The Punjab and Haryana high court has asked ministry of external affairs (MEA) to apprise it whether for adoption under the Hindu Adoption and Maintenance Act (HAMA) 1956, no objection certificate (NOC) from the Central Adoption Resource Authority (CARA) is mandatory. The response was sought on the plea from a two year old girl, adopted by an NRI couple. She was one of the twins born to a Jalandhar couple and subsequently adopted by NRI sister of her natural mother.

IS CENTRAL AUTHORITY NOC IS MUST FOR ADOPTION

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FACTS:

The Punjab and Haryana high court has asked ministry of external affairs (MEA) to apprise it whether for adoption under the Hindu Adoption and Maintenance Act (HAMA)-1956, no objection certificate (NOC) from the Central Adoption Resource Authority (CARA) is mandatory.

The response was sought on the plea from a two- year- old girl, adopted by an NRI couple. She was one of the twins born to a Jalandhar couple and subsequently adopted by NRI sister of her natural mother. They had applied for passport, but it was refused on the ground that there was no NOC from CARA. It is a statutory body for adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions. CARA is established under Juvenile Justice Act (JJA), 2015. The girl was born in November 2017 to a Sikh family in Jalandhar. She was adopted as per Sikh rites performed at a local Gurdwara as both the sides of parents were Sikhs to which a certificate too was issued. An adoption deed was executed between both the parents in November 2018 under the Hindu Adoption and Maintenance Act (as applicable to Sikhs). Thereafter, the family applied for girl’s passport which was rejected by authorities stating that NOC from CARA was mandatory.

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As per petitioner girl’s advocate SS Nara, Section 56 (3) of the JJ Act 2015 states that the provisions of the JJ Act would not be applicable to the adoption of children made under the provisions of HAMA, latter being a ‘special law’. JJ Act does not override the provisions of HAMA Act; it was argued adding that in view of this passport cannot be denied. On the other hand, Central government counsel had argued it is a mandatory procedure for the adoption to be ratified by CARA, even though JJ Act would not be applicable to an adoption under HAMA. There are notifications which categorically state that the Hague Convention itself mandates adoptions to be through CARA alone, the council had added. The bench of Justice Jaishree Thakur sought Centre’s response observing that a pertinent question has been raised whether an NOC is to be obtained and whether the provisions of the JJ Act would apply to adoptions under HAMA. “Let a detailed reply be filed by the respondents raising all objections therein and by placing on record all notifications as relied upon,” the bench said posting the matter for June 10.

LAW/SECTION APPLICABLE:

THE HINDU ADOPTION AND MAINTENANCE ACT:

No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void. (2) An adoption which is void shall neither create any rights in the adoptive family in favor of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth. 6. Requisites of a valid adoption- No adoption shall be valid unless- (i) the person adopting has the capacity, and also the right, to take in adoption; (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter. 7. Capacity of a male Hindu to take in adoption- Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Explanation-If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso. 8. Capacity of a female Hindu to take in adoption- Any female Hindu- (a) who is of sound mind, (b) who is not a minor, and (c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption. 9. Persons capable of giving in adoption- (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption. (2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

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MY OPINION/VIEWS:

The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself. Before granting permission to a guardian under sub-section the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.

CONCLUSION:

Capacity of a male Hindu to take in adoption- Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Explanation-If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding provison.

For case specific advice, please contact Punjab Haryana High Court Best/Expert Lawyers Advocates in Chandigarh Panchkula Mohali.

This post is written Vishishta Mishra

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