Delhi HC granted relief to a Christian couple who adopted a child under Hindu Adoption and Maintenance Act due to wrong legal advice

By - Shriya Singh*

Delhi High Court granted relief to a Christian family who adopted a child through an adoption deed under the Hindu Adoption and Maintenance Act, 1956 (HAMA). The foster family took care of the child for more than six years since the child was born, albeit, the legal route which the family adopted for adoption was not applicable.

As per the fact situation, the couple, who were childless, were based in the USA adopted a child of Indian origin by a deed executed under HAMA. The child was given to the petitioner by her cousin, Sister EA, who was a social worker at the relevant time being, working in Ferozpur District, Punjab. The biological parents of the child were migrant workers who were unable to feed the infant. The biological parents handed over the infant to Sister EA, agreeing to give the child for adoption. The adoption deed was executed by an advocate/document writer in Ferozpur. As argued by the counsel of the petitioners, the executed deed was on the account of “wrong legal advice”.

Since the birth of the child in 2014, the adoptive family raised the child for almost six years. Legal complications arose when they tried to get a passport for the child to take her to the USA with them where they were employed. The passport authorities refused to proceed as per the adoption deed. In a 2018 ruling, the trial court held that the Adoption Deed was void being contrary to Section 2(1)(c) read with Section 5 & 6 of HAMA, as both the adoptive and biological parents of the child were Christian. Furthermore, the petitioners approached the Central Adoption Resource Authority (CARA) with regard to the issuance of NOC which will declare the child was legally free for adoption. After the rejection of the appeal by CARA, they approached the Delhi High Court.

Also Read - PG degree from an Open University in absence of a UG degree doesn't hold value: Madras High Court

It was submitted on behalf of CARA that, the adoption deed was not valid as the adoptive parents of the child and the biological parents as well are the believers of the Christian religion and HAMA is applicable only to the Hindus as defined in Section 2, which specifically says that, ‘any person who is not a Muslim, Christian, Parsi or Jews by religion’. Looking further into the matter, the Delhi High Court, however, ruled in favour of the foster family, having regard to the fact that from the past six years they had looked after well and it would be against the welfare of the child to do away with her from the adoptive family.

Delhi High Court held that CARA’s stand on the matter is not faulted and it is true that the Adoption Deed is void. In para 28 court opined, “Christians have no custom of giving and taking in adoption. The “direct adoption” is with reference to Hindus. That is why there is a reference to HAMA. Drawing up an adoption deed under HAMA in relation to Christians is not legally valid as held by the Additional Civil Judge (Senior Division), Ferozepur. In reality, no adoption has taken place at all, leave alone prior to 2016”.

Also Read - Delhi High Court stays Rs 25,000 fine in Delhi riots case; Refuses to interfere with the trial court's remarks at this stage.

However, the court noted the petitioner’s claim that the child has been with them since 2014 and the biological parents have no objection to this. Therefore, in para 34 of its judgment, the Court opined, “...he (the biological father) has 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”.

“Within the parameters of the law, this Court declares that the petitioners, namely, JS and MS are the “adoptive parents” of the minor child, namely, JJS and the minor child JJS is the “adopted child” of the petitioners, named above, with effect from the date of this order and shall be vested with all the rights, privileges and responsibilities that are attached to a biological child,” the bench held.

Also Read - Senior journalists N. Ram, Sashi Kumar move Supreme Court seeking probe into alleged use of Pegasus for mass surveillance.

The bench also added that “As this Court has declared that the minor is the adopted child of the petitioners, CARA is directed to issue the requisite NOC. It is 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”.

CLICK HERE TO READ JUDGMENT.

*Shriya Singh is a 1st year student pursuing B.A.LL.B.(Hons.) from National Law University, Delhi.