sought under the Juvenile Justice (Care and Protection of Children) Act.
Since the child was being well taken care of by the foster parents and their family, the court said there is no cause to remove the child from their charge and custody.
To avoid further delay in the adoption process, the High Court directed the CARA to issue the requisite NOC to the couple.
What is the procedure for adoption?
All prospective parents irrespective of nationality have to register with the Central Adoption Resource Authority (CARA).
CARA is a statutory body of the Ministry of Women and Child Development which functions as a nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoption.
Then, the appropriate local authorities are called for a home study.
Subsequently, registration with the ‘Child Adoption Resource Information and Guidance System’ is done.
After registration, children are assigned by turn, and foreign couples are treated at par with Indian ones.
Countries that are signatories to the ‘Hague Adoption Convention’ have standardised and streamlined such processes.
Do you know?
Currently, adoption procedure involves a seal of approval by the Civil Court, which passes the final adoption order.
The JJ Amendment Bill 2021 provides that instead of the court, the District Magistrate (including Additional District Magistrate) will issue such adoption orders, both for intra-country and inter-country adoptions.
