Couple with one foreign parent can adopt as any Indian citizen

Rules say love and affection don't matter.

But the courts of law have time and again risen to defend the interest of citizens and set aside rules and replaced with reasoned landmark judgments.

Rule 40 of the Agency: Central Adoption Resource Authority (CARA), 2011 mandates no-objection certificate (NOC) from the agency for 'inter-country' adoptions.

The Central Adoption Resource Agency (CARA) guidelines stipulate that in case of foreign nationals, who are citizens of a country that has ratified the Hague Convention and have been living in India for one year or more, the prospective adoptive parent (PAP)s shall approach CARA along with a certificate of no-objection for the proposed adoption from the embassy or mission of the country of their nationality.

Other Objections raised by the agency: such adoptions are not allowed as over 8,000 Indian couples were in the waiting list.

Rules say love and affection don't matter.

But if a person can take care of the child, then there is no need to go into technicalities. The Court accorded the 6 year old child's welfare as the “topmost priority”. The most important thing is the welfare of the child.

The court observed: "Do rules say love and affection are immaterial and should rule books be an excuse in matters of child's welfare."

In a landmark ruling, a Bombay High Court Bench comprising Justice V.M. Kanade and Justice B.P. Colabawalla, held that:

"in cases where a married couple, of which one is an Indian and the other is a foreign national desires to adopt a child, the adoption will be treated as an in-country adoption and not a foreign adoption."

The bench posted the matter to consider issuing guidelines to be followed by the authorities while dealing with such cases.

Hence: Couples where one of the parents is an Indian national and the other of foreign origin and are desirous of adopting a child in India would be termed as 'in-country' and not 'inter-country'

Thus the formalities to be followed by them shall be reduced.

In a matter involving:  American woman married to an Indian national, Central Adoption Resource Agency (CARA) had stalled the adoption proceedings.

CARA had asked the 50 year old woman to obtain a no-objection certificate from the American Embassy.

The woman had approached the High Court. It was contended that: people dither and eventually back out of adoption as a result of complex CARA rules and procedures.

It was brought to the Court's notice that CARA does not have any provision for a case like hers: One Indian national and another with a different nationality.

It was however ruled by the Court that rule 40 of the Central Adoption Resource Authority (CARA) which mandates ‘No Objection Certificate' from the agency for ‘inter-country' adoptions will not be applicable to this case as it was ‘in-country'.

It shall be pertinent to go thru the whole judgment and impact on ruls framed thereafter by the Ministry and Agency.

DATE : JULY 16, 2015

1. Shri Nalawade, Special Counsel appointed for CARA -Union of India has invited our attention to the additional affidavit filed on behalf of Respondent No.1. It is submitted that one of the Petitioners is a foreign national and in view of Rule 40 of theC.A.R.A. Guidelines of 2011, she will have to apply to the US Embassy and obtain “No Objection Certificate” and, therefore, the procedure laid down under Rule 40 will have to be followed.

It is submitted that in respect of inter-country adoption under Rule 8(6) of the Guidelines Governing the Adoption of Children, 2011, the order of priority has to be followed. It is submitted that Petitioner No.2 being a foreign national, the said priority will have to be followed and only, thereafter, the child can be given in adoption to the Petitioners.

2. In our view, it is not possible to accept the interpretation made by the learned Special Counsel appointed for CARA in respect of Rule 40, which reads as under:

40 Adoption by foreign nationals living in India

(1) In case of foreign nationals who are citizens of a country that has ratified the Hague Convention and they have been living in India for one year or more, the PAP(s) shall approach CARA along with a certificate of No-objection to the proposed adoption form the embassy or mission of the country of their nationality.

(2) On receipt of the No Objection Certificate, CARA shall refer the case to a RIPA for carrying out the Home Study and preparation of PAP(s) dossier.

(3) The procedures stipulated under these Guidelines for inter-country adoption shall be followed by the RIPA.

(4) In cases referred to in sub-paragraph 91), the Embassy or Missions in India of the country of the nationality of the PAPs shall give an undertaking for post adoption follow-up as stipulated in Chapter IV of these Guidelines.

(5) In case, the PAPs continue to reside in India during the stipulated post-adoption follow-up period, the concerned RIPA would undertake such follow-ups and report to the concerned embassy or mission and CARA.

(6) The concerned embassy or mission shall also ensure that the adopted child acquires citizenship of the country of his or her parents immediately after adoption

3. The said rule is made applicable to the adoption by foreign national living in India. In the present case, Petitioner No.1 is a Indian Citizen, Petitioner No.2 is his wife and has obtained PIO Status. It, therefore, cannot be said that the Petitioners are foreign nationals, living in India.

4. In our view, prima facie, the said Rule will not apply to the facts of the present case. Consequently, Rule 8(6) of the Guidelines Governing the Adoption of Children, 2011 also will not apply since the order of priority has to be followed in the case of inter-country adoption.

5. Hence, the Petitioners to make application for adoption before the District Court not on the basis of inter-country adoption but adoption by the Indian Citizen  and to follow the procedures prescribed under the Juvenile Justice Act.

6. At this stage, the learned Special Counsel for CARA seeks stay to this order.

The request made by the Special Counsel is declined.  Place the matter for final disposal on 30th July, 2015. Parties to act on an authenticated copy of the order.

[B.P COLABAWALLA, J.] [ V. M. KANADE, J.]

DATE : JULY 30, 2015

P.C. :

1. Not on Board. Upon mentioning, the matter is taken on the Board.
2. Leave to file an additional compilation is granted. Stand over to 13.8.2015 on the Supplementary Board.

[B.P COLABAWALLA, J.]
[ V. M. KANADE, J.]

DATE : 24th August, 2015

1. We have perused the Guidelines governing the Adoption of Children published under the Notification dated 17.7.2015 issued by the Ministry of Women and Children Development, Government of India. The said Guidelines have come into force with effect from 1.8.2015.

Our attention is invited to clause-22 of the Guidelines which provides that

"if one of the prospective adoptive parents is foreigner and other is an Indian, such case shall be treated at par with Indians living in India or living abroad as the case may be".

2. In view of the fact that new Guidelines have come into force, the petitioners will not require no objection and therefore, this petition will not survive.

3. The learned Advocate for the petitioners has some grievance regarding access to the On-line System under the new guidelines.

It will be open for the petitioners to make a representation to the appropriate authority on this aspect. If such representation is made, the concerned authority shall consider the same and take action within one month from the date on which the representation is made.

Subject to above directions, the petition is disposed of.

4. In view of disposal of the writ petition, Civil Application No.1729/2015 does not survive and disposed of accordingly.

(K.R. SHRIRAM, J.)
(A.S.OKA, J)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 3588 OF 2015
Mr.Premos Kanyanpuram Sherkhan and Anr ..... Petitioners
Vs.
The Central Adoption Resource Agency and Ors. .... Respondents
Guidelines, confirm to the laid Rule:
MINISTRY OF WOMEN AND CHILD DEVELOPMENT NOTIFICATION
New Delhi, the 17th July, 2015

22. If one of the prospective adoptive parents is foreigner and other is an Indian, such case shall be treated at par with Indians living in India or living aboard, as the case may be.

Latest Guidelines, also confirm to the laid Rule:

MINISTRY OF WOMEN AND CHILD DEVELOPMENT NOTIFICATION
New Delhi, the 4th January, 2017

21. Adoption procedure in case of Overseas Citizen of India or foreign national of Hague Adoption Convention ratified countries living in India.-

(1) If one of the prospective adoptive parents is foreigner and other is an Indian, such case shall be treated at par with Indians living in India.
(2) If both the prospective adoptive parents are foreigner, such case shall be treated in accordance with the provisions of regulation 20.

 

Kumar Doab 
on 23 February 2017
Published in Family Law
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