Master Divyansh Arora Minor … vs Union Of India & Ors. on 14 November, 2017

*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 14th November, 2017

+ W.P.(C) 6759/2016
MASTER DIVYANSH ARORA MINOR THROUGH
HIS NEXT FRIEND RAJ KUMAR ARORA ….. Petitioner

versus

UNION OF INDIA ORS. …. Respondents
Advocates who appeared in this case:

For the Petitioner : Ms. Sumita Kapil with Ms Pooja Swami
For the Respondents : Mr Gaurang Kanth with Mr. Kavindra Gill and
Ms Eshita Baruah

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

1. By this petition, the petitioner seeks a direction in the nature of
mandamus thereby directing the respondents to issue directions to the
respective Visa Issuing Authorities that Certificate from Central
Adoption Resource Authority (CARA) is not mandatory in view of an
order of a Court under Hindu Adoptions and Maintenance Act, 1956
(hereinafter referred to as „the HAMA Act‟) from a Competent Court
and further for a direction to respondent No.3, i.e., Ministry of
External Affairs to issue a passport to the petitioner.

2. The petitioner was born on 15.01.2004. The biological parents
of the petitioner are Shri Raj Kumar Arora and Smt Neeru Arora. The

W.P.(C) No.6759 /2016 Page 1 of 26
petitioner was adopted by his paternal uncle and aunt, i.e., the elder
brother of Shri Raj Kumar Arora and his wife, namely, Shri Dalip
Kumar Arora and Smt Vaishali Arora. Formalities and ceremonies
for adoption were performed on 26.01.2015. A registered Adoption
Deed was executed on 27.01.2015. The adoptive parents, who were
married since 11.07.2008, did not have any child despite undergoing
various medical procedures. The adoption of the petitioner was
ratified by the Court of District Sessions Judge (West), Tis Hazari
Courts, Delhi, in a Guardianship Petition No.01/2015 by judgment
dated 28.05.2015.

3. The adoptive parents of the petitioner are German citizens with
Overseas Citizen of India (OCI) status and live in Hannover,
Germany.

4. As per the petitioner, since the adoption was an inter-country
adoption, the parents of the petitioner approached CARA, as directed
by the German Consulate at Delhi. CARA refused to assist the
petitioner’s parents but required them to apply through proper channel
for adoption on the premise that CARA was the Central Authority
regulating inter-country adoptions, which were guided by the
provisions of The Hague Convention, 1993 and accordingly, the
parents would require a No Objection Certificate from CARA prior to
applying for a visa and for such a Certificate they had to make an
application for adoption with CARA. The parents of the petitioner
allege to have approached CARA various times but there was no

W.P.(C) No.6759 /2016 Page 2 of 26
response or assistance from them.

5. It is contended that despite the fact that there is a valid adoption
of the petitioner by the adoptive parents and there is a Deed of
Adoption dated 27.01.2015 and a judgment of the Competent Court
dated 28.05.2015 ratifying the adoption, CARA has required the
parents of the petitioner to go through a cumbersome process by
making an application for adoption to CARA.

6. It is contended that reliance placed by CARA on the guidelines
of 2015, which were notified on 17.07.2015 under the Juvenile Justice
Act, 2015, which in itself was effective on 01.01.2016, the said Act is
not applicable to adoption of children made under the provisions of
HAMA Act.

7. It is further contended that the guidelines of 2015 are not
applicable, first of all, because they were notified after the adoption in
the present case on 27.01.2015 and would only cover an orphan,
abandoned or surrendered child and does not covered inter-country
direct adoptions. It is contended that the present case is not only of an
inter-country direct adoption but an adoption within the family.

8. The respondents have contended that it is mandatory for the
adoptive parents to obtain the agreement/approval of the Central
Authority concerned in Germany as well as the NOC (agreement) of
CARA under
Article 17 of The Hague Convention on Prevention of
Children Cooperation in respect of Inter-Country Adoption, 1993

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(hereinafter referred to as Hague Adoption Convention).

9. It is denied that the parents of the petitioner, ever, approached
CARA for any NOC. It is contended that the parents of the petitioner
need to make an application for grant of an NOC along with, inter
alia, (i) Home Study Report of the adoptive parents from the Central
Authority of Hamburg in Germany with supporting documents, (ii)
letter from the Central Authority in Germany containing necessary
declaration under Articles 5 17 of the Hague Adoption Convention,

(iii) undertaking from the Central Authority in Germany for post-
adoption follow-up.

10. It is contended that the respondents cannot ensure immigration
clearance for the adopted child to the country of residence of adoptive
parents since the passport and Visa Issuing Authority are not under
the administrative jurisdiction of the respondents.

11. It is contended that the respondents do recognize the adoptions
made under the HAMA Act and the Adoption Order issued by the
Competent Authority, however, CARA is mandatory to issue NOC for
inter-country adoption being the Central Authority of India under the
Hague Adoption Convention for which an application is required to be
made along with the requisite documents.

12. During pendency of the present petition, the petitioner placed
on record a judgment of the Higher Regional Civil Court at Germany
dated 20.02.2017 recognizing the adoption of the petitioner and also

W.P.(C) No.6759 /2016 Page 4 of 26
recognizing the judgment of the Court of District Sessions Judge
(West), Tis Hazari Courts, dated 28.05.2015

13. Identical issue as arising in this petition also arose in Writ
Petition (Civil) No.5718/2015 titled PKH versus Central Adoption
Resource Authority through the Secretary General. By Judgment
dated 18.07.2016, a Coordinate Bench of this Court examined in
detail the various International Conventions as well as the judgments
of the Supreme Court in Lakshmi Kant Pandey versus Union of India,
1984(2) SCC 244 and Anokha (Smt.) versus State of Rajasthan and
Others, (2004) 1 SCC 382, while analysing the Juvenile Justice Act,
2000, the Juvenile Justice (Care and Protection of Children) Rules,
2007 and Guidelines Governing Adoption of Children, 2015.

14. It may be expedient to extract the analysis and reasoning of the
learned Judge in PKH versus Central Adoption Resource Authority
(supra) as the same would have direct applicability in the present case
and applies on all fours. The relevant extract is as follows:-

“***** ***** *****
COURT‟S REASONING

47. Having heard the learned counsel for parties, this
Court is of the view that it is essential to trace the
development of the law relating to child rights and
adoption nationally as well as globally.

GENEVA DECLARATION OF THE RIGHTS OF THE
CHILD, 1924

48. The first major declaration on child rights was the

W.P.(C) No.6759 /2016 Page 5 of 26
“Geneva Declaration of the Rights of the Child” which
was adopted on 26th September, 1924 by the League of
Nations. This Declaration recognized that a child who
cannot fend for himself/herself must be protected and
rehabilitated inasmuch as it stated that “the orphan and
the waif must be sheltered and succored”. This initial
Declaration indicated that it was the society‟s
responsibility to ensure that the interest of a child who
does not have a natural family, is safeguarded.

DECLARATION OF THE RIGHTS OF THE CHILD,
1959

49. On 20th November, 1959, the General Assembly of
the United Nations, by Resolution 1386(XIV) adopted the
„Declaration of the Rights of the Child‟. By this
Declaration, the best interest of the child was sought to
be protected. Importantly, in Principle 9, it was declared
that a child should be protected from “neglect, cruelty
and exploitation”.

DECLARATION ON SOCIAL AND LEGAL
PRINCIPLES RELATING TO THE PROTECTION AND
WELFARE OF CHILDREN, WITH SPECIAL
REFERENCE TO FOSTER PLACEMENT AND
ADOPTION NATIONALLY AND INTERNATIONALLY,
1986

50. On 03rd December, 1986, the General Assembly of
the United Nations in its 95th Plenary Meeting adopted
the „Declaration on Social and Legal Principles relating
to the Protection and Welfare of Children, with Special
Reference to Foster Placement and Adoption Nationally
and Internationally‟. While Articles 13 to 24 dealt with
adoption, Articles 17 to 24 dealt specifically with inter-
country adoption.
Article 13 stated that the objective of
adoption was to ensure that a child who did not have a
natural family is taken care of in a family setting.
Article

W.P.(C) No.6759 /2016 Page 6 of 26
17 stipulated that when the option of placing a child
either in foster care or adoption in the child‟s home
country was unavailable, then inter-country adoption
should be resorted to with the singular objective of
ensuring that a child can grow up in a family.
Article 18
stated that national governments should endeavour to
enact laws for regulating inter-country adoptions.
Article
20 stated that a competent authority must be created in
States in order to oversee inter-country adoptions.
Article 22 stated that inter-country adoptions should only
be made once the child is legally free for adoption and
that all the necessary protocols have been satisfied in
order to facilitate the adoption.
Article 23 stated that the
inter-country adoption should be considered as legally
valid in the two countries which are involved.

CONVENTION ON THE RIGHTS OF THE CHILD,
1989

51. On 20th November, 1989, the General Assembly of
the United Nations adopted the „Convention on the
Rights of the Child‟. This Convention comprehensively
dealt with the rights and entitlements available to a child.
Article 21 of the Convention referred to adoption. It
stipulated that in matters of adoption, the best interest of
the child is the most important factor.
Article 21(a)
stipulated that adoption of the child must be undertaken
through competent authorities in order to preserve the
sanctity of the adoption process.
Article 21(b) dealt with
inter-country adoption. It provided that inter-country
adoption must be allowed when no one is willing to take
care of the child and that in the child‟s home country, an
adoptive family could not be found. Articles 21(c), 21(d)
and 21(e) stipulated that sufficient safeguards must be in
place in order to protect a child who is given in inter-
country adoption. India acceded to this Convention on
11th December, 1992.

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CONVENTION ON PROTECTION OF CHILDREN AND
CO-OPERATION IN RESPECT OF INTER-COUNTRY
ADOPTION, 1993 AT HAGUE

52. The most important international convention on
inter-country adoption is the subsisting „Convention on
Protection of Children and Co- operation in respect of
Inter-Country Adoption‟, which concluded on 29th May,
1993 at The Hague, Netherlands. Its
Article 1 states that
the purpose and aim of the Convention is to preserve the
best interest of the child and to ensure recognition of
inter-country adoption between contracting states.
Articles 4 and 5 provide for the circumstances in which
an adoption can be said to be within the scope of the
Convention.
Article 6(1) provides that in a Contracting
State, a Central Authority must be created to perform the
duties imposed by the Convention. Articles 14 to 21
relate to the manner in which inter-country adoption can
be undertaken and the role of the Central Authority in
that regard.
Article 23 provides that when the competent
authority of a state certifies that the adoption has taken
place as per the Convention, the certification should be
recognized in the other Contracting States. India signed
this Convention on 09th January, 2003 and ratified it on
06th June, 2003.

53. Interestingly, a reading of certain Articles in the
Convention shows that the Convention recognizes the
operation of different laws on adoption within a country.
Article 6(2) provides, inter-alia, that where a State has
more than one system of law which relate to adoptions,
then the Contracting State can create several Central
Authorities for the different systems of law.
Article 28
provides that the Convention does not affect a law which
stipulates that the adoption must occur in the home
country of a child. Also,
Article 37 provides that when a
State has several systems of law which apply to different

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groups, the specific law is to be considered when a
reference is made to the State‟s law.

54. It should be noted that according to the
„Conclusions and Recommendations‟ of the Special
Commission of the practical operation of the Hague
Convention of 29 May 1993 on protection of Children
and Co- operation in Respect of Inter-country Adoption,
one of the recommendations made is that direct and
independent adoptions are incompatible with the
Convention (see Para. 1(g) and Paras. 22, 23, 24).
However, it should be noted that it is only a
recommendation and not binding as the Convention is.

55. At this stage, it is also necessary to take into
account domestic legislative and jurisprudential
developments that took place with regard to inter-country
direct adoptions.

IN 1984, SUPREME COURT DELIVERED A
COMPREHENSIVE AND SEMINAL JUDGMENT IN
THE CASE OF LAKSHMI KANT PANDEY (SUPRA)

56. In 1984, the Supreme Court in the case of Lakshmi
Kant Pandey (supra) delivered a comprehensive and
seminal judgment on the question of inter-country
adoptions.

57. Acting on a letter petition filed by an individual
complaining of questionable practices adopted by
agencies which gave children in inter- country adoptions,
the Supreme Court decided to comprehensively review
the process by which children were given in inter-country
adoptions. The decision begins by noting that there were
two legislative attempts at passing an Adoption Bill
which did not fructify. The first was „The Adoption of
Children Bill, 1972‟ which had been introduced in the
Rajya Sabha but was not passed. The second effort was

W.P.(C) No.6759 /2016 Page 9 of 26
made in 1980, when the „Adoption of Children Bill‟ was
introduced in the Lok Sabha, but which remained
pending.

58. Prior to the Lakshmi Kant Pandey (supra)
judgment, in the absence of any law on adoption, foreign
parents who desired to adopt an Indian child would make
an application under the Guardians and
Wards Act, 1890
to be appointed as the guardian of the child after which
the foreign parents would have the right to take the child
out of the country. To regulate this process, the High
Courts of Bombay, Gujarat and Delhi had even put in
place certain procedural rules.

59. The Supreme Court noted that when the child is
abandoned or when a parent wants to relinquish a child
and give the child up for adoption, then an effort should
be made to find prospective adoptive parents within
India. If no one was willing to adopt such a child in
India, then the child could be given to foreign parents
since it would be wiser to give the abandoned, orphaned
or surrendered child for inter-country adoption rather
than condemning him/her to a life in an orphanage or an
institution without any family support.

60. The Supreme Court also held that since the best
interest of the child has to be protected scrupulously,
safeguards must be put in place to ensure that inter-
country adoptions are not resorted to by persons who
would mistreat the child. Thus, the Supreme Court held
that in order for foreign parents to adopt a child from
India, the parents‟ application for adoption should be
sponsored by a child welfare agency in the parent‟s home
country which agency must prepare a Home Study
Report of the parents. Further, a Child Study Report
should also be prepared. The Supreme Court noted that a
Central Adoption Resource Agency must be created to
oversee the process of inter-country adoption and ensure

W.P.(C) No.6759 /2016 Page 10 of 26
the sanctity of the adoption process is observed. With
regard to the surrender of a child, natural parents who
want to surrender their child to an agency or institution
must receive proper assistance and be made aware of the
consequences of their decision.

61. Significantly, the Supreme Court judgment was
emphatic on the point that the procedural and
substantive safeguards which it laid down were
inapplicable to cases where the foreign parents directly
adopt the child from the natural parents. The Supreme
Court in Lakshmi Kant Pandey (supra) held as under:

“11. We may make it clear at the outset that we
are not concerned here with cases of adoption of
children living with their biological parents, for in
such class of cases, the biological parents would
be the best persons to decide whether to give their
child in adoption to foreign parents. It is only in
those cases where the children sought to be taken
in adoption are destitute or abandoned and are
living in social or child welfare centres that it is
necessary to consider what normative and
procedural safeguards should be forged for
protecting their interest and promoting their
welfare.”

62. The justification provided for this exception was
that when the child is abandoned or destitute or when the
child is living in a welfare centre then there is no one to
protect his/her interests. By contrast, in the case of direct
adoptions, the natural parents still live with the child and
they are best suited to judge whether it would be in the
best interests of the child to be given up for inter-country
adoption. Therefore, the decision is categorical in
holding that inter-country direct adoptions are outside
the ambit of the decision.

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THE ANALYSIS OF THE ACT, 2000, RULES, 2007 AND
GUIDELINES,

63. The Act, 2000 was enacted pursuant to India‟s
obligations under the Convention on the Rights of the
Child. In 2006, this Act was amended. Inter alia,
Section
2(aa) was introduced to define adoption as “the process
through which the adopted child is permanently
separated from his biological parents and become the
legitimate child of his adoptive parents with all the
rights, privileges and responsibilities that are attached to
the relationship.” The provision relating to adoption, and
sub-sections (2) to (4) of
Section 41 were also
substituted in 2006. The amended
Section 41(2) provides
that adoption is a means to rehabilitate a child who is an
orphan or abandoned or surrendered.
Sections 41(3) to
41(5) provide the procedure that has to be adhered to for
the adoption of such a child.

64. The Juvenile Justice (Care and Protection of
Children) Rules, 2007, (for short „Rules, 2007‟)
prescribes the process for adopting a child in
Rule 33.

65. Rule 33 (1) provides that the purpose of adoption
is to ensure that a child is placed in a permanent
substitute family when such a child is not fortunate to
receive the care from his/her natural parents. Rule 33 (2)
provides that the guidelines issued by the Central
Adoption Resource Agency shall govern all adoptions.
Rule 33 (3) pertains to the process to be followed for the
adoption of an orphan or abandoned child.

66. Rule 33 (4) pertains to the adoption of
“surrendered children”. A reading of this rule reveals
that a child who is directly adopted from the natural
parents cannot be considered as a “surrendered child”.
Rule 33 (4)(a) provides that a “surrendered child” is the

W.P.(C) No.6759 /2016 Page 12 of 26
one who has been declared by the Committee i.e. the
Child Welfare Committee („CWC‟) as “surrendered” in
order to also declare the child legally free for adoption.
Further, such “surrender” is contemplated only in
certain compelling conditions, such as a child born out of
a non-consensual relationship [Rule 33(4)(a)(i)]. Rule 33
(4)(b) provides that the CWC must counsel the parents to
see whether they would like to keep the child, and if they
are unwilling to do so, the child may be kept in foster
care (
Section 42, Rules 34, 35, 36) or sponsorship
(
Section 43, Rule 37) may be arranged for him/her. Rule
33 (4)(c) read with Rule 33 (4)(e) provides that a deed of
surrender has to be executed by the parents before the
CWC. Rule 33 (4)(f) provides that after the time period
for reconsidering the surrender of the child elapses [Rule
33 (4)(d)], the surrendered child may be declared legally
free for adoption.

67. Section 41 read with Rule 33 suggests that a
“surrendered child” denotes a child who has been
relinquished by the natural parents and that the parents
seek to irreversibly terminate the parental-child
relationship. Upon the termination of this relationship
which has to be done under the supervision of the CWC,
the child is “surrendered” to the care and custody of the
CWC who is then responsible for the care of the child.

68. The abovementioned provisions make it amply
clear that direct adoption cannot be considered as a
process by which the child becomes a “surrendered
child” because in the case of direct adoption, the natural
parent gives the child in adoption directly to the adoptive
parents without surrendering the child to the CWC
and/or any third entity or agency. In direct adoptions,
unlike the case of surrender, there is no termination of
the parental-child relationship in favour of the CWC or
any third agency which then decides whether or not to
give the child in adoption.

W.P.(C) No.6759 /2016 Page 13 of 26

69. Further, a reading of the Guidelines, 2015, issued
by the Ministry of Women and Child Development on
17th July, 2015 under the Act, 2000 also makes it clear
that a surrendered child is not a child given in direct
adoption. These Guidelines were made pursuant to
Section 41 (3) of Act, 2000 and replace the Guidelines,
2011. In para 2 of the Note to the Guidelines, it is
stipulated that, “These Guidelines shall govern the
adoption procedure of orphan, abandoned and
surrendered children in the country from the date of
notification and shall replace the Guidelines Governing
the Adoption of Children, 2011”.

70. Certain Rules of the Guidelines, 2015 are also
important. Rule 2(2) defines an abandoned child to mean
an “unaccompanied and deserted child who is declared
abandoned by the Child Welfare Committee after due
inquiry”. Rule 2(23) defines an orphan to mean a child
who does not have parents or legal guardian, or whose
parents or legal guardians are unwilling to take care of
the child or are incapable of taking care of the child.
Rule 2(33) defines a surrendered child to mean a “child,
who in the opinion of the Child Welfare Committee, is
relinquished on account of physical, emotional and
social factors beyond the control of the parent or legal
guardian”. A reading of Rule 2(33) reveals that the
definition of a surrendered child cannot apply to cases of
direct adoptions because in inter-country direct
adoptions there is no element of relinquishment to the
CWC, or a third entity or an agency.

71. A holistic reading of the Act, 2000, the Rules, 2007
and the Guidelines, shows that a surrendered child
means a child who is given to the CWC after which it is
only the CWC who has a say with regard to the welfare
of the child. After the surrender, the parents no longer
have any role to play and it is the CWC which decides
the best course of action for the child. Consequently, a

W.P.(C) No.6759 /2016 Page 14 of 26
reading of Act, 2000 read with the Rules, 2007 shows
that neither the Act, 2000 nor the Rules made there-
under cover inter- country direct adoptions.

THE SUPREME COURT‟S INTERPRETATION OF THE
ACT, 2000

72. In Anokha (supra) the Supreme Court specifically
examined the applicability of Guidelines on Adoption to
inter-country direct adoptions and the role of
respondent-CARA. In that case, an Italian couple wished
to adopt an Indian child and to that end filed an
application under the Guardian and
Wards Act, 1890 in
the court of the District Judge at Alwar. The District
Judge rejected the application, inter alia on the ground
that the Central Government had issued Guidelines for
the „Adoption of Indian Children‟ which required an
authorised agency in the adoptive parents‟ home country
to sponsor an adoption application and issue a no-
objection certificate. The District Judge held that in its
absence, the application of the Italian couple had to be
rejected. This decision was affirmed in appeal and the
High Court ruled that in addition to the adoption
application being sponsored by an agency in the foreign
country, CARA must also issue a no-objection certificate.
It is in this context that the matter was carried forward to
the Supreme Court in appeal.

73. The Supreme Court in Anokha (supra) following
the decision of Lakshmi Kant Pandey (supra) held that
inter-country direct adoptions are not amenable to the
rigours of the procedural safeguards since the natural
parents are best positioned to judge what is in the best
interests of the child. Crucially, the Supreme Court
reiterated the distinction which Lakshmi Kant Pandey
(supra) drew between a surrendered child and the giving
of a child in direct adoption by noting that the said
judgment would apply to a child who is surrendered or

W.P.(C) No.6759 /2016 Page 15 of 26
relinquished to an institution and “not to cases where the
child is living with his/her parent/parents and is agreed
to be given in adoption to a particular couple who
happen to be foreigners”.

74. The Supreme Court held that nothing in the Indian
jurisprudence on the subject suggests that the adoption
guidelines such as the one before the Court could apply
to inter-country direct adoptions. The Supreme Court
further held that the need for CARA to furnish an NOC,
the application for adoption needing to be sponsored by
a recognised agency, and the adoption needing to be
undertaken by a recognised Voluntary Coordinating
Agency, only arises when “… there is the impersonalized
attention of a placement authority…”.

75. The Supreme Court reiterated the conclusion that
the extant adoption guidelines are inapplicable to cases
of inter-country direct adoptions. However, it stated that
when the adoptive parents make an application under the
Guardian and
Wards Act to be appointed as the
guardians of the child, the Court must be satisfied that
the adoption is voluntary, that the consent of the natural
parents to give up the child for adoption has not been
obtained through questionable means, and that the
adoptive parents must present evidence as to their
overall suitability to adopt a child.

76. In conclusion, the Supreme Court held in Anokha
case (supra) that since there was sufficient material on
record which attested to the suitability of the adoptive
parents to take care of the child, the Italian couple were
appointed as the child‟s guardian.

77. From a reading of Anokha (supra), it is clear that
the Supreme Court declared that the extant Guidelines on
adoption as they existed at that time would be
inapplicable to cases of inter-country direct adoptions

W.P.(C) No.6759 /2016 Page 16 of 26
and that CARA would have no jurisdiction over such
adoptions. However, it held that it otherwise be
established that the inter-country direct adoption has
taken place in a bona fide manner and that the adoptive
parents are suitable for taking care of the child.
DELHI HIGH COURT‟S INTERPRETATION OF ACT,
2000

78. The question of whether inter-country direct
adoptions are amenable to the jurisdiction of CARA has
also been examined by this Court.

79. In Dr. Jaswinder Singh Bains v. CARA, W.P (C)
8755/2011 decided on 13th February, 2012, the
Petitioners, had directly adopted a child from a couple
and also executed a duly registered adoption deed. The
Civil Judge (Sr. Division), Patiala issued a declaratory
decree to the effect that the Petitioner was the guardian
of the child under
Section 7 of the Guardians and Wards
Act. Since the Petitioners resided in Canada, they wished
to take the child with them, but the Family Services of
Greater Vancouver sought a NOC from CARA. Since
CARA did not respond to the Petitioner‟s request for a
NOC, the parents filed a writ petition against CARA.

80. Following Lakshmi Kant Pandey (supra) and
Anokha (supra), the High Court ruled that when inter-
country adoptions are made directly from natural
parents, a NOC from CARA was not required, since the
procedural rules were inapplicable to cases of direct
voluntary adoptions.

81. In Swaranjit Kaur (supra) the Petitioners therein
adopted a child, executed an adoption deed and obtained
a declaratory judgment from the competent civil court. In
the said case, a NOC had been issued by CARA and since
the Petitioners wanted to take the child back to Alberta,

W.P.(C) No.6759 /2016 Page 17 of 26
Canada, the Alberta Government inquired from CARA
India as to the authenticity of the NOC that had been
issued. Meanwhile, the Canadian Immigration
Department wrote to the Petitioner stating that CARA
had informed the Immigration Department that the NOC
in question had not been issued by them. The Petitioners
filed a writ petition under
Article 226 in the Delhi High
Court after they failed to obtain a response from CARA
on the issue of the NOC.

82. This Court held in the said judgment that this was
a case of inter- country direct adoption by a relative and
following the decision of Jaswinder Singh Bains (supra)
respondent-CARA had no role whatsoever to play with
respect to direct adoptions.

83. In view of aforesaid binding judgments of the Apex
Court and this Court, the judgment of the Madras High
Court in Mr. Tim Cecil and Mrs. Steffi Cecil (supra)
offers no assistance to the respondent-CARA.
APPLICABILITY AND ANALYSIS OF ACT, 2015

84. This Court is in agreement with the submission of
the learned Amicus Curiae that as the adoption deed in
the present case had been executed before the Act, 2015
came into force, it would be governed by the Act, 2000
and not by the Act, 2015.

85. Since arguments were advanced with regard to the
scope and interpretation of Act, 2015, this Court clarifies
that though there is some ambiguity as to whether the
Act, 2015, applies to inter-country direct adoptions, yet it
is of the opinion that the scope of
Section 60 of the Act,
2015, should be expanded to cover all forms of inter-
country direct adoptions. This interpretation would
advance the best interest of the child whose family wishes
to give him/her in adoption and also ensure that the

W.P.(C) No.6759 /2016 Page 18 of 26
sanctity of the adoption process is respected and the best
interest of the child is scrupulously safeguarded. This
Court may mention that in exercise of its writ
jurisdiction, it has the power to expansively interpret a
provision of a statute in order to achieve the objects and
reasons which the law seeks to achieve and to reach
injustice wherever it is found. [See Dwarka Nath Vs.
ITO, (1965) SCR 536]

86. The respondent-CARA should ensure that the
applications for approval/NOC are processed in a child
friendly manner and that too, in a strict time frame. After
all, incorporation of safeguards should not lead to
harassment and delay.

87. This Court suggests that the respondent-CARA
should consider the option of appointing a panel of
Psychologists, Lawyers as well as NGOs in all the States
so that the Child Study Report and Home Study Reports
in the case of domestic adoptions, if applicable, in India
are prepared scientifically in a time bound manner. The
local police as well as Anti Trafficking Unit of the
Ministry of Home Affairs should be asked to give their
response to the Adoption application within a strict time
frame. If response is not received from
statutory/government authority within the time-frame
prescribed, it should be presumed that said authority has
no objection to the adoption.”

15. After analysing the domestic laws and various international
conventions and the Judgments of the Supreme Court, Learned judge
reached the following conclusion:

“91. The survey of the domestic law and international
conventions leads to the following conclusions:
a. As the adoption deed in the present case has been

W.P.(C) No.6759 /2016 Page 19 of 26
executed under HAMA, 1956, before the Act, 2015
came into force and the adoption deed has been
held to be legal, valid and genuine by the
Additional Civil Judge (Senior Division), Zira in a
civil suit filed by the adoptive parents against the
natural mother, the adoption in the present case is
governed by the Act, 2000 and not by Act, 2015.
b. The Act, 2000 read with the Rules, 2007 and the
Guidelines, 2015 expressly lays down a procedure
for adoption only in relation to a child who is an
orphan or abandoned or surrendered, and does
not cover inter-country direct adoption.

c. The Act, 2000 read with the Rules, 2007 and the
Guidelines, 2015 provides that a child is
surrendered when the parents wish to relinquish
him/her to the CWC and a formal act takes place
by which the child is surrendered by the natural
parents to the CWC. Once the surrender is
complete, the parents have no role in the future of
the child and the CWC alone decides the best
course for the child‟s future before the child is
adopted.

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

e. The Supreme Court in Lakshmi Kant Pandey
(supra) as well as Anokha (supra) and the High
Court of Delhi in Dr. Jaswinder Singh Bains
(supra) and Swaranjit Kaur (supra) have
categorically and conclusively held that all inter-
country direct adoptions are outside the scope of
the rules set out for adoptions under the Act, 2000
and the Rules/Guidelines framed there-under.

W.P.(C) No.6759 /2016 Page 20 of 26

f. In view of the aforesaid binding precedents, there
is no scope for incorporation of the concept of
parens patriae in inter-country direct adoption
cases under the Act, 2000, specially when the
adoption deed has been declared to be legal, valid,
genuine and binding by a competent court.

g. Rule 26 of the Guidelines, 2011 is a procedural
provision and it does not advance the case of the
respondent-CARA.

h. In view of CARA, Canada‟s approval for adoption
and its favourable home study report as well as the
decree of declaration passed by Additional Civil
Judge (Senior Division), Zira, this Court is of the
opinion that the requirements of Articles 5 and 17
of The Hague Convention are satisfied in the
present case.

i. Consequently, in cases of inter-country direct
adoption like the present case, NOC from
respondent- CARA is not required under the Act,
2000 and the Guidelines, 2011.

j. The Regional Passport Officer/MEA cannot insist
on issuance of an NOC by respondent-CARA
before processing the petitioner‟s application for
issuing a Passport to the adopted child.”

16. At this juncture, it may also be expedient to refer to the
judgment of the Court of the District Sessions Judge (West) dated
28.05.2015, with regard to the adoption of the petitioner. The relevant
portion reads as follows:-

“Petitioner No.1- Dalip Kumar Arora appeared in
the witness box as PW1 and he also deposed on behalf of

W.P.(C) No.6759 /2016 Page 21 of 26
his wife in view of the General Power of Attorney Ex.PW-
1/1, executed by his wife in his favour attested by
Consulate General of India, Hamburg and carrying the
seal stamp of the Consulate as well as the signatures
of Vice Council of the Consulate General of India,
Hamburg. PW-1 was executed in his presence and his
wife signed at point E on each page. He further deposed
that the present petition was also signed by her in his
presence expressing her keenness to adopt Master
Divyansh Arora.

PW-1 deposed that petitioners do not have their
own child due to medical problems and Master Divyansh
Arora born on 25.01.2004 has been adopted by them vide
Adoption Deed dated 27.01.2015 Ex.RW-2/2. He further
deposed that the adoption/godi ceremony was performed
on 26.01.2015 in presence of their near and dear.

Further, it is deposed that after adoption of the
child, his parentage in his birth certificate was changed.
His initial birth certificate, showing the respondents as
his parents is Ex.RW2/1 and his birth certificate, showing
petitioners as his parents is Ex.PW1/2. His Aadhar Card
with changed parentage is Ex.PW-1/4.

PW-1 further deposed that he is earning 25,000/-
Euro annually and he is having good financial status and
that he and his wife will treat Master Divyansh Arora
born on 25.01.2004 as their own child and will give him
best environment and education and will take care of all
his needs.

Respondent No.1 – Shri Raj Kumar Arora and
respondent No.2 – Smt Neeru Arora have been examined
as RW-1 RW-2 respectively. They deposed that they
are biological parents of Master Divyansh Arora born
on 25.01.2004. The copy of the Adhaar Card of
respondent No.1 is Ex.RW-1/1. The copy of initial birth

W.P.(C) No.6759 /2016 Page 22 of 26
certificate of Master Divyansh Arora born on 25.01.2004
is Ex.RW-2/1.

It was further deposed by the respondents that they
were blessed with three children i.e. elder son Vishesh
Arora born on 20.03.2002, younger son Master Divyansh
Arora born on 25.01.2004 and a daughter Luvya Arora
born on 07.10.2009.

They further deposed that the petitioners are
Bhaiya and Bhabhi of respondent No.1 who were
married in the year 2008 and did not have their own
child due to medical problems. Accordingly, Master
Divyansh Arora born on 25.01.2004 was adopted by
them and formal Adoption Deed dated 27.01.2015
Ex.RW-2/2 was executed and a godi ceremony was
performed at their residence on 26.01.2015 as per Hindu
rituals and ceremonies and consequent upon adoption by
the petitioners, the birth certificate of the child was got
issued and the names of the respondents i.e. the natural
and biological parents were substituted with the names of
the adopted parents, i.e. the petitioners.

They stated that the reason for giving Master
Divyansh Arora born on 25.01.2004 in adoption to the
petitioners is that from his early childhood, the child is
too much attached with them and he has been living with
them whenever they stayed in India.

Both the respondents who are natural and
biological parents of Master Divyansh Arora stated that
the child is being looked after by the petitioners as their
own child.

Therefore, as per facts of the case, petitioner No.1
is the real brother of respondent No.1 and since
petitioners could not have their own child due to medical
reasons, Master Divyansh Arora born on 25.01.2004,

W.P.(C) No.6759 /2016 Page 23 of 26
the second child of the respondents, was given in
adoption to the petitioners vide Adoption Deed dated
27.01.2015 Ex.RW-2/2.

Master Divyansh Arora has been examined by the
Court in-camera in chamber, who in response to Court
queries, expressed that he loves his Taya and Tayi, who
are now his parents, and they too love him and in
response to another Court query that whether he will
miss his siblings, he answered that he can talk to them on
phone and he expressed his desire to settle with the
petitioners in Germany for the sake of his education.
Even in the Court, it is observed that the child was
standing close to petitioner No.1 in presence of the
respondents.

In view of the testimony of the respondents, i.e. the
natural and biological parents of Master Divyansh Arora
and the testimony of petitioner No.1 and the examination
of the child-in-camera in the chamber, the present
petition is allowed and the petitioners are permitted to
adopt Master Divyansh Arora born on 25.01.2004 , the
second child of the respondents.

The requisite certificate be issued in favour of Shri
Dalip Kumar Arora and Smt Vaishali Arora, the
petitioners herein for adopting Master Divyansh Arora
on their furnishing the necessary undertaking that they
will take care of Master Divyansh Arora as their own
child and that Master Divyansh Arora will succeed to all
their properties and estate.”

17. Further, it may be seen that the Higher Regional Civil Court at
Germany by its order dated 20.02.2017 has also recognized the
present adoption and honoured the judgment of the Court of District
Sessions Judge (West), Tis Hazari Courts.

W.P.(C) No.6759 /2016 Page 24 of 26

18. As noticed by the learned Single Judge in PKH versus Central
Adoption Resource Authority(supra), delay in adoption would mean
that the minor has to live with uncertainty and insecurity. The
adoption ceremonies were performed on 26.01.2015 and the adoption
deed was executed on 27.01.2015 and for over two and a half years,
the minor child is living with uncertainty and till date, has not been
integrated with his adoptive family in the new country of residence.
Though in the case of PKH versus Central Adoption Resource
Authority (supra), there was also a home study report from Canada,
however in view of the conclusion reached by the learned judge as
noticed in para 91 of the said judgment (extracted hereinabove), it
would not be required for the present case more so in view of the fact
that the Higher Regional Civil Court at Germany by its order dated
20.02.2017 has also recognized the present adoption.

19. In view of the judgment dated 28.05.2015 of the Competent
Court in a Guardianship Petition No.01/2015, the petitioner is now
lawfully adopted, the said judgment has attained finality and even if
the petitioner was to wish, the petitioner cannot re-unite with his
biological parents. The Petitioner’s birth certificate and his Adhaar
card has already been modified and the names of his adoptive parents
have already been substituted therein in place of his biological
parents. Further, it is not a case of adoption between strangers. The
present is a case of adoption between family members. The adoptive
parents being the real elder brother of the biological father and the

W.P.(C) No.6759 /2016 Page 25 of 26
elder brother’s wife. The adoption, being in accordance with the
HAMA Act, is complete. Accordingly, all relations between the
petitioner and his natural family are severed. If the petitioner is not
permitted to unite with his adoptive family, the petitioner would be in
a very precarious position, where his relations with the biological
parents have severed and the relations with his adoptive family are not
permitted to be joined. It would cause grave injustice to a child.

20. In view of the above, the present petition is disposed of with a
direction to the respondent – CARA to grant, within a period of two
weeks, a No Objection Certificate (NOC) to the adoptive parents of
the petitioner for taking the petitioner to Germany. The Ministry of
External Affairs/Regional Passport Officer is also directed to issue a
passport to the petitioner within a period of two weeks thereafter.

21. The petition is accordingly allowed in the above terms.

22. Dasti under signatures of Court Master.

SANJEEV SACHDEVA, J
NOVEMBER 14, 2017
‘Sn’

W.P.(C) No.6759 /2016 Page 26 of 26

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