Adopted Child's Rights Cannot Be Left Marooned: Karnataka HC Directs CARA To Consider Granting NOC For Cross Border Adoption By Indian Couple
The Karnataka High Court directed Central Adoption Resource Authority (CARA) to consider representation filed by Indian Couple seeking NOC in relation to the cross border adoption of a child by them.
The High Court of Uganda had passed orders declaring the rights of the Indian parents over the child. Since Indian citizens were granted guardianship and all rights as parents over the child, the couple seeking legal recognition in India were also legal parents of the child adopted in Uganda.
A Single Bench of Justice M. Nagaprasanna observed, “The petitioners are not the ones who are asking for legalizing, an illegal adoption. They are the ones asking recognition of a legalized adoption under the Regulations of the Nation. They have in their arm complete legal process in the High Court of Uganda qua their right over the child. Therefore, it becomes necessary to iron out the creases even in the Regulations by harmonizing the provisions of the Act and the Regulations to accept such adoption and direct issuance of a no objection or approval of such adoption.”
Advocate Sameer Sharma represented the petitioners, while DSGI H. Shanthi Bhushan appeared for the respondents.
The petitioners, an Indian couple residing in Nairobi, Kenya, had adopted a child through legal procedures in Uganda. High Court of Uganda had declared the couple as the adoptive parents of the child and was granted all consequential rights over the child. The couple then sought formal adoption recognition in India for the child considering they were Indian citizens. They applied before the Central Adoption Resource Authority (CARA), but did not receive any response, prompting the couple to seek a direction by issuance of a writ of mandamus.
Regulation 23 of the Adoption Regulations of 2022 deals with the procedure for the adoption of a child from a foreign country by an Indian citizen. Sub-regulation (2) of Regulation 23 mandates that on receipt of the Home Study Report of the prospective adoptive parents, CARA has the authority to approve the adoption of children coming into India as a receiving country under Article 5 or Article 17 of the Hague Adoption Convention.
Considering that India was a signatory to the Hague Adoption Convention, while Uganda was not, the Court stated that “the rights of the child to be treated as a citizen of India, on legalizing adoption, lies in limbo.”
The Court explained that if the rights of a party had been conclusively determined by a foreign court, then those orders would become implementable through the Courts in India as well.
The Court held, “Even though the adoption has not happened under the Hindu Adoptions and Maintenance Act, and in a country which is not a signatory to Hague Convention, but adoption has happened, the rights of a child of Indian citizens, who have adopted, cannot be left marooned.”
Accordingly, the High Court allowed the petition.
Cause Title: Sri Ravi Kumar C. & Anr. v. Central Adoption Resource Authority & Anr.
Appearance:
Petitioners: Advocate Sameer Sharma
Respondents: DSGI H. Shanthi Bhushan