Bombay High Court
Mangesh Bhaskarrao Manwatkar Through … vs Union Of India Through Ministry Of Women … on 30 March, 2026
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
TRUPTI
2026:BHC-AS:15778-DB
SADANAND
BAMNE J-WP-16232-2025.odt
Digitally signed by
TRUPTI SADANAND
BAMNE
Date: 2026.04.02
21:14:03 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 16232 OF 2025
1. Mangesh Bhaskarrao Manwatkar,
43 Y age Adult, Occupation : Service
At present residing at 57, Lancaster Dr,
Point Cook, Victoria, Australia - 3030
Indian Residential Address - Rainbow
Association, F2, B wing, room no 6,
Sector 10, Vashi, Navi Mumbai 400703.
Through his Power of Attorney Holder
Mrs. Pushpa Bhivasan Vanere
Aged 44 years, Occupation : Housewife
Indian Residential Address : Rainbow
Association, F2, B wing, room no 6, Sector
10, Vashi, Navi Mumbai 400703
2. Mrs. Pushpa Bhivsan Vanere, 44 Y age
Wife of Petitioner No.1,
Residing at 57, Lancaster Dr,
Point Cook, Victoria, Australia - 3030
Indian Residential Address - Rainbow
Association, F2, B wing, room no 6, Sector
10, Vashi, Navi Mumbai 400703
3. Moheeka Mangesh Manwatkar, 2 Y age
Minor, through her Natural Guardian,
Adopted child of Petitioners Nos.1 and 2.
Address - Rainbow Association, F2, B wing,
room no 6, Sector 10, Vashi,
Navi Mumbai 400703. ....Petitioners
Versus
1. Union of India
Summons to be served upon the
learned Government Pleader representing
the Union of India under Order XXVII,
Rule 4, of the Code of Civil
Procedure,1908.
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2. Central Adoption Regulatory Authority
(CARA), Ministry of Women and Child
Development, Having its Office at West
Block 8, Wing 2, 1st Floor, Rama Krishna
Puram, New Delhi, Delhi 110066,
Summons to be served upon the
learned Government Pleader representing
the Union of India under Order XXVII,
Rule 4, of the Code of Civil
Procedure,1908. ....Respondents
****
Mr.Anil V. Anturkar, Senior Advocate i/b. Mr. Yatin Mahesh Malvankar,
Advocate for the Petitioners.
Mr. Y. R. Mishra a/w Mr. D.A. Dube, Mr.Upendra Lokegaonkar and
Mr.Sachidanand T. Singh, Advocate for the Respondent/UOI.
****
CORAM : RAVINDRA V. GHUGE &
ABHAY J. MANTRI, JJ.
RESERVED ON : 12 MARCH, 2026
PRONOUNCED ON : 30 MARCH, 2026
JUDGMENT (PER : RAVINDRA V. GHUGE, J.)
“ADOPTING ONE CHILD WILL NOT CHANGE THE WORLD:
BUT FOR THAT CHILD, THE WORLD WILL CHANGE”
[Opening sentence from PKH v. Central Adoption Resource authority,
2016 SCC OnLine Del 3918]
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1. Rule. Rule made returnable forthwith and heard finally by
consent of the parties.
2. Petitioner Nos. 1 and 2 are a married couple. Both are about
44 years of age. Petitioner No. 2, the wife, has sworn the verification in
support of the Petition. Petitioner No. 3 is a minor girl child who was
adopted by the couple when she was 45 days old under the Hindu
Adoptions and Maintenance Act, 1956 (hereinafter referred to as
‘HAMA’).
3. For the sake of brevity, Petitioner No. 1, Petitioner No. 2, and
Petitioner No. 3 are hereinafter referred to as the adoptive father, the
adoptive mother, and the adopted daughter, respectively.
4. The couple got married on 01.03.2017 at Navi Mumbai Sports
Association, Vashi, Navi Mumbai. Both were Indians at the time of their
marriage. Their marriage certificate is dated 03.03.2017, registered under
the Maharashtra Regulation of Marriage Bureaus and Registration of
Marriages Act, 1998.
5. The adoptive father became an Australian citizen with effect
from 27.02.2023. The couple was childless. Both professed the Hindu
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J-WP-16232-2025.odtreligion and were governed by HAMA. Being childless, the adoptive
couple decided to adopt the 3rd child of a close relative, namely, Sudhir
Yashvant Shekokar and Yashoda Sudhir Shekokar. Both have a son,
Prathmesh, who was 16 years of age in April 2023, and a daughter,
Nirvika, who was 11 years of age at the said time. The said couple gave
birth to their 3rd child on 28.02.2023, who is Petitioner No. 3 before us. We
are informed that third pregnancy of this couple was ‘unplanned’.
6. On 21.04.2023, a Joint Adoption Deed was entered into by the
adoptive couple and the biological parents of the adopted daughter. The
Adoption Deed was registered with the Joint Sub-Registrar, Thane, District
Thane, on the same day. The adoption ceremony was conducted in
accordance with Hindu religious rites in the presence of close relatives,
families, and friends of the biological parents and the adoptive parents. The
Hindu priest has also signed the English as well as the Marathi adoption
ceremony documents before the Joint Sub-Registrar, Thane. The change of
name of the adopted daughter was also carried out. All these documents are
placed on record from page Nos. 41 to 58. The passport of the adopted
daughter, carries the name and surname of the adoptive father, as her
middle name and surname. The details about the adoptive mother, are also
found in the said passport.
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7. The adoptive mother subsequently became an Australian
citizen. Due to the adoption, the child is supposed to accompany the
parents to Australia. The adoptive father entered into correspondence with
the Australian Authorities at ‘Adoption Victoria’, in order to obtain an
Australian adoption Visa. The adoptive father was informed that for such a
Visa, the Indian Central Authority must send them a request directly via
email. However, much time was consumed in such correspondence, which
did not lead to any result for the Petitioners. The ‘Duty Worker, Adoption
Victoria, Adoption Services, Department of Justice and Community
Safety’, advised the adoptive father that because the said office could not
initiate contact with the Overseas Central Authority regarding Inter-
Country adoption, the Indian Central Authority would have to send a
request via email to [email protected]. These details were
made available to the adoptive father upon his request to share them with
India’s Central Adoption Regulatory Authority (CARA) for Adoption
Processing.
8. The learned Senior Advocate Mr. Anturkar submits that the
adoptive mother became desperate due to the passage of time. She was
residing in India only because the adopted daughter was living with her.
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Under wrong advice, she preferred Miscellaneous Petition (Adoption) No.
354 of 2024, before the Additional Sessions Judge-3, Thane, seeking a
declaration under Sections 7, 8, and 10 of HAMA. By an order dated
20.02.2025, the application presented on 29.11.2024, was disposed off with
the order as ‘the Petition is filed’. Again, on improper advice, the adoptive
parents approached the learned Single Judge of this Court in Civil Revision
Application No. 351 of 2025. Vide order dated 06.08.2025, the adoptive
parents were granted leave to withdraw with liberty to file a substantive
Suit for declaration of the Adoption Deed already executed.
9. After the Petitioners approached the CARA, the District Child
Protection Officer, Thane (DCPO) submitted a report that ‘ this is a relative
adoption case and as per interaction with family members it was observed
that everyone was supportive to each other and it is cumulative decision. I
have verified all necessary documents of parents and they have shown
genuine interest in this procedure. Family is well prepared for adoption
and also they are socially, economically and medically fit for further
support. We are recommending this family for relative adoption’.
10. The District Child Protection Officer (DCPO) of the District
Child Protection Unit, Thane (DCPU) sent a mail dated 28.03.2025 to the
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J-WP-16232-2025.odtadoptive mother requesting her to provide the habitual status of the
prospective adoptive parents and NOC from the Australian Embassy or
High Commission for further processing of the case.
11. The Petitioners received a communication dated 28.04.2025
via email from Inter-Country Adoption Australia. The contents of the email
can be summarized as under:
(a) In Australia, overseas adoptions are only facilitated if
the principles and standards of the Hague Convention on
Protection of Children and Cooperation in Respect of Inter-
Country Adoption (Hague Convention), are met. The Hague
Convention is an International treaty that guards against
illegal, irregular, premature or ill-prepared adoptions abroad
and aims to ensure Inter-Country adoptions occur in the best
interests of the child.
(b) The Hague Convention process does not apply to people
who adopt a child from the same Country in which they
habitually reside.
(c) If your wife undertakes an adoption while living in India
and then intends to return to Australia with the child, this type
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of adoption is called an expatriate adoption. Children adopted
overseas in circumstances outside of a Hague Convention
process, do not automatically have their adoptions recognized
in Australia.
(d) Expatriate adoptions fall outside Australia’s regulated Inter-
Country adoption process and are therefore not considered as
Inter-Country adoptions. The Australian Government cannot
assist with or facilitate an adoption arrangement that occurs
outside Australia’s approved Inter- Country adoption program.
This includes advising a foreign government that Australia
would not object to or oppose a particular adoption.
(e) Further, the Australian Government does not provide
any type of document that in any way supports or endorses
applications by Australian expatriates undertaking domestic or
private adoptions in overseas countries.
(f) Australian Embassies or officials are unable to witness
any documents including statutory declarations and affidavits
that are used outside Australia and /or for the purpose of a
domestic or private adoption in another Country.
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(g) There are specific Australian migration requirements
concerning Visas and Citizenship pathways for adopted
children. I encourage you to carefully review the Subclass 102
adoption Visa pathway information available on the Home
Affairs website. When you open this page, click on the
Eligibility tab, go to the heading ‘Be Adopted’ or in the process
of being adopted.
12. The Petitioner points out that she sent a mail to
[email protected] on 04.08.2025 addressed to Mr. G. Ravi, informing
him that as per the information gathered from the Australian Home Affairs
website, the adoption falls under Expatriate Adoption and hence the Hague
Convention rule is not applicable in the case. She informed that the
adopted child can live in Australia permanently by getting the Australian
102 Adoption Visa. The adopted child will be able to study and work in
Australia and also receive benefits of the Government’s Public Health Care
Scheme, Medicare. The visa can be issued while the adopted child is
outside Australia. If she gets the 102 visa, she can arrive in Australia as a
permanent resident.
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13. On 21.08.2025, Mr. G. Ravi Kumar of CARA informed the
adoptive parents that Section 68, Chapter VIII of the Adoption
Regulations, 2022, prescribes the procedure for Inter-Country adoption in
cases initiated after 17.09.2021. Since the adoptive father is an Australian
citizen with Overseas Citizen of India (OCI) status, the case falls under the
Inter-Country HAMA adoption category. According to CARA, Section 68
is applicable.
14. Both parties have referred to various provisions of law. For
ready reference, it would be appropriate to reproduce the said provisions,
as under:
A] The Juvenile Justice (Care and Protection of
Children) Act, 2015‘(2)(2) “adoption” means the process through
which the adopted child is permanently separated
from his biological parents and becomes the
lawful child of his adoptive parents with all the
rights, privileges and responsibilities that are
attached to a biological child;
(2) (3) “adoption regulations” means the
regulations framed by the Authority and notified
by the Central Government in respect of
adoption;”
…..
…..
…..
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(2) (34) “inter-country adoption” means adoption
of a child from India by non-resident Indian or by
a person of Indian origin or by a foreigner;
……
…….
(2) (52) “relative”, in relation to a child for the
purpose of adoption under this Act, means a
paternal uncle or aunt, or a maternal uncle or aunt,
or paternal grandparent or maternal grandparent;’
‘Section 56. Adoption.
(1) Adoption shall be resorted to for ensuring right
to family for the orphan, abandoned and
surrendered children, as per the provisions of this
Act, the rules made thereunder and the adoption
regulations framed by the Authority.
(2) ……
(3) Nothing in this Act shall apply to the adoption
of children made under the provisions of the
Hindu Adoption and Maintenance Act, 1956.
(4) All inter-country adoptions shall be done only
as per the provisions of this Act and the adoption
regulations framed by the Authority.
……
…….
……’
‘Section 59. Procedure for inter-country adoption
of an orphan or abandoned or surrendered child.
(1) If an orphan or abandoned or surrendered child
could not be placed with an Indian or non-resident
Indian prospective adoptive parent despite the
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joint effort of the Specialised Adoption Agency
and State Agency within sixty days from the date
the child has been declared legally free for
adoption, such child shall be free for inter-country
adoption:
Provided that children with physical and
mental disability, siblings and children above five
years of age may be given preference over other
children for such inter-country adoption, in
accordance with the adoption regulations, as may
be framed by the Authority.
(2) An eligible non-resident Indian or overseas
citizen of India or persons of Indian origin shall be
given priority in inter-country adoption of Indian
children.
(3) A non-resident Indian or overseas citizen of
India, or person of Indian origin or a foreigner,
who are prospective adoptive parents living
abroad, irrespective of their religion, if interested
to adopt an orphan or abandoned or surrendered
child from India, may apply for the same to an
authorised foreign adoption agency, or Central
Authority or a concerned Government department
in their country of habitual residence, as the case
may be, in the manner as provided in the adoption
regulations framed by the Authority.
(4) The authorised foreign adoption agency, or
Central Authority, or a concerned Government
department, as the case may be, shall prepare the
home study report of such prospective adoptive
parents and upon finding them eligible, will
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J-WP-16232-2025.odtof a child from India, in the manner as provided in
the adoption regulations framed by the Authority.
(5) On the receipt of the application of such
prospective adoptive parents, the Authority shall
examine and if it finds the applicants suitable,
then, it will refer the application to one of the
Specialised Adoption Agencies, where children
legally free for adoption are available.
(6) The Specialised Adoption Agency will match a
child with such prospective adoptive parents and
send the child study report and medical report of
the child to such parents, who in turn may accept
the child and return the child study and medical
report duly signed by them to the said agency.
(7) On receipt of the acceptance of the child from
the prospective adoptive parents, the Specialised
Adoption Agency shall file an application [before
the District Magistrate] for obtaining the adoption
order, in the manner as provided in the adoption
regulations framed by the Authority.
(8) On the receipt of a certified copy of the [order
passed by the District Magistrate], the specialised
adoption agency shall send immediately the same
to Authority, State Agency and to the prospective
adoptive parents, and obtain a passport for the
child.
(9) The Authority shall intimate about the
adoption to the immigration authorities of India
and the receiving country of the child.
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(10) The prospective adoptive parents shall
receive the child in person from the specialised
adoption agency as soon as the passport and visa
are issued to the child.
(11) The authorised foreign adoption agency, or
Central Authority, or the concerned Government
department, as the case may be, shall ensure the
submission of progress reports about the child in
the adoptive family and will be responsible for
making alternative arrangement in the case of any
disruption, in consultation with Authority and
concerned Indian diplomatic mission, in the
manner as provided in the adoption regulations
framed by the Authority.
(12) A foreigner or a person of Indian origin or an
overseas citizen of India, who has habitual
residence in India, if interested to adopt a child
from India, may apply to Authority for the same
along with a no objection certificate from the
diplomatic mission of his country in India, for
further necessary actions as provided in the
adoption regulations framed by the Authority.’‘Section 60. Procedure for inter-country relative
adoption.
(1) A relative living abroad, who intends to adopt
a child from his relative in India shall obtain an
order from the [District Magistrate] and apply for
no objection certificate from Authority, in the
manner as provided in the adoption regulations
framed by the Authority.
(2) The Authority shall on receipt of the order
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J-WP-16232-2025.odtunder sub-section (1) and the application from
either the biological parents or from the adoptive
parents, issue no objection certificate under
intimation to the immigration authority of India
and of the receiving country of the child.
(3) The adoptive parents shall, after receiving no
objection certificate under sub-section (2), receive
the child from the biological parents and shall
facilitate the contact of the adopted child with his
siblings and biological parents from time to time.’‘Section 68. Central Adoption Resource
Authority.- The Central Adoption Resource
Agency existing before the commencement of this
Act, shall be deemed to have been constituted as
the Central Adoption Resource Authority under
this Act to perform the following functions,
namely:–
(a)……
(b) to regulate inter-country adoptions;
(c)……
(d) to carry out the functions of the Central
Authority under the Hague Convention on
Protection of Children and Cooperation in respect
of Inter-country Adoption;
….’
B] THE ADOPTION REGULATIONS 2022
’41. Central Adoption Resource Authority. -The
Authority shall:-
…….
…….
…..
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7) establish uniform standards and indicators,
relating to:-
……
……
(e) procedures for adoption where adoption is done
under the act other than the Juvenile Justice
Act,2015 (2 of 2016).
…….
…….
……
14) issue a system-generated No Objection
Certificate in the case of inter-country adoptions;
……
……
……
18) issue No Objection Certificate in cases of
adoptions done under Chapter VIII (Inter-country
adoptions under Hindu Adoptions and Maintenance
Act, 1956) of these regulations in cases of Hague
Adoption Convention ratified countries on
completion of required procedure and issue support
letter in cases of countries outside the Hague
Convention, on receiving letter of acceptance of the
said adoption from the concerned Government
department of the receiving country;
……’
’67. Procedure in the case of registered adoption
deed. –
(1) In the cases where the adoption deed has already
been executed in pursuance of adoption under the
Hindu Adoptions and Maintenance Act, 1956 (78 of
1956), before the commencement of the Adoption
(Amendment) Regulations, 2021, the requisite
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documents supporting the facts of the adoption deed
shall be duly verified and recommended by the
District Magistrate in the format as provided in
Schedule XXXV.
(2) On receipt of the verification of documents as per
Schedule XXXV, the Central Adoption Resource
Authority shall comply with the provisions of Articles
5 or 17 from the receiving country as provided in the
Hague Adoption Convention.
(3) Upon receiving such certificate, the Central
Adoption Resource Authority shall issue no
objection certificate for Hague ratified countries and
in cases of countries outside the Hague Convention
on Protection of Children and Co-operation in
respect of Inter-country Adoption, the Central
Adoption Resource Authority shall issue a support
letter upon receiving a letter accepting the said
adoption from the Government department.’
’68. Procedure for inter-country Adoption.-
(1) In the cases initiated after 17th September, 2021,
the following standard common procedure shall be
applicable for all inter-country adoptions concluded
under the Hindu Adoptions and Maintenance Act,
1956 (78 of 1956), by eligible non-resident Indians or
Overseas Citizen of India Cardholders, who are to
take a child in adoption from India.
(2) Any Hindu prospective adoptive parents
habitually residing abroad and who wish to adopt an
Indian Hindu child born to Indian Hindu Parents,
residing in India, may contact an Authorised Foreign
Adoption Agency or the Central Authority in case of
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Hague ratified countries and the Government
department concerned in case of Non-Hague
countries in their country of habitual residence, as the
case may be.
(3) The Authorised Foreign Adoption Agency or the
Central Authority or the Government department
concerned in their country of habitual residence shall
sponsor the application of eligible and suitable
prospective adoptive parents to the Central Adoption
Resource Authority.
(4) The Central Adoption Resource Authority shall
share the sponsoring letter and other requisite
information about the parents received from the
Authorised Foreign Adoption Agency or the Central
Authority or the Government department of the
receiving country, as the case may be, with the
District Child Protection Unit and the District
Magistrate of the district where the child is habitually
residing.
(5) The District Magistrate shall get a family
background report prepared which shall include all
required documents related to the biological parents
and the child proposed to be adopted and the report
shall be conducted through the District Child
Protection Officer as provided in Schedule XXI and
Schedule XXXVI.
(6) Upon receipt of the family background report, the
Central Adoption Resource Authority shall forward it
to the concerned Authorised Foreign Adoption
Agency, or Central Authority, in their country of
habitual residence for issuing necessary permission
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under Article 5 or 17 (Hague Adoption Convention
ratified countries).’
’69. Adoption process. –
(1) The parties to an adoption concluded under the
Hindu Adoptions and Maintenance Act, 1956 (78 of
1956) shall jointly present the deed of adoption to the
Sub-Registrar’s office in the district with copy to
District Magistrate.
(2) Based on such copy of the deed, the District
Magistrate shall conduct such inquiry, as he may
deem fit, to satisfy that all the provisions of Hindu
Adoptions and Maintenance Act, 1956 (78 of 1956).
and the stipulations under the regulations have been
followed and such inquiry shall be completed within
a period of thirty days.
(3) In case the District Magistrate fails to complete
the inquiry within thirty days, he shall be bound to
give reasons along with verification certificate for
failing to provide the inquiry report within thirty days
and the parties may register the adoption deed with
the Sub-Registrar concerned under the Registration
Act, 1908 (16 of 1908), indicating the details of
application made and that inquiry from District
Magistrate has not been received within the
stipulated time referred to in sub-regulation (2).
…..
…..’
’70. Issue of No Objection Certificate and
Conformity Certificate.-
(1) On receipt of verification certificate from the
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District Magistrate, on the registered adoption deed
and necessary permission under Articles 5 or 17 from
the receiving country as provided in the Hague
Adoption Convention on Protection of Children and
Co-operation in respect of Inter-country Adoption,
the Central Adoption Resource Authority shall issue
No Objection Certificate for Hague ratified countries
under Article 17(c) and Conformity Certificate under
Article 23 of the Convention.
…..’
15. Respondent No. 2 CARA filed an affidavit in reply dated
15.12.2025. The relevant paragraphs are 20 and 21, which read as under:
’20. That it is relevant to note that the Petitioners
have not adhered to the requisite statutory provisions
and procedural safeguards under the Adoption
Regulations, 2022. The adoption in question appears
to have been concluded under the Hindu Adoptions
and Maintenance Act, 1956 (HAMA). In this regard,
attention is invited to Section 56(3) of the Juvenile
Justice (Care and Protection of Children) Act, 2015,
which provides as follows:
‘Nothing in this Act shall apply to the
adoption of children made under the
provisions of the Hindu Adoption and
Maintenance Act, 1956 (78 of 1956).’
21. In view of the above, it is submitted that CARA
has no role or jurisdiction in respect of adoptions
concluded under HAMA, as the implementation and
monitoring of HAMA falls within the domain of the
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J-WP-16232-2025.odtcannot process or regularise any aspect of the present
adoption unless the Petitioners comply with the
requirements prescribed under the Adoption
Regulations, 2022 for relocation of a child adopted
under HAMA to a foreign country’.
16. In view of the oral and written submissions, we summarize the
contentions of the Petitioners, as under:
(a) What is overlooked is the significance of the word
‘necessary’ in Regulation 70(1). The expression ‘necessary
permission under Article 5 or Article 17′ cannot be read as if
such permission is required in every case without an exception.
(b) The significance of ‘necessary’ becomes clear upon a
reading of Article 5 of the Convention. Article 5 is reproduced
below for ready reference:
An adoption within the scope of the Convention
shall take place only if the competent authorities
of the receiving State – (a) have determined that
the prospective adoptive parents are eligible and
suited to adopt;
(b) have ensured that the prospective adoptive
parents have been counselled as may be
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(c) have determined that the child is or will be
authorized to enter and reside permanently in that
State.
(c) It is submitted that the present case does not fall within
the category of an Inter-Country adoption as contemplated by
the Convention.
(d) The language used in Regulations 67, 68, 69, and 70,
makes the distinction clear.
(e) Even the communication of the Australian authority,
viz. the email dated 28/04/2025 at page 113, Exhibit M,
indicates that the case is not being treated as an Inter-Country
adoption under the Convention, but as an expatriate adoption.
(f) A further reading of Article 5 also supports this position.
Article 5(a) and Article 5(b) of the Hague Convention
repeatedly refer to “prospective adoptive parents.” The
language is important. It shows that Article 5 is concerned with
a proposed adoption which is yet to be effected, where the
receiving State has to determine the eligibility and suitability
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of the prospective adoptive parents, ensure that they have been
properly counselled, and determine that the child will be
authorized to enter and reside permanently in that State.
(g) Regulation 68 deals with a prospective Inter-Country
adoption routed through the statutory mechanism involving the
foreign agency or Central Authority.
(h) Regulation 69 deals with an adoption that has already
been concluded under the Hindu Adoptions and Maintenance
Act, 1956. For the same reason, it also does not govern
adoptions falling under Regulation 67.
(i) Adopting a rigid construction that, in every case, prior
permission from the receiving Country is an absolute
precondition would render the word “necessary” otiose.
(j) Article 17 does not support the objection raised by
CARA. Properly construed, Article 17 does not justify the
insistence on a separate prior permission from the Australian
authorities as an inflexible precondition.
Trupti ...23 ::: Uploaded on - 02/04/2026 ::: Downloaded on - 03/04/2026 22:08:30 ::: J-WP-16232-2025.odt (k) So far as Article 23 of the Convention is concerned, the
same deals with recognition of an adoption certified by the
competent authority of the State of adoption.
(l) In the present case, the State of adoption is India.
Therefore, for the purposes of Article 23, what is relevant is
the certification by the competent Indian authority. A separate
certification by the Australian authority is not contemplated as
a precondition to the operation of Article 23.
(m) The email of the Australian authority dated 28.04.2025
indicates that the matter is not being treated by the Australian
side as an Inter-Country adoption under the Convention, but as
an expatriate adoption.
17. The Petitioners have relied upon the judgment delivered by
the learned Single Bench of the Delhi High Court on 30.05.2025 in Writ
Petition (C) No. 3880 of 2025 (Jasleen Iqbal Sidhu & Ors. versus Union of
India through Principal Secretary & Ors.). In this case, the adoptive mother
is an Indian, and the adopted child is the biological child of Petitioner Nos.
3 and 4, who are also Indians. They belong to a Sikh family. The adoptive
father is the elder brother of the biological father of the child. The adoptive
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parents became citizens of Australia. The adopted child was born on
20.01.2020, and the adoption certificate was issued by a Gurudwara. The
Adoption Deed was registered with the Joint Sub-Registrar, Nathana,
Bhatinda.
18. The adoptive parents Jasleen Iqbal Sidhu (supra) approached
Respondent No. 2, CARA for the issuance of an NOC in order to obtain a
visa for the adopted child. CARA took the stand that it has no jurisdiction
in matters pertaining to adoption under HAMA. It was argued that Chapter
VIII was incorporated in the Adoption Regulations on 23.09.2022, laying
down the procedural framework applicable to children adopted under
HAMA by parents desiring to relocate the adoptive child outside India.
CARA contended that the required documentation/certification has to be
procured from the concerned authority of the receiving Country as
contemplated under the Hague Convention. In the absence of such
documents, CARA cannot issue an NOC.
19. Article 37 of the Hague Convention, 1993 provides as under :
“Article 37 – In relation to a State which with
regard to adoption has two or more systems of law
applicable to different categories of persons, any
reference to the law of that State shall be construed
as referring to the legal system specified by the law
of that State”.
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20. In R.K. & Anr. Vs. Central Adoption Resource Authority,
2021:DHC:2671, it is recorded in paragraph 81 as under :
“81. ………The Hague Convention recognizes
HAMA adoptions under Article 37 but also
stipulates acquiring of an NOC from the Central
Authority in case of inter-country adoptions….”
21. In Jasleen Iqbal Sidhu (supra), the learned Single Judge
analyzed the pleadings in paragraph Nos. 26 to 39 and concluded in
paragraphs 40 and 41, as under:
“26. It can also be seen that the concerned Australian
Authorities (Department of Home Affairs, Australian
Government) has issued a communication dated
19.03.2024 addressed to the petitioner no. 2 (appended
as Annexure P-18 to the present petition) stating as
follows:-
“….
Provided with your application was an
adoption deed from India indicating that Jasleeniqbal
SIDHU and Iqbaljeet Singh Khalsa SIDHU adopted
you under the Hindu Adoptions and Maintenance Act
1956 (Ind) (HAMA) on 15 September 2020.
Any existing HAMA adoptions dated prior to 17
September 2021 can be registered with the Central
Adoption Resource Authority (CARA) retrospectively.
The process involves the adoptive parents engaging
with the District Magistrate (DM) office for validation
of their HAMA adoption deed, which, if validated,
will be registered with CARA, who will then provideTrupti …26
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adoption to the adoptive parents.
Departmental procedures confirmed the below
regarding your adoption deed:
• The adoption deed is genuine.
• The adoption was done under HAMA.
• As per the Adoption Regulation 2022 dated 23
September 2022, a support letter from the Central
Adoption Resource Authority (CARA) is required
for all HAMA adoption deeds registered prior to
September 2021.
• The CARA support letter is required to validate
the adoption for intercountry movement/settlement
of the adopted child and to complete the adoption
process.
• Ties with your biological parents being severed
and your adoptive parents having full and
permanent parental rights are subject to the CARA
support letter…..”
27. Thus, even the Australian Authorities, as per the
applicable law, have confined to seek certification as
regards compliance with HAMA, and only a support
letter is required from CARA on account of the fact
that the present case is a HAMA adoption duly
registered prior to September, 2021.
28. Admittedly, requisite certificate/s have also
already been issued by the District Magistrate
(Bathinda, Punjab). There is no ground for
withholding the grant of a support letter / NOC by
CARA.
29. It is rightly pointed out by the petitioners that in a
similar factual conspectus, the Supreme Court, in a
recent case of Prema Gopal v. Central Adoption
Resource Authority & Ors. in SLP (C) No.
14886/2024 (where the act of giving and taking of the
children was performed on 09.01.2020) has observed
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in the judgment/order dated 29.01.2025 that there can
be no hurdle in the consideration of the case of the
petitioner therein, having regard to the provisions of
the Adoption Regulations 2022 and considering that
the adoption took place prior to the coming into force
of the said regulations.
30. Vide order dated 24.03.2025 passed in the
aforementioned case of Prema Gopal (supra), the
Supreme Court issued specific directions to CARA to
issue No Objection Certificate to the petitioner. It was
observed as under:-
“In the circumstances, we direct respondent no. 1 to
comply with sub-section 2 of Section 60 of the Act
and issue ‘No Objection Certificate’ to the petitioner
herein within a period of four weeks from today.
For immediate reference, Section 60 of the aforesaid
Act is extracted as under –
“60. Procedure for inter-country relative adoption-
(1) A relative living abroad, who intends to adopt a
child from his relative in India shall obtain an order
from the [District Magistrate] and apply for no
objection certificate from Authority, in the manner as
provided in the adoption regulations framed by the
Authority.
(2) The Authority shall on receipt of the order under
sub-section (1) and the application from either the
biological parents or from the adoptive parents, issue
no objection certificate under intimation to the
immigration authority of India and of the receiving
country of the child.
(3) The adoptive parents shall, after receiving no
objection certificate under sub-section (2), receive the
child from the biological parents and shall facilitate
the contact of the adopted child with his siblings and
biological parents from time to time.
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On a perusal of sub-section 2 of Section 60, it is noted
that when respondent no.1/Authority receives an order
under sub-section 1 from the District Magistrate or the
Collector as in the instant case and the application
from either the biological parents or from the adoptive
parents, as the case may be, shall issue no objection
certificate only under intimation to the immigration
authority of India and of the receiving country of the
child. The said sub-section does not envisage any `no
objection certificate’ to be issued by the country
where the child is to proceed. Therefore, the Authority
shall now consider the certificate issued by the District
Collector and process the matter under sub-Section 2
of Section 60 of the Act by issuance of `no objection
certificate’ with intimation to the immigration
authority of India and of the receiving country of the
child, i.e, United Kingdom”
31. As such, the respondent no. 2 is bound to follow
the same procedure in the present case as well; after
considering the certificate issued by the District
Magistrate, the matter is required to be processed for
issuance of a No Objection Certificate / support letter,
as sought by communication dated 19.03.2024 issued
by the Department of Home Affairs, Australian
Government.
32. The second objection on behalf of CARA,
regarding the invalidity of the Power of Attorney on
the basis of which the Adoption Deed was registered,
is also insubstantial.
33. A perusal of the Power of Attorney issued in the
present case reveals that it has been issued in favour of
the petitioner no. 5, and inter alia authorizes as under:-
“4. The attorney/s power is subject to the following
terms:
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to act on my behalf in my adoption of ALAMBIR
SINGH SIDHU (DOB: 22/01/2020), baby boy of my
younger brother JASPAL SINGH SIDHU and his wife
SHARANJEET KAUR SIDHU, who is currently
residing in India including but is not limited to the
following:
1. entering into, signing and executing adoption deed
or any necessary documents for the purpose of
adopting the afore-mentioned baby and having the
adoption deed or documents registered or presented to
relevant authorities for registration;
2. attending interview, lodging applications, liaising
with the relevant parties or officers from the
Department of Home Affairs;
3. after visa is granted, travel with the baby and bring
the baby to Australia;
and to do all such acts and things as my said attorney
shall deem fit for the purpose of registration of the
above mentioned adoption deed, lodging and
obtaining visa, and bring my adopted child to
Australia.”
34. Learned counsel for the petitioners relies upon the
judgment of the Punjab and Haryana High Court in
Narinderjit Kaur v. Union of India and Another [AIR
1997 P&H 280], in which, it has been clearly held that
a child can be adopted “under the authority” of the
parents. It has been observed in that case as under:-
“5. Validity of adoption has to be examined in the
light of the Hindu Adoptions and Maintenance Act,
1956 (hereinafter referred to as ‘the Act’). Section 6 of
the Act provides that no adoption shall be valid unless
the person adopting has the capacity and also the right,
to take in adoption, the person giving in adoption has
the capacity to do so; the person adopted is capable of
being taken in adoption and the adoption is made inTrupti …30
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J-WP-16232-2025.odtcompliance with the other conditions mentioned in
Section 11.
6. Capacity of the natural parents to give and the
capacity of the adoptive mother to take the petitioner
in adoption is not in dispute. It is also not disputed
that the petitioner was capable of being taken in
adoption. Other conditions for a valid adoption are
prescribed in Section 11 of the Act. Relevant provision
of this section with which we are concerned is (vi),
which reads as under: –
(vi) the child to be adopted must be actually given and
taken in adoption by the parents or guardian
concerned or under their authority with intent to
transfer the child from the family of its birth or in the
case of an abandoned child or a child whose parentage
is not known, from the place or family where it has
been brought up to the family of its adoption.”
7. It clearly envisages that the child can be
adopted “under the authority” of the parents. In
this case, the adoptive mother had executed a
valid power of Attorney authorising Surjit Singh
Jaswal to take the petitioner in adoption on her
behalf. Actual adoption took place according to
the Sikh rites in the presence of Sri Guru Granth
Sahib. Child was given in adoption willingly by
the natural parents and was taken in adoption by
the adoptive mother through her Attorney with
the intention of transferring the child from the
family of its birth. Adoption made was valid
adoption and the finding recorded to the
contrary in order Annexure P-1, cannot be
sustained. Respondents have themselves
admitted that on a subsequent advice given by
the Law Ministry, it has been clarified that
adoption could be made ‘under the authority’
given by the adoptive parents. The ground taken
by the respondents now that the passport cannot
be issued to the petitioner because of the
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remarriage of the adoptive mother on
16.11.1994 is also not sustainable. Adoption
took place on 2.3.1990 and for all intents and
purposes, adoption would be deemed to have
been completed on that date. On that date,
adoptive mother had the capacity to take the
child in adoption. Adoption cannot be
invalidated because of the subsequent marriage
of the adoptive mother. Petitioner became the
daughter of the adoptive mother on the date she
was taken in adoption and is, thus, entitled to a
new passport with the name of her adoptive
mother inserted in it.”
[emphasis supplied]
35. The above observations clearly apply to the facts
of the present case.
36. It is also fallacious to contend that the concerned
General Power of Attorney is not valid as per the
Queensland Power of Attorney Act. No such objection
has been raised by the Australian Authorities; and
therefore, it is untenable for the respondent no. 2 to
take this stand.
37. It is noted that the concerned Adoption Deed has
already been registered on the basis of the Power of
Attorney in question. The religious rituals and
ceremony for the purpose adoption was executed as
far back as 27.02.2020 (much prior to registration of
the Adoption Deed) in the presence of the adopted
parents and biological parents, and the handing over
and taking over of the child also happened on that day
itself.
38. There is no controversy that the Adoption Deed
that was executed thereafter was based upon
authorization given by the adoptive parents in favour
of their mother, who is also the mother of the
biological parents.
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39. Had there been any legal lacuna in the Power of
Attorney in terms of the applicable provisions of the
Australian Law, the objection to this effect would have
been raised by the Australian Authorities themselves.
40. In the aforesaid circumstances, there appears no
impediment to CARA issuing the requisite NOC for
the purpose of taking the petitioner no. 2 to Australia.
41. Thus, in line with the orders passed by the
Supreme Court in Prema Gopal (supra), the
respondent no. 2 (CARA) is directed to issue the
requisite NOC to the petitioners within a period of
four weeks from today.”
22. In Prema Gopal Versus Central Adoption Resource Authority
& Ors., Special Leave to Appeal (Civil) No. 14886 of 2024, the Hon’ble
Supreme Court dealing with the case of adoption under HAMA, prior to
the introduction of the Adoption Regulations, 2021 has recorded as under :
‘…..Since the petitioner herein is a citizen of UK,
the procedure for adoption of children under the
HAMA, 1956 by parents who desire to relocate the
child abroad, as envisaged under Chapter VIII of
the Adoption Regulations, 2022 (“Regulations,
2022”) has to be followed.
In this regard, our attention was drawn to
Regulations 64 and 67 of the Regulations, 2022,
which read as under –
“64. This Chapter shall apply to — (a) all
adoption cases under the Hindu Adoptions and
Maintenance Act, 1956 (78 of 1956) byTrupti …33
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J-WP-16232-2025.odtprospective adoptive parents or adoptive parents
residing outside the country and
(b) all adoption cases pertaining to countries
outside the Hague Adoption Convention.
67. Procedure in the case of registered adoption
deed.― (1) In the cases where the adoption
deed has already been executed in pursuance of
adoption under the Hindu Adoptions and
Maintenance Act, 1956 (78 of 1956), before the
commencement of the Adoption (Amendment)
Regulations, 2021, the requisite documents
supporting the facts of the adoption deed shall
be duly verified and recommended by the
District Magistrate in the format as provided in
Schedule XXXV.
(2) On receipt of the verification of documents
as per Schedule XXXV, the Central Adoption
Resource Authority shall comply with the
provisions of Articles 5 or 17 from the receiving
country as provided in the Hague Adoption
Convention.
(3) Upon receiving such certificate, the Central
Adoption Resource Authority shall issue no
objection certificate for Hague ratified countries
and in cases of countries outside the Hague
Convention on Protection of Children and Co-
operation in respect of Inter-country Adoption,
the Central Adoption Resource Authority shall
issue a support letter upon receiving a letter
accepting the said adoption from the
Government department.’
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Learned counsel submitted that although the
adoption of the twin children in the instant case took
place on 09.01.2020, the Deed of Adoption was
subsequently registered on 19.09.2022. He submitted
that the said Deed of Adoption would relate back to
09.01.2020, on which date the religious ceremonies
were performed in the presence of relatives and friends
for the formal adoption of the children under the
provisions of the HAMA, 1956. In the circumstances,
Regulation 67 has to be read in a manner relatable to
the date of adoption. The submission of learned counsel
was that although the Deed of Adoption was registered
on 19.09.2022 which is subsequent to the
commencement of the Adoption (Amendment)
Regulations, 2021, the said Deed of Adoption relates
back to the date of adoption being 09.01.2020. In the
circumstances, there can be no hurdle in the
consideration of the case of the petitioner herein under
Regulation 67 of the Regulations, 2022. Therefore, he
urged that initially a direction may be issued to
respondent no.3/Collector, and respondent no.2 as well,
for the purpose of consideration of the case under
Regulation 67 of the Regulations, 2022.
Per contra, learned ASG appearing for
respondent No.1/Central Adoption Resource Authority
contended that this is a case of inter-country adoption
and therefore, the procedure as envisaged under the
Regulations for inter country adoption must be strictly
complied with. In this regard, our attention was drawn
to Regulations 67 and 68 of the Regulations, 2022 as
well.
Learned counsel appearing for respondent nos. 2
and 3 submitted that if any direction is to be issued to
respondent nos.2 and 3, the same would be complied
with in accordance with law.
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We are prima facie of the view that the learned
counsel for the petitioner is right in his submissions.
In the circumstances, we direct respondent
no.3/Collector and respondent no.2 to entertain the
application to be filed by the petitioner herein with all
supporting documents, within a period of one week of
from today.
On receipt of the said application, respondent
nos.3 and 2 shall consider the case of the petitioner
herein having regard to the relevant provisions of the
Regulations, 2022 and in accordance with law bearing
in mind the fact that the adoption took place on
09.01.2020.
Liberty is reserved to the petitioner herein to
seek right of hearing before respondent no.3 either in
person or through her representative or counsel.
It is needless to observe that if such a request is
made by the petitioner for an opportunity of hearing to
her or her representative or counsel, the same shall be
accorded by respondent no.3/Collector.
The entire exercise shall be completed by
respondent nos.3 and 2 within a period of two weeks
from the date of hearing of the petitioner.
……’
23. Subsequently, by a further order dated 24.03.2025 in Prema
Gopal (supra), the Hon’ble Supreme Court, in the backdrop of a certificate
having been issued by the Collector’s Office, Chennai, issued the following
directions:
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‘We have heard learned A.S.G. appearing for
respondent no.1.
In the circumstances, we direct respondent no. 1 to
comply with sub-section 2 of Section 60 of the Act
and issue ‘No Objection Certificate’ to the petitioner
herein within a period of four weeks from today.
For immediate reference, Section 60 of the aforesaid
Act is extracted as under –
’60. Procedure for inter-country relative
adoption-
(1) A relative living abroad, who intends to
adopt a child from his relative in India shall
obtain an order from the [District Magistrate]
and apply for no objection certificate from
Authority, in the manner as provided in the
adoption regulations framed by the Authority.
(2) The Authority shall on receipt of the
order under sub-section (1) and the
application from either the biological parents
or from the adoptive parents, issue no
objection certificate under intimation to the
immigration authority of India and of the
receiving country of the child.
(3) The adoptive parents shall, after receiving
no objection certificate under sub-section (2),
receive the child from the biological parents
and shall facilitate the contact of the adopted
child with his siblings and biological parents
from time to time.’
On a perusal of sub-section 2 of Section 60, it is noted
that when respondent no.1/Authority receives an order
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under sub-section 1 from the District Magistrate or the
Collector as in the instant case and the application from
either the biological parents or from the adoptive parents,
as the case may be, shall issue no objection certificate
only under intimation to the immigration authority of
India and of the receiving country of the child. The said
sub-section does not envisage any `no objection
certificate’ to be issued by the country where the child is
to proceed. Therefore, the Authority shall now consider
the certificate issued by the District Collector and process
the matter under sub-Section 2 of Section 60 of the Act by
issuance of `no objection certificate’ with intimation to the
immigration authority of India and of the receiving
country of the child, i.e, United Kingdom.
The said exercise shall be completed within a
period of four weeks from today.
List on 22.04.2025′.
24. In Prema Gopal (supra), the Hon’ble Supreme Court directed
on 22.04.2025 that the CEO (Joint Secretary) of CARA would remain
present in Court on 30.04.2025. On 30.04.2025, the Hon’ble Supreme
Court issued the directions as follows:
‘ A copy of the provisional certificate was also placed
before us. On perusal of the same, we find that the
certificate refers to the pendency of the present petition
and the directions issued hereunder which is wholly
unwarranted.
In response to the same, learned counsel for the
petitioner has stated that earlier, the CEO has issuedTrupti …38
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J-WP-16232-2025.odtSupport Letters in a particular format and therefore the
Support Letter in a similar format may be issued,
having regard to the facts of the present case.
Hence, learned counsel for the petitioner to submit a
format having regard to the earlier Support Letter
which has been issued by CARA in a similar case. The
same would be considered and adopted for the purpose
of issuing the Support Letter in the present case also.
On receipt of the said format, the CEO, CARA shall
issue the Support Letter accordingly.
List the matter on 13.05.2025 at 2.00 P.M. By then
the CEO, CARA to issue the Support Letter as per the
format submitted by the petitioner’s counsel.
On such Support Letter being issued, the petitioner
to take steps for the purpose of immigration,
recognition and registration of the children who have
been adopted by placing the necessary order in that
regard before this Court.
The petitioner to appear before this Court through
video conference facility on the next date of hearing.
The biological father of the adopted children to also
appear in-person or through video conferencing facility
on that date’.
25. In Prema Gopal (supra), the Hon’ble Supreme Court then
directed on 13.05.2025, as under:
‘ Learned counsel for the petitioner raised
objections on the contents of the affidavit datedTrupti …39
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J-WP-16232-2025.odt09.05.2025. The affidavit has been sworn to by Ms.
Richa Ojha, Deputy Director, Central Adoption
Resource Authority under the Ministry of Women &
Child Development, Government of India, New
Delhi.
When this was pointed out to learned A.S.G.
appearing for the respondents, she very fairly
submitted that the affidavit may be discarded and the
same would also not be pressed.
We place on record the submission of learned
A.S.G.
Consequently, the aforesaid affidavit dated
09.05.2025 is not taken on record as it is withdrawn
and the contents of the said affidavit are discarded.
Learned counsel for the petitioner
categorically submitted that the letter which has been
issued on 09.05.2025 may be styled as “No
Objection Certificate”.
Further, the fourth paragraph of the same shall
read as under:
“This is to mention that adoption under
Hindu Adoption and Maintenance Act,
1956 is evidenced by the Registration of
the Adoption Deeds, Verification
Certification Reports and Family
Background Report issued by District
Magistrate, Chennai on 25.02.2025
(Annexure-1).”
The said certificate shall be issued within a
period of one week from today.’
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26. Mr. Anturkar, the learned Senior Advocate for the Petitioners,
vide his brief written notes, has canvassed as under:
(a) Regulation 67 will not apply in cases where the Deed of
Adoption is registered after the 2021 Regulations were
introduced;
(b) Regulation 68 applies the procedure to Inter-Country
adoptions concluded under HAMA by eligible NRIs or OCI
holders who intend to adopt a child;
(c) In the present case, the adoptive mother was an Indian, and
the adoptive father was an OCI cardholder when the adoption
was solemnized under HAMA;
(d) Under Regulation 69, the parties to an adoption concluded
under HAMA have to present the Deed of Adoption to the
Sub-Registrar’s Office for registration;
(e) Regulation 69 does not use the words NRI or OCI
cardholders;
f) The words “parties to an adoption” in Regulation 69 are
wide enough to include both resident and non-resident
adoptive parents. Hence, when one parent is an Indian and the
other is an OCI cardholder, Regulation 69 would apply.
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27. The learned Advocate representing the CARA has relied upon
a judgment delivered by Karnataka High Court in U. Ajay Kumar and
Another Versus Union of India, Represented by its Member Secretary and
Chief Executive Officer, AIR 2024 Kar 93. We are considering the facts of
this case and the conclusion drawn by the Karnataka High Court in the
sub-paragraphs to follow.
27.1 In this case, both the Petitioners were citizens of India. Since
they did not have any child from the marriage for a long time, the couple
adopted a girl child in the presence of relatives and friends. The biological
mother gave her child in adoption by executing an Adoption Deed on
29.03.2023, before the office of the Sub Registrar, Chikkaballapura, as a
child was born in the said town and the biological mother was a resident of
the said town. Upon registration of the Adoption Deed, verification was
done by the Deputy Commissioner as required by law and the certificate of
verification was also issued along with the recommendation that adoption
of the child is valid and necessary action be taken. The Petitioner couple
sought issuance of an NOC and a Conformity Certificate in favour of the
adoption by producing it before the DCPU. The DCPU has not considered
the request and has declined to issue an NOC as also the Conformity
Certificate of Adoption (CCA).
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27.2 The request was opposed by the Respondent contending that
the adoption under HAMA is not internationally recognized. The Inter-
Country adoption is a product of Hague Convention on protection of
children and cooperation in respect of Inter-Country adoption and under
Articles of Convention, as rectified into regulations, they would have to
require the Petitioners to go before the Country in which the father resides,
communicate a mail to the Indian counterpart under adoption regulations
and within 10 days a certificate and NOC would be issued. If Hague
Convention had recognized HAMA, no objection would have been granted
to the Petitioner. As Hague Convention does not recognize HAMA, that
the prayer of the Petitioners was refused.
27.3 The Single Judge Bench of the Karnataka High Court framed
the following issues :
Whether the Petitioners are entitled to a NOC and Conformity
Certificate of the kind of adoption under the Act?
27.4 The Karnataka High Court relied upon the relevant provisions
applicable and observed that pursuant to the Hague Convention, certain
regulations are promulgated by the Government of India by notification
issued on 23.09.2022 in exercise of powers conferred under Section 68 (c)
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J-WP-16232-2025.odtread with Section 2 (3) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to as ‘the Juvenile Justice Act‘).
27.5 In paragraph 17, the Karnataka High Court recorded that
issuance of NOC under Regulation 70 mandates that on receipt of
verification certificate from the District Magistrate, necessary permission
under Article 5 or 17 from the receiving Country as provided under the
Hague Adoption Convention in respect of Inter-Country adoption, that the
CARA shall issue NOC in conformity with Article 23 of the Convention.
27.6 As such, the Karnataka High Court concluded that what
unmistakably emerges on the conjoint reading of the Regulations, is the
District Magistrate has to issue a verification certificate on the Adoption
Deed and necessary permission from the receiving Country. Issuance of
NOC and Conformity Certificate is to be from India. This process is under
Regulations 68 and 69.
27.7 The Karnataka High Court considered the law laid down by
the Hon’ble Supreme Court in Temple of Healing Versus Union of India
(Writ Petition (Civil) No. 1003 of 2021 delivered on 20.11.2023) and noted
that all States and Union Territories have to submit to the Competent
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J-WP-16232-2025.odtAuthority, data of Hindu Adoptions within a time frame, to streamline and
expedite the rights of adopted children in Signatory Nations to the Hague
Convention.
27.8 The Karnataka High Court thereafter noted the observations of
the Hon’ble Supreme Court in Special Leave to Appeal (C) No. 13627 of
2019 decided on 10.06.2019 (Karina Jane Creed Versus Union of India and
Others) and considered the observations in paragraph Nos. 4 to 11 wherein
it was held that the statutory requirement of Section 59 (12) of the Juvenile
Justice Act, could not have been waived.
27.9 The Karnataka High Court then concluded that a foreigner or a
person of India Origin or an OCI can apply for adoption of a child from
India to the authority with NOC from the Diplomatic Mission of his
Country in India.
27.10 Considering that the Petitioners/ couple were Indian citizens
and the adoptive father was residing in Frankfurt, Germany and the wife
was a resident of Bengaluru, the Karnataka High Court directed the
Petitioners to approach the receiving Country i.e., Germany for a
communication to the CARA for necessary action. If the Petitioners
received a communication from the receiving country, the CARA shall
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J-WP-16232-2025.odtissue a NOC and Conformity Certificate within 10 days from the date of
such communication from Germany.
28. We have noted that, in Prema Gopal (supra), the adoption
under HAMA had taken place on 09.01.2020 which was prior to the
introduction of the new Regulations in 2022. Chapter VIII to the Adoption
Regulations, 2022 was added on 23.09.2022, laying down the procedural
frame work applicable to children adopted under HAMA by parents
desiring to locate the adoptive child outside India.
29. We have also noted that, in Temple of Healing (supra), the
Hon’ble Supreme Court (Three Judges Bench) recorded in paragraph 20
that, ‘as regards HAMA, during the course of hearing, both Ms Aishwarya
Bhati, Additional Solicitor General and Dr.Jagannath Pati, Director CARA
have categorically stated before the Court that the process of adoption
under HAMA is independent of the Regulations of 2022 which have been
framed under the Juvenile Justice Act, 2015.’ It has been stated that CARA
intervenes only when an adoption certificate is required by the adoptive
parents in order to facilitate the travel of the adopted child to a Country
outside India. CARA has stated in its note submitted to the Hon’ble
Supreme Court that, based on the fact that HAMA is a statute governing
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J-WP-16232-2025.odtthe personal laws for Hindus, the Ministry of Women and Child
Development has issued a notification on 17.09.2021, entrusting CARA
with the duty of issuing documents for Inter-Country adoption concluded
under HAMA wherein NRI/ OCI Card Holder parents desire to relocate the
adopted child, abroad. The note submitted also indicates that a central
challenge is to ensure that HAMA adoptions align with international
adoption conventions, such as the 1993 Hague Inter-Country Adoption
Convention. It has been stated that although CARA has been processing
adoption cases of NRI/ OCI – Prospective Adoptive Parents (PAPs), the
receiving authorities do not necessarily consider HAMA to be in
conformity with the Hague Convention procedure. CARA has thus far
issued adoption support letters to NRI/ OCI-PAPs in 66 cases since May
2022.
30. It is noteworthy that Adoption Regulations, 2022 have been
introduced specifically for regulating the adoption of children. The
adoption by the adoptive couple has occurred on 21.04.2023 and was
registered with the Joint Sub Registrar on the same day. When the child
was adopted, the adoptive father was an Australian citizen and the adoptive
mother was an Indian citizen. Therefore, the Respondent Authorities have
termed such adoption as an Expatriate Adoption. There is no provision
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J-WP-16232-2025.odteither in the Juvenile Justice Act or the Adoption Regulations 2022, which
defines Expatriate Adoption. Nevertheless, this adoption is legal under the
provisions of HAMA.
31. In Prema Gopal (supra) since the adoption had already taken
place under HAMA prior to the introduction of the Adoption Regulations,
2022, Section 60 of the Juvenile Justice Act was taken into account and the
Hon’ble Supreme Court concluded that ‘the parties have to obtain an order
from the District Magistrate for adopting a child and then the PAP had to
apply for certificate in the manner provided in the Adoption Regulations
framed by the authority. After an order from the District Magistrate is
received, the application made either by the biological parents or from the
adoptive parents, would issue a No Objection Certificate under intimation
to the Immigration Authority of India and of the receiving country of the
child. Under Sub Section 3, the adoptive parents, after receiving the No
Objection Certificate under Sub Section (2), shall receive the child from
the biological parents and shall facilitate the contact of the adopted child
with his siblings and biological parents from time to time’.
(emphasis is supplied)
32. The adoptive parents, Prema Gopal, had received the order
from the District Magistrate. The Hon’ble Supreme Court recorded in the
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order dated 24.03.2025 that Sub Section 2 of Section 60 does not envisage
any ‘No Objection Certificate’ to be issued by the Country where the child
is to proceed. Therefore, the authority was directed to consider the
certificate issued by the District Collector and process the matter under
Sub Section 2 of Section 60 of the Juvenile Justice Act for issuance of the
NOC with intimation to the Immigration Authority of India and of the
receiving Country of the child.
33. In the present case, since the adoption has taken place after the
introduction of the Adoption Regulations 2022, which are specifically
introduced for the purpose of regulating adoption of children, such
Regulations would apply. On considering the language used in Regulation
67, it is quite obvious that this Regulation would not apply to this case
since it deals with cases where the adoption has already been executed
under HAMA, prior to the commencement of Adoption (Amendment)
Regulations 2021.
34. Actually, Regulation 68 would apply to this case because it
applies to cases initiated after 17.09.2021, which have to follow the
Standard Common Procedure for all Inter-Country adoptions concluded (to
be read also as ‘to be concluded’, considering the future tense) under the
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HAMA, by eligible NRI or OCI, who are to take a child in adoption from
India. Sub Clause 2 clears all doubts about the applicability of Regulation
68 with the opening words ‘Any Hindu prospective adoptive parents
habitually residing abroad and who wish to adopt…’ . In the case before us,
the adoption has already taken place under the HAMA. Ideally, the
Petitioners should have followed Regulation 68, as the adoption has taken
place after 17.09.2021. However, in the peculiar facts and circumstances of
this case, the procedure under sub-clauses (2) to (6) cannot be enforced
upon this case as the adopted child is from the family of a close relative
and the adoption has legally taken place under the HAMA. These events
now cannot be reversed only because the procedure under Regulation 68
was not followed. We have to consider the future of the adopted baby as
well.
35. Regulation 69 prescribes the adoption process and considers
the case of parties to an adoption already concluded under the HAMA.
This Regulation will have to be read as being applicable to the case of the
Petitioners because the language used in Regulation 67 applies to Adoption
Deeds already executed under HAMA prior to the 2021 Regulations, which
has subsequently been replaced by the 2022 Regulations. Hence,
considering the language used in Regulation 69, the said Regulation is
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being made applicable to this case, only due to the peculiar facts before us.
Strictly speaking, Regulation 68 would have applied to this case, but for
the peculiar facts as recorded above. Regulation 68, therefore, will apply
independently to cases not covered by Regulation 67.
36. We find that the facts of this case are quite peculiar. The
adoption has legally taken place under the HAMA. The Australian
authority clearly mentions in it’s email dated 28.04.2025, that this is not an
Inter-Country adoption. It has formed an opinion that this is an expatriate
adoption. It has also stated that this expatriate adoption falls outside
Australia’s regulated Inter-Country adoption process. An Indian Passport
has also been issued by the Government of India to the adopted daughter
indicating the names of her adoptive parents in the Passport. Regulation
41(18) enables CARA to issue an NoC in cases of adoptions under chapter
VIII (Inter-Country adoptions under HAMA) in cases of the Hague
Adoption Convention ratified Countries.
37. In Jasleen Iqbal Sidhu (supra), it has been held that even the
Australian authorities (Department of Home Affairs, Australian
Government) had interacted with the Petitioner and the learned Single
Judge Bench, therefore, concluded that the District Magistrate should
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undertake a verification exercise. A support letter from CARA is required
for all HAMA adoption deeds, under the 2022 Regulations. Such support
letter is needed for validating the adoption for Inter-Country
movement/settlement of the adopted child. The facts in Jasleen Iqbal Sidhu
(supra) and in Prema Gopal (supra), are also quite peculiar and similar to
the case in hands, as is evident from the narration of the facts in those
cases.
38. In the case before us, we see a child who is born as a result of
an unplanned pregnancy of the biological parents, who already have two
children, a son and a daughter. The girl child was 45 days old when she
was adopted by the adoptive mother, who then was an Indian citizen. If the
child is not permitted to be taken to Australia because of technicalities, the
adoption would fail. Be that as it may, we do not find any illegality in the
adoption under HAMA. It is only that this case has to be navigated through
complex laws, to bless the adopted child with the love and care of the
adoptive parents. The adoptive mother is living in India for the last about 3
years, only to care for the adopted child, though she is now a citizen of
Australia. No body needs to be convinced of the sincerity and purity of the
feelings of the adoptive parents, in view of the above facts.
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39. We have kept in mind the stand taken by ‘Inter-Country
Adoption Australia’ vide its communication dated 28.04.2025 via email,
that expatriate adoptions fall outside Australia’s regulated Inter-Country
adoption process and are, therefore, not considered as Inter-Country
adoptions. The Australian authorities have categorically stated that this is
not an Inter-Country adoption because the adoptive mother was an Indian
citizen and the adopted child is an Indian. It is apparent that the said
authorities need the appropriate authority in India to do the scrutiny and
indicate it’s clearance. This authority is CARA. Having considered the
above peculiar circumstances, inasmuch as the stand of ‘Inter-Country
Adoption Australia’ authority that the present adoption is not Inter-Country
adoption, Articles 5 and 17 of the Hague Convention would not apply in
this case.
40. Though the adoptive mother had approached the Civil Court,
it is apparent from the order adverted to herein above that the Civil Court
concluded that the application could not be entertained and simply filed the
application. The learned Single Judge of this Court allowed the Petitioners
to withdraw the application and file an appropriate proceeding.
41. Considering the above, we are of the view that the Petitioners,
adoptive couple, will have to follow Regulations 69 and 70 of the Adoption
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Regulations, 2022. Since Regulation 69(1) has already been complied
with, the adoptive couple will have to approach the District Magistrate who
would conduct an inquiry to satisfy itself that all the provisions of HAMA,
have been followed. Such inquiry shall be completed within 30 days.
Keeping in view the passage of time, we would not appreciate if the
District Magistrate seeks extension of time under clause (3) of
Regulation 69.
42. On receipt of the verification certificate on the registered
Adoption Deed from the District Magistrate, we deem it appropriate to
follow the recourse adopted by the Hon’ble Supreme Court in Prema
Gopal (supra) and by the High Courts in Jasleen Iqbal Sidhu (supra) and R.
K. and another (supra). CARA would issue a NOC under intimation to the
Immigration Authority of India and the Immigration Authority of Australia,
within 15 days of the submission of the District Magistrate’s verification
certificate.
43. With the above directions, the Writ Petition is disposed off.
44. Rule is discharged.
[ABHAY J. MANTRI, J.] [RAVINDRA V. GHUGE, J.]
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