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Amit Ahuja vs Central Adoption Resource … on 5 July, 2021

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IN THE COURT OF MS. SUNENA SHARMA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI

CS no.154 of 2021
Date of Institution:18.03.2021
Arguments concluded : 05.07.2021
Date of decision :05.07.2021

1. Amit Ahuja
s/o Late Sh. Ramesh Ahuja
r/o 5055, Rockhaven
Dr Clarence, New York-14031
And also at
6026, Wexford Manor,
Clarence Centre, New York-14032
USA

Presently at
Ville E, Empire Estate, Mehrauli-Gurgaon Road
Sultanpur, New Delhi110030

2. Baby Saira Ahuja
d/o Sh. Amit Ahuja
r/o Ville E, Empire Estate,
Mehrauli-Gurgaon Road, Sultanpur,
New Delhi 110030
…………. Plaintiffs

VERSUS

1. Central Adoption Resource Authority
West Block-8, Wing-2, First Floor,
Ramakrishna Puram, New Delhi-110066

2. Union of India
Through Ministry of Women and Child Development
Shastri Bhawan, New Delhi-110001

…………… Defendants
CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 1 of 20

Digitally signed
SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.05
16:52:59 +0530
JUDGMENT

1. Vide this judgment, I shall dispose of the suit filed by the
plaintiffs against defendants for seeking relief of mandatory injunction
and declaration. Suit was initially filed against Central Adoption
Resource Authority (hereinafter referred as ‘CARA’) but later on,
plaintiff impleaded Union of India through Ministry of Women and Child
Development as defendant no.2. Defendant no.2 has been impleaded
only as proforma defendant and no relief has been sought against
defendant no.2.

2. Tersely put the facts of the plaintiff’s case are that plaintiff
no.1, a Hindu male of 43 years of age is the adoptive father of 7
months old girl child namely Siara i.e. plaintiff no.2. Plaintiff no.2 has
been adopted by plaintiff no.1 from her biological parents namely Sh.
Rajesh Kashyap (father) and Mrs. Phoolmati (mother) vide registered
adoption deed dated 13.01.2021.

3. As per plaint, plaintiff is an Overseas Citizen India
(hereinafter referred as ‘OCI’) card-holder and his mother resides in
India at Villa E, Empire Estate, MG road, Sultanpur, New Delhi. Plaintiff
no.1 and his wife were married on 29.08.2014. The wife of plaintiff
no.1 could not conceive despite various procedures recommended by
doctors in US. Initially, plaintiff no.1, who is OCI card holder and
resides in US had applied for adoption to an adoption agency in US
and for that purpose, he also got Home Study conducted where
plaintiff no.1 and his wife were found fit for adopting a child.

4. It is averred further that Sh. Rajesh Kashyap who was
working as a driver of mother of plaintiff no.1, already had three
children and when his wife conceived 4 th time, the couple decided to
give 4th child to plaintiff no.1 for the better future and good upbringing

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 2 of 20

Digitally signed
SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.05
16:53:15 +0530
of said child. The couple for being employed with plaintiff no.1’s
mother for quite long time, was fully aware of bonafide and capability
of plaintiff no.1 to give better future to their child. On 10.12.2020,
natural mother Mrs. Phoolmati wife of Sh. Rajesh Kashyap delivered a
girl child i.e. plaintiff no.2 and immediately thereafter, DATTA HOMAN
Ceremony for giving and taking child in adoption, of which
photographs have also been placed on record, were performed and
plaintiff no.2 baby Siara was given in adoption to plaintiff no.1 by her
biological parents. Thereafter, an adoption deed was executed and
registered on 13.01.2021 in the office of Sub Registrar-I, Delhi vide
registration no.314 in book no.3, Volume 1765 on page no.1 to 5 in
accordance with the provisions of Adoption and
Maintenance Act, 1965
(hereinafter referred as HAMA). After execution of said adoption deed,
plaintiff no.1 also applied for birth certificate of plaintiff no.2 and birth
certificate reflecting plaintiff no.1 as father of baby Saira i.e plaintiff no
2, was issued in his favour. In order to take child to New York, USA
where plaintiff no.1 resides with his wife, plaintiff no.1 applied for
passport of plaintiff no.2 but the application had to be withdrawn as
plaintiff no.1 was orally informed that NOC from CARA i.e. defendant
no.1 herein and recognition of adoption by CARA as valid adoption is
necessary for obtaining the passport for the child. Thereafter, plaintiff
no.1 visited office of CARA for said purpose where he met Ms. Nidhi
and Sanjay Basalia, the officials of CARA, who refused to issue NOC or
to recognize adoption in favor of plaintiff no.1 despite adoption having
been done vide a registered Deed of Adoption in accordance with the
provisions of HAMA.

5. The plaint further avers that in view of section 56(3) of
Juvenile Justice (Care and
Protection of Children) Act, 2015
(hereinafter referred as ‘JJ Act’), the provisions of JJ Act do not apply

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 3 of 20
Digitally signed
SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.05
16:53:30 +0530
on adoption made under HAMA and in view thereof, even rules framed
under power of section 56 of JJ Act are also not applicable to an
adoption made under HAMA. It is further averred that although
adoption under HAMA is not governed by JJ Act but CARA is the only
authority which is recognized internationally and is required to
recognize inter country adoption for them to be internationally
recognized as valid. Even for international travel or passport or other
formalities for taking any adopted child to some other country, CARA is
required to recognize the adoption/adoption deed as valid/validly
executed. In view of said reasons only, Hon’ble Punjab and Haryana
Court in case titled as ‘Jasmine Kaur Vs. UOI ors’ in similar set of
circumstances as of the present case, issued directions against CARA
to issue NOC in favour of adoptive parents for taking child to country
of their abode.

6. It is further averred in the plaint that each day delay in
uniting plaintiff no.2 with her adoptive parents living in United States
is causing mental and physical pain and agony to both the adopted
child as well as her adoptive parents.

7. The cause of action to file the present suit is stated to have
arisen when the child was adopted on 11.01.2021; on 13.01.2021,
when the adoption deed was executed and registered; on 05.03.2021,
when birth certificate in the name of adoptive father was issued by
MCD; on the date when passport officer refused to issue passport in
favour of minor child i.e. plaintiff no.2 in absence of NOC from CARA
and lastly, when officials of CARA refused to grant required NOC. As
office of Defendant no.1 CARA is located in area falling under the
territorial jurisdiction of this court, this court is stated to have been
vested with the jurisdiction to try and entertain the present suit.

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 4 of 20
Digitally signed
by SUNENA
SUNENA SHARMA
SHARMA Date:
2021.07.05
16:53:48 +0530

8. Plaintiff has valued the suit at Rs.31,10,130/-upon which
requisite court fees has been paid. In the prayer clause, plaintiffs have
sought decree of mandatory injunction in their favour and against
defendants thereby seeking directions against defendants to
accept/recognize registered adoption deed dated 13.01.21 and not to
raise any issue on the question of legality and validity of adoption of
plaintiff no.2 by plaintiff no.1. Plaintiffs have also sought for
declaration in their favour and against defendants thereby, declaring
adoption of child namely Siara Ahuja by plaintiff no.1 as contained in
registered adoption deed dated 13.01.21 as valid and further that
CARA has recognized the same.

9. Pursuant to summons of the suit and notice of
miscellaneous applications moved alongwith plaint, defendant no.1
caused appearance in the matter on 23.03.2021 through Senior
Professional (Legal) Ms. Shweta Kadyan. On 05.04.2021, counsel Sh.
Anmol Singh, advocate appeared on behalf of defendants and filed his
memo of appearance and sought time to file written statement.
Subsequently, counsel also filed BTF with regard to his appointment in
this case by CARA. Record further reveals that later on, plaintiff moved
an application u/o 1 Rule 10 CPC for impleadment of Union of India
through Ministry of Women and Child Development as proforma
defendant and said application was allowed by the court vide order
dated 08.06.2021. Sh. Anmol, advocate appearing as counsel for
CARA recorded his appearance for defendant no.2 as well by
submitting that CARA is statutory body working under Ministry of
Women and Child Development and he has been authorized to appear
even for defendant no.2 vide same BTF which is already on record.

10. As per record, repeated opportunities were given to
defendants to file written statement but despite that no written

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 5 of 20
Digitally signed
by SUNENA
SUNENA SHARMA
SHARMA Date:

2021.07.05
16:54:11 +0530
statement came to be filed on record on behalf of defendants, as a
consequence defence of defendants was struck off vide order dated
03.07.2021.

11. After the defence of defendants was struck of, counsel for
plaintiffs submitted that in absence of any defence from opposite side,
suit was liable to be decreed u/o 8 rule 10 CPC but, as a abundant
caution, plaintiff also placed on record the evidentiary affidavit of the
plaintiff no.1 Sh. Amit Ahuja and that of biological father of the child
namely Sh. Rajesh Kumar Kashyap. Record further reveals that said
affidavits were duly tendered by both the said persons. The
evidentiary affidavit of PW1 which is available on record as Ex.PW1/A
has been attested by oath commissioner whereas, second affidavit
Ex.PW1/B is only a signed scanned copy of the affidavit without any
attestation. In both the affidavits, the plaintiff has more or less
reiterated the contents of the plaint on solemn affirmation which are
not repeated herein for sake of brevity. In the tendering statement
plaintiff no.1/PW1 has also relied upon following documents:-

S.No. DOCUMENTS EXHIBITS
1. Affidavit dated Ex. PW1/A
12.04.2021(attested)
2. Affidavit dated Ex.PW1/B
03.07.2021(unattested)
3. Photographs of marriage Ex.PW1/1 (colly)
3. Copy of Overseas Citizen of India Mark A
card
4. Copy of certificate of marriage Mark B
with Mrs. Laura Lee Boeckel
Ahuja dated 03.09.2014
bearing serial no.74

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 6 of 20

Digitally signed by
SUNENA SUNENA SHARMA

SHARMA Date: 2021.07.05
16:54:25 +0530
5. Original Special Power of Ex.PW1/2
Attorney in favour of Plaintiff
no.1.
6. Notarized copy of the registered Ex.PW1/3 (colly)
Adoption Deed dated 13.01.2021
(OSR)
alongwith photographs of
Adoption ceremony
7. Coloured copy of Birth Certificate Ex.PW1/4
bearing registration no.MCDOLIR-
0121-120017 of plaintiff no.2
Siara Ahuja showing plaintiff no.1
as the father of plaintiff no.2

8. Coloured copy of Adhar Card of Ex.PW1/5 (OSR)
minor child Saira Ahuja plaintiff
no.2 bearing no.352844267280

9. Copy of latest home study report Mark C

10. Affidavit of PW2 dated Ex.PW2/A
23.06.2021

12. I have heard both the counsels and perused the entire
record including the written submissions/arguments placed on record
by the counsel for defendants.

13. In the evidentiary affidavit Ex.PW1/A, plaintiff no.1 Sh.
Amit Ahuja has deposed more or less on the lines of contents of the
plaint. The second affidavit Ex.PW1/B cannot be considered for want of
attestation. However, the court shall consider the afore-mentioned
documents tendered by the plaintiff no.1 by joining the court
proceedings through video conference. The biological father of the
child PW2 Sh. Rajesh Kashyap has corroborated the plaintiff no. 1’s
version to the effect that PW1 and his wife are the biological parents of

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 7 of 20
Digitally signed
SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.05
16:54:44 +0530
the child (plaintiff no.2) who was born to them on 10.12.2020 and said
child was given in adoption to plaintiff no.1 vide adoption deed
Ex.PW1/3 on which both PW1 and PW2 have identified their
signatures. PW2 has also identified the signatures of his wife on
Ex.PW1/3. The hearings of the court were conducted through VC in the
light of circular of Hon’ble High Court vide office order no.372/RG/DHC
dated 28.06.2021 and plaintiff no.1 and one of his counsel had joined
the proceedings through VC whereas, plaintiff’s other counsel namely
Sh. Vishal Gohri and PW2 Rajesh Kashyap were physically present in
the court. The affidavit of PW2 was tendered physically in the court.
Affidavit of PW1 was tendered through VC and signed scanned copy of
tendering statement was filed on court record by his counsel.

14. In absence of any written statement from the defendant’s
side, the case of the plaintiffs has gone unrebutted on record. The
depositions of both the witnesses contained in their respective
affidavits have also gone unrebutted and uncontroverted as the
counsel appearing for the defendants did not prefer to cross-examine
them.

15. As per plaintiff’s case, plaintiff no.1 who is an OIC card-
holder has adopted baby Siara i.e plaintiff no.2 born on 10.12.2020
from her biological parents on 11.01.2021. DATTA Homan ceremony
was carried out for giving and taking of child in adoption and
photographs of said ceremony Ex.PW1/1(colly) in that regard have
also been placed on record. The adoption deed was executed and got
registered on 13.01.2021 in presence of Sub Registrar-I in accordance
of Hindu Adoption and
Maintenance Act, 1965. Plaintiff no1’s wife Ms.
Laura Lee Boaeckel Ahuja has given her consent for adoption of child
and also authorized him i.e. plaintiff no.1 vide SPA Ex.PW1/2 to
complete the formalities in that regard. But it is pertinent to note that

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 8 of Digitally
20 signed
by SUNENA
SUNENA SHARMA
SHARMA Date:

2021.07.05
16:55:00 +0530
SPA was neither attested in accordance with law nor it was executed
on stamp paper.

16. Since, both the plaintiff no.1 and his wife are residents of
New York, USA, the plaintiff no.1 had applied passport for baby Saira
to take her to New York but passport authorities asked him to first
obtain NOC from CARA. Accordingly, plaintiff approached CARA on
20.01.2021 for NOC but the, officials of CARA refused to issue NOC or
to recognize the adoption despite the adoption being carried out
through registered adoption deed Ex.PW1/3 in accordance with
provisions of HAMA.

17. It has been argued on behalf of plaintiffs that although
adoption under HAMA is not governed by provision of Juvenile Justice
(Care and
Protection Act), 2015 yet, CARA is the only authority which
is internationally recognized and recognition of any adoption through
CARA is mandatory for any adoption to be accepted valid
internationally. It is further argued that in similar set of circumstances,
Hon’ble Punjab Haryana High Court in case titled as ‘Jasmeet Kaur
Vs. Union of India’, 2020 SCC online P H 1056, had given
directions to CARA to issue NOC in favour of adoptive parents for
taking adopted child to country of their abode. Counsel for plaintiffs’
further submitted that even in said case, child was adopted by NRI
couple from biological parents living in India and it was held by
Hon’ble High Court that in such like adoption by biological parents of
adopted child in favour of their known persons or relatives, the
provisions of section of 68 of JJ Act, 2015 and Rules framed there-
under would not apply.

18. The arguments of the counsel for defendants is also on the
same lines that adoption carried under HAMA is not governed by
provisions of JJ Act, 2015 and since CARA is a statutory body

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 9 of 20
Digitally signed
by SUNENA
SUNENA SHARMA
SHARMA Date:

2021.07.05
16:55:12 +0530
constituted under the provisions of J.J Act, 2015, it is not legally
obliged to issue NOC in respect of adoption made under HAMA. It is
further submitted that afore-mentioned judgment of Jasmine
Kaur(supra) relied upon by the plaintiff has been challenged by CARA.
The counsel has, however, conceded that there was no stay against
the operation of said judgment by any superior court nor the counsel
was able to tell where the appeal was pending against said judgment
nor he gave any particulars of said appeal.

19. Before adverting to respective contentions of parties, it is
pertinent to note that adoption of plaintiff no.2 from biological parents
to adoptive parent i.e. plaintiff no.1 has taken place through a
registered adoption deed dated 13.01.2021 which has been proved on
record as Ex.PW1/3. Further, adoptive parent is a married Hindu male
who has adopted the child with the consent of his wife. As per
provisions of section 7 of HAMA, in case of a married male, consent of
wife is required unless the wife has completely and finally renounced
the world or has ceased to be a Hindu. As per section 16 of HAMA, in
respect of a registered adoption deed produced before any court,
purporting to record an adoption made and signed by the person
giving and the person taking the child in adoption, the court shall draw
a presumption that the adoption has been made in compliance of
HAMA unless and until it is disproved.

20. In the instant case, on account of non-filing of written
statement, the defence of defendants was struck off and as a
consequence, plaintiff’s case with regard to adoption of the child vide
aforementioned registered Deed of Adoption Ex.PW1/3 has remained
unrebutted and therefore, presumption of section 16 of HAMA is
liable to be drawn in favour of plaintiffs regarding adoption having
been made in compliance with provisions of the HAMA. The adoption

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AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 10 of 20
Digitally signed
SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.05
16:55:22 +0530
deed Ex.PW1/3 was duly registered on 13.01.2021 with Sub Registrar
office vide registration no.314 in book no.3, Volume 1765 on page
no.1 to 5 in favour of plaintiff no.1 and same has been duly signed by
both the adoptive parent i.e. plaintiff no.1/PW1 as well as the
biological parents of the child and both plaintiff no.1 and biological
father PW2 have duly identified their respective signatures on the
same.

21. The court even otherwise has checked the validity of
adoption in the light of various provisions of HAMA. The provision of
HAMA relevant in relation to the present case are
section 7, 9 (1), 9
(2), 10 and
section 11. The contents of plaint which are supported
with affidavit of plaintiff, of the adoption deed ExPW1/3 and the
deposition of PW1 PW2 in their respective affidavits Ex.PW1/ A and
Ex.PW2/A clearly shows that adoption has been made in accordance
with all the aforementioned provisions of law. Even otherwise, as
already noted above, there is a presumption of validity of adoption
attached to a registered adoption deed signed by the parents giving
and taking in adoption. Hence, there is no reason for this court to
doubt the legal validity of said adoption carried out vide adoption deed
Ex.PW1/3.

22. Now, since the adoption is held to be in accordance with
provisions of HAMA, next question which falls for consideration is
whether CARA is justified in not recognizing the adoption deed or in
refusing to grant NOC to plaintiff no.1.

23. Counsel for plaintiffs has drawn my attention to Passport
Act, 1967, Passport manual 2016 and Passport Rules 1980. As per
Section 5.2 of Chapter X of Passport Manual 2016, following
documents are required for issuance of passport for inter country
adoption case.

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 11 ofDigitally
20 signed
by SUNENA
SUNENA SHARMA
SHARMA Date:
2021.07.05
16:55:33 +0530
“1. No objection Certificate from CARA.
2. Court order on adoption; and

3. all other documents required for issuance of
passport to minor children.”

24. It is important to note that Hon’ble Punjab and Haryana
High court has also referred to provisions of
Passport Act, 1967,
Passport Manual, 2016 and Passport Rules, 1980, which make it
mandatory for foreign parents to file NOC from CARA for issuance of
passport for their adopted minor child.

25. In the above referred judgment in Jasmine Kaur (supra)
Hon’ble High Court had a detailed discussion on the provision of JJ
Act, 2015 and the Rules and Regulations framed there-under and also
referred to the previous judgments of Hon’ble Apex court and different
High Courts and came to the conclusion that JJ Act, 2015 would not
apply to inter country adoption of children which are being directly
made by biological parents to their relatives or known persons under
HAMA. The relevant portion of the judgment is reproduced as under:

“20. The Juvenile Justice (Care and Protection of Children) Act,
2015 has introduced the concepts of adoption child from the
Hague Convention on protection of Children and Cooperative in
respect of inter-country Adoption, 1993 which were missing in
the previous Act of 2000. The amended Act also made the
adoption process of orphaned, abandoned and surrendered
children only. Thereafter, Central Adoption Resource Authority
(CARA) respondent no.3, which is a statutory Authority too was
established only under Section 68 of the JJ Act, 2015, which is
applicable to special children.

21. Thereafter, the adoption Regulations 2017 were farmed by
the Ministry of Women Child Development vide notification
dated 04.01.2017 and that too was once again in exercise of the
powers under
section 68 read with clause (3) of Section 2 of the
Juvenile Justice (Care and
Protection of Children) Act 2015 and
as stated above, the JJ Act, 2015 pertains only to special
children as mentioned in
Section 1 (4) of the J.J Act, 2015 and
not to children being directly adopted. The fact that the said Act
is not applicable even to the inter-country adoption of children
adopted directly, from biological parents is also evident from the
judgment rendered by the Supreme Court in Lakshmi Kant
CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 12 of 20 signed
Digitally
by SUNENA
SUNENA SHARMA
SHARMA Date:

2021.07.05
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Pandey vs Union of India, (1984) 2 SCC 244. The Supreme
Court in the said case, while reviewing the inter-country
adoption, held in para 11 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.”

22. Thereafter, the Apex court in the case of Anokha (Smt) Vs.
State of Rajasthan, (2004) 1 SCC 382 while analyzing the
Juvenile Justice (Care and
Protection of Children) Act, 2000 held
that inter-country direct options are not amenable to the
rigorous procedure and safeguards since the natural parents are
the best to judge what is the best interest of the child and held
in no uncertain terms that where the child is living with her
biological parents and who seek to give their child in adoption to
a foreign couple, who are known to them, need not to follow the
guidelines prescribed for adoption of Indian children being
applicable, only to children who are orphans and destitute or
whose biological parents are not traceable or relinquished or
surrendered their children for adoption.”

26. But after having laid down the above preposition, the
Hon’ble High Court, in the light of provision of
Passport Act, 1967,
Passport Rules 1980 and Passport Manuals 2016, legality of which
was not challenged before the High Court, was pleased to issue
directions against CARA to issue NOC in favour of adoptive parents.
Following are the relevant paras:

“39. From the above, it is evident that ‘Indian parents’ are
not required to provide the ‘No objection Certificate’ from
CARA. The requirement is for foreign parents. Although, the
court is of the view that an Indian or OCI with a British
Passport, i.e. with British Citizenship will not loose their
identity of being an Indian parent or Indian especially when
they are called ‘Overseas Citizen of India’ nevertheless, the
said debate is left open as no argument was raised qua the
same by either side.

40. The petitioner too has not challenged the above Rules and
the requirement as incorporated in the Passport Manual and
the Passport Rules. Thus, it would be in the interest of the
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Digitally signed
by SUNENA
SUNENA SHARMA
SHARMA Date:

2021.07.05
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adoptive parents as well as the child in question to obtain a
simple ‘ No Objection Certificate’ from CARA in order to
ensure a clean transition from one country to another lest
they face any difficulty for the purpose of Visa or any other
requirement. Accordingly, in view of the earlier discussion
holding the adoption to be valid with no right either to CARA
and JJ Act, 2015, to question the same on account of the
adoption under HAMA, 1956 was a direct adoption by the
adoptive parents from the biological parents between close
relatives, the detailed tedious procedure prescribed under the
JJ Act, 2015 and CARA is not required. Therefore, CARA is
simply required to issue a ‘No Objection Certificate’ in the
same form as seems to have been issued to a child by the
name of Sai Himaja (F).

41. Accordingly, it is summarized that valid adoption under
HAMA 1956 of a minor child cannot be revoked until
disproved. It is not mandatory to invoke the JJ Act, 2015 in
the facts of the present case where the adoption is a direct
adoption by the parents to the known adoptive
parents/relatives under HAMA. As per
section 5.2 of Chapter
X of the Passport Manual, 2016 and in view of part I of
Schedule III under Rule 5 of the Passport rules, 1980, NOC
from CARA is required only by foreign parents and not Indian
parents.”

42. In view of the above, it is directed that:
(1) The respondent no.3-CARA shall issue a ‘No Objection
Certificate (NOC) to the adoptive parents of the
petitioner for taking their child to U.K within two
weeks.

(2) The Ministry of External Affairs/Regional Passport
office shall immediately thereafter issue the passport
to the petitioner within two weeks of the receipt of
NOC from CARA.”

27. Similar question had arisen even before Hon’ble Delhi High
Court in Master Divyansh Arora Vs. Union of India ors., WP
(C)6759/2016, date of decision 14.11.2017. In said case also
adoptive parents of petitioner child were German citizen with OCI
status and despite having valid adoption of petitioner (minor child)
from his biological parents under HAMA vide Registered Deed of
Adoption and despite there being a judgment of a competent court
ratifying the adoption, the adoptive parents were asked by passport
authority to first obtain NOC from CARA for getting the passport and
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Digitally signed by
SUNENA SUNENA SHARMA

SHARMA Date: 2021.07.05
16:56:02 +0530
Visa for their adopted child and when the adoptive parents
approached CARA, CARA asked them to go through a cumbersome
process by making an application for adoption to CARA. In the back
drop of said circumstances, petitioner approached Hon’ble Delhi High
Court for seeking directions to Visa issuing authority that certification
from CARA is not mandatory and further for a direction to Ministry of
Passport to issue a passport to the petitioner.

28. In above referred judgment, while referring to earlier
judgment of Coordinate Bench in case titled as PKH Vs. Central
Adoption Resource Authority through Secretary General; WP
(Civil) no.5718/2015, even Hon’ble Delhi High Court issued
directions against CARA to grant No Objection Certificate to the
adoptive parents for taking the child to Germany. The Hon’ble High
Court further observed that,
“The adoption, being in accordance with HAMA, is
complete. Accordingly, all relations between 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 situation.”

29. From the aforementioned two judgments of Hon’ble
Punjab Haryana High Court and Hon’ble Delhi High Court, it is
abundantly clear that the adoption made by biological parents to
adoptive parents under HAMA are not governed by the provisions of JJ
Act and since CARA is statutory body constituted under section 68 of
JJ Act, CARA is under no legal obligation to either certify about the
validity of such adoption or to issue any NOC in favour of parents in
respect of such adoption. However, since welfare of child is always
considered as of paramount importance, directions were given to
CARA for issuance of NOC especially considering the provisions of
Passport Act, 1967, Passport Rules 1980 and Passport Manuals 2016,

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 15 ofDigitally
20 signed
by SUNENA
SUNENA SHARMA
SHARMA Date:

2021.07.05
16:56:11 +0530
which make it mandatory to obtain NOC. The above position has not
been denied by either side even in the instant case but, CARA i.e.
defendant no.1 herein has opposed the claim of the plaintiff on the
ground that the judgment of Hon’ble Punjab and Haryana High Court
is under challenge and therefore, law laid down in said judgment has
not attained finality. However, I do not feel convinced with said
argument for the reasons that unless there is any stay against the
judgment, the judgment shall remain binding on all subordinate
courts.

30. Furthermore, when even our own Hon’ble Delhi High court
has taken similar view regarding non applicability of JJ Act on direct
adoption made under HAMA and had also given directions to CARA to
issue NOC especially considering the precarious situation in which the
adopted child would get placed if CARA was not directed to issue NOC,
as the minor had to live in uncertainty and insecurity on account of his
not being integrated with his adoptive family in the new country of
residence.

31. Even in the instant case, the adoptive child i.e. plaintiff
no.2 is 7 months old infant child who is presently living with his grand-
mother in New Delhi whereas, both his parents are residing in New
York, USA. The father had come to India to adopt the child. However,
when despite his efforts he could not get the passport for the child, he
approached this court with the instant suit for seeking relief of
mandatory injunction and declaration. Later, on account of his
business assignment, plaintiff no.1 had to go back to New York while
the child is still living with her grand-mother in Delhi. After adoption in
the month of December 2020, the relations of the child with her
biological parents have been severed while her relations with the
adoptive family are yet not integrated as the child is yet to unite with

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 16 of 20
Digitally signed
SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.05
16:56:21 +0530
them. The grand-mother of the child being herself an old lady, cannot
be expected to give that much care and protection which such small
child is expected to get from her parents. In the present scenario of
covid 19, when the entire country more particularly Delhi had recently
suffered the wrath of second wave, it is highly unsafe to keep such
small child of just 7 months without the care and protection of her
parents. It is also pertinent to mention that even third wave is
anticipated by the Health Ministry in the next few months which may
this time take a toll on life and safety of child population of India as
per the latest updates given by medical experts. Furthermore, in US
where the adoptive parents of infant child baby Saira are residing,
children above 12 years of age have already started getting
vaccination and the clinical trials are underway for the vaccination of
younger children. Whereas in India, the vaccination for children has
yet not started.

32. In the instant case, in view of the fact that the adoption
made under HAMA are not governed by JJA Act, no direction for
ratifying any such adoption can be given to CARA which is a statutory
body under JJ Act. However, plaintiff no.1 has duly proved on record
the adoption deed dated 13.01.2021 Ex.PW1/3 by examining himself
vide his affidavit Ex.PW1/A wherein, he has deposed that child was
adopted from biological parents vide said registered adoption deed.
PW1 also identified his signatures on the adoption deed. The
testimony of PW1 was further corroborated by biological father of the
child who was examined as PW2. PW2 also identified his signatures as
well as signatures of his wife on adoption deed Ex.PW1/3. Even
otherwise, as already noted above a presumption is liable to be drawn
in favour of plaintiffs regarding adoption recorded in adoption deed
Ex.PW1/3 in compliance of provision of Hindu Adoption and

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 17 of 20
Digitally signed
SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.05
16:56:33 +0530
Maintenance Act. As the adoption deed ExPW1/3, is a registered
document which is duly signed by persons giving and taking the child
in adoption and there is no evidence in rebuttal to disprove the
presumption, it is accordingly declared that adoption deed dated
13.01.2021 Ex PW1/3 is legal and valid.

33. Although in the plaint, no relief has been sought by the
plaintiff for seeking directions against CARA for issuance of NOC but,
during course of arguments counsel has prayed for said relief saying
that in the plaint, it was throughout the plaintiffs’ grievance that non
issuance of NOC by CARA had become a big hurdle for issuance of
Passport and Visa in the name of minor child but inadvertently, in the
prayer clause, said relief was left to have been prayed for while the
plaintiff has duly prayed for such relief in his interim application
moved u/o 39 Rule 1 and 2 CPC. Counsel has requested the court to
pass directions against CARA by considering his prayer in para no.3 of
the plaint wherein plaintiff has prayed to the court to pass any such
other or further order as court may deem fit and proper in the facts
and circumstances of the case.

34. This court is conscious of the fact that in absence of
directions against CARA to issue NOC in favour of plaintiffs, no useful
purpose would be served to the plaintiff in only getting the declaration
of the court regarding legality and validity of adoption deed dated
13.01.2021 especially when the provisions of passport Act 1967 and
Section 5.2 of Chapter X of Passport Manual 2016, makes it
mandatory for the foreign parents to obtain NOC form CARA before
applying for passport and Visa of their adoptive child. Child is deprived
of the love and care of his adoptive parents only because of this
technical hurdle coming in way for applying passport for her. In

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 18 of 20
Digitally signed
SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.05
16:56:47 +0530
absence of passport and Visa, the child cannot be integrated with her
parents living in US.

35. This court finds itself placed in a juxtaposition, where
Juvenile Justice( Care and
Protection of Children) Act, 2015 will not
apply on direct adoption under Hindu Adoption and
Maintenance Act
and as such no legal obligation can be attached to CARA to recognize
or ratify the adoption made under HAMA, while on the other hand
provisions of
Passport Act, 1967 and Manuals and Rules made there
under make the requirement of NOC from CARA as mandatory in
respect of foreign parents applying for passport for their adoptive
children irrespective of adoption being under Hindu Adoption and
Maintenance Act, 1965 or Juvenile Justice ( Care and Protection of
Children) Act, 2015.

36. In the backdrop of above peculiar situation, taking line of
the above two decisions of the Hon’ble High Courts is the only course
left with this court to save the child from being exposed to
unnecessary harassment and deprivation of love of her adoptive
parents living in United States. Though this court is conscious of the
fact that directions to CARA in said two judgments were given in
exercise of writ jurisdiction of Hon’ble High Court but, now in this
phase of pandemic when fear of third wave of COVID-19 is looming
large which as per medical experts may be more harmful to children
this time, asking plaintiffs to undergo rigmarole of fresh round of
litigation to seek appropriate remedies from Hon’ble High Court would
lead to grave injustice to the minor child.

37. Hence, in above circumstances, in exercise of inherent
powers of this court, it is deemed expedient in the interest of justice
to direct CARA to issue NOC in favour of plaintiffs’. Accordingly, having
declared the adoption of minor child baby Saira vide adoption deed

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 19 of 20

Digitally signed by
SUNENA SUNENA SHARMA

SHARMA Date: 2021.07.05
16:56:57 +0530
dated 13.01.2021 Ex PW1/3 as legal and valid in accordance with
provisions of HAMA, this court further direct CARA i.e Defendant no. 1
to issue No Objection Certificate in favour of plaintiffs to facilitate safe
transition of minor child baby Saira from India to United States to
reunite her to her adoptive parents living there.

38. The suit stands partly decreed in above terms. Decree-sheet
be prepared accordingly. File be consigned to record room.

                                                             SUNENA           Digitally signed by SUNENA
SHARMA
SHARMA Date: 2021.07.05 16:57:09 +0530
(Sunena Sharma)
Addl. Distt Judge-04
Judge Code : DL00222
Patiala House Courts : New Delhi
Announced on 05th July,2021

CS no.154/21
AMIT AHUJA VS. CENTRAL ADOPTION RESOURCE AUTHORITY Page No. 20 of 20

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