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The Delhi High Court recently allowed Christian parents to take a minor Child in Adoption despite non compliance of Section 59(3) of the Juvenile Justice Act after observing that the petitioners had taken good care of the child.

The order was passed by the single Judge bench of Justice Asha Menon on a petition filed  by Mr.JS and Mrs.MS, who described themselves as the adoptive parents of a minor named JJS, seeking directions to the Central Adoption Resource Authority (CARA) to issue a No Objection Certificate to them, which would enable them to take their “adopted child”,  a minor, to the United States of America (USA). Directions were also  sought to Union of India  for issuance of a passport to the minor mentioning the petitioners as her parents.

Counsel appearing for CARA submitted that the petitioners had not validly adopted the minor. Therefore, CARA could not issue the NOC that the petitioners were seeking. Moreover the child had not come through the CWC, as it was neither surrendered nor found abandoned, and the CWC had not declared the child fit for adoption. Furthermore, the Home Study had not been conducted by an agency that is recognized by CARA and in fact, the Home Study Report has been obtained by the petitioners themselves, in order to claim adherence to the Hague Convention.

The Court observed that the minor had not been validly adopted by the petitioners since the Adoption Deed drawn up under the Hindu Adoptions and Maintenance Act is invalid as the parties are Christians and not Hindus. Thus, no valid Adoption Deed existed to establish the relationship between the petitioners and the minor. Further no court had declared the minor to be the adopted child of the petitioners. The procedure prescribed for adoption under the JJ Act had also not been adhered to. The Court was of the view that “CARA cannot be, therefore, faulted in refusing to issue the NOC on the ground that the child has not been validly adopted”

The Court further observed that though no formal surrender was made by the biological father before the CWC at Ferozepur, he had affirmed on oath before the Additional Civil Judge (Senior Division), Ferozepur that he had handed over the child for adoption voluntarily. “Though there is no valid adoption of the child, the petitioners and the parents of the petitioner No.2 have taken good care of the child.”

The Court further observed that the child had to be handed over to the petitioners by the CWC, declaring them as the “foster family”. Such an order was however absent and  the CWC had to declare the child “free for adoption”.

The Court was of the view that to now relegate the petitioners to the CWC and register themselves as per the Rules and Regulations, may further delay the matter. In the interest of the welfare of the Child the Court declared the petitioners as the  “adoptive parents” of the minor child and directed CARA to issue the NOC .

The Court further directed that CARA shall not insist on compliance of provisions of Section 59(3) in the JJ Act dealing with NRIs or OCIs. Additionally, CARA shall also ensure that for a period of two years, an authorized agency, recognized by it for this purpose, submits the Home Study Reports at quarterly and half yearly intervals to CARA.

Case Title:JS & Anr vs Central Adoption Resource Authority and Anr