Foreigners Or Persons Of Indian Origin Or Overseas Citizens Of India Can Adopt Child From India With NOC From Their Country's Diplomatic Mission In India: Karnataka HC
|The Karnataka High Court held that foreigners, persons of Indian origin, and Overseas Citizens of India can adopt children from India, provided they secure a No Objection Certificate (NOC) from their country's diplomatic mission in India.
The Court disposed of a couple's petition for obtaining a No Objection Certificate (NOC) and Conformity Certificate, despite having a certificate confirming the validity by the Deputy Commissioner.
The Court noted that the Petitioners must contact German authorities under the Hague Convention for NOC and Conformity Certificate. On receipt, the Central Adoption Resource Authority (CARA) will promptly issue both certificates without delay.
The Bench of Justice M. Nagaprasanna observed, “a foreigner or a person of Indian origin or an Overseas Citizen of India can apply for adoption of a child from India to the Authority with NOC from the diplomatic mission of his country in India”.
Advocate Rohan S. appeared for the Petitioners and Deputy Solicitor General H. Shanthi Bhushan appeared for the Union.
The Petitioners, a husband and wife, approached the Court seeking a mandamus to direct the consideration of their representation. The representation was made to obtain a No Objection Certificate (‘NOC’) and Conformity Certificate for their adopted child, following the Adoption Regulations, 2022 for Inter-Country Relative Adoption.
The Petitioners, both Indian citizens, faced infertility issues and decided to adopt a girl child. The adoption was formalized through an adoption deed executed before the Office of the Sub-Registrar. The Deputy Commissioner verified the adoption deed and issued a certificate confirming its validity, recommending necessary action.
In adherence to the legal process, the Petitioners applied for an NOC and a conformity certificate at the District Child Protection Unit. Despite numerous emails and requests, the unit did not consider the application or issue the required certificates.
The Court framed the following issue: “Whether the petitioners are entitled to a NOC and conformity certificate of the kind of adoption under the Act?”
“The convention (Hague convention) was to recognize that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. The convention further recognized that inter-country adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin”, the Bench noted.
The Bench emphasized that the convention aimed to prevent child abduction, sale, and trafficking by establishing principles on social and legal aspects related to the protection and welfare of children, especially in the context of foster placement and adoption. “An adoption within the scope of the Convention could take place if the competent authorities have determined that the prospective adoptive parents are eligible and suited to adopt and have determined that the child is or will be authorized to enter and reside permanently in that State”, the Bench observed.
The Court noted that specific articles of the convention were relevant to the case at hand, particularly Article 5, which addressed adoption and the competent authorities of the receiving State. According to Article 5, adoption within the convention's framework could proceed if the authorities ascertained the eligibility and suitability of prospective adoptive parents and ensured the child's authorization to permanently reside in that State.
Emphasizing mutual agreement by the Central Authorities of both States, the Court emphasized that for the adoption to be considered valid, both India and Germany must reach a consensus and officially recognize it. Regulations governing the composition of an 'adoption committee,' in-country adoption, and the definition of a No Objection Certificate (NOC) were outlined.
The Bench noted that the Petitioners, falling into the category of non-resident prospective adoptive parents, were subject to Regulation 58, requiring the Authority to issue an NOC within 10 days of receiving a certificate under Article 5 or 17 of the Hague Adoption Convention.
The Court laid down the adoption procedure under Regulations 68 and 69, emphasizing the importance of the NOC and conformity certificate, which must be issued by Indian authorities upon receiving the verification certificate and necessary permission from the receiving country.
Pointing to the Deputy Commissioner's role in issuing the verification certificate, the Bench observed that the delay in NOC issuance cannot be attributed to the authorities. The prescribed procedure involved the Petitioners approaching the competent authority in Germany, which, upon communication with Indian authorities, was expected to initiate NOC issuance within 10 days.
The Court emphasized that the delay was due to the Petitioners' failure to adhere to the prescribed procedure, consistently communicated by the authorities. Referring to a judgment in The Temple Of Healing v Union Of India [W.P. No. (Civil) 1003/2021], the Bench emphasized the need to align adoptions under the Act with international adoption conventions, streamlining and expediting the rights of adopted children in signatory nations to the Hague Convention. The Apex Court, in its observation, granted the right to apply for the adoption of a child from India to foreigners, persons of Indian origin, or Overseas Citizens of India, but emphasized the necessity of obtaining an NOC from the diplomatic mission of their country in India.
The Bench, therefore, emphasized that the Petitioners ought to approach the German authorities under the Hague Convention, requesting communication to India for the issuance of a No Objection Certificate (NOC) and Conformity Certificate.
Upon receiving this communication from the German authority, the Court directed the CARA to promptly issue the NOC and Conformity Certificate without any delay. Granting the Petitioners' request without adhering to this established procedure would contradict the prescribed process. Therefore, inter-country adoption must strictly align with the procedure outlined above.
Accordingly, the Court disposed of the Petition.
Cause Title: U. Ajay Kumar v The Union Of India