Isha Sawant | Government Law College, Mumbai | 8th August 2020
Jasmine Kaur v. Union of India
Facts:
The petitioner- a minor child, named- Jasmine Kaur, she is one of the twin daughters born on 15-11-2017, to her natural parents Mr Manohar Lal and Mrs Gian Kaur; Mrs Balbir Kaur, 53 years old, is a NRI, OCI card holder, UK citizen and wife of Mr Paramjit Singh, permanent resident in UK, she is also the real sister of Mrs Gian Kaur. The petitioner was adopted by above mentioned Mrs Balbir Kaur and Mr Paramjit Singh from her natural parents, the adoption was done as per Sikh rites and ceremonies at a Gurudwara in Jalandhar, a certificate to that effect was issued, and this adoption was completed under the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as HAMA,1956). A registered adoption deed was executed on 16-11-2018 between the adoptive parents and the natural parents. The previous birth certificate dated 17-08-2016, bearing the name of the natural parents, after adoption a new birth certificate was issued on 29-11-2018 in the name of the adopted parents i.e. Mr Paramjit Singh and Mrs Balbir Kaur. The petitioner had applied for a passport, providing relevant and necessary documents for the same, however the Passport Authority refused her passport on the ground that a NOC from Central Adoption Resource Authority (hereinafter referred to as CARA) or photocopy from Recognized Indian Placement Agency (RIPA) was required and had not been submitted by the petitioner. The case was filed seeking direction for the dismissal of the requirement of NOC by the Passport Authority.
Issues:
- Whether a direct adoption made between relatives under the Hindu Adoption and Maintenance Act, 1956 is valid; do that facts of the present case fall under the Juvenile Justice Act, 2015 (hereinafter referred to as J.J Act, 2015) or can adoption in the present case only be under the Juvenile Justice Act.
- If NOC from CARA as mandated under section 60 of the Juvenile Justice Act required for direct inter-relative adoptions.
- Does the Passport Authority have the authority to refuse to issue a passport beyond the statutory provisions of section 6 of the Passports Act, 1967?
Legal Provisions:
- Hindu Adoption and Maintenance Act, 1956, sections- 2, 5 and 15.[i]
- Juvenile Justice (Care and Protection) Act, 2015, section 56(3) and section 60.[ii]
- Passports Act, 1967, Section 6.[iii]
Petitioner Contentions:
The counsel for the petitioner argued that the petitioner was being denied a passport only on the ground of not submitting a NOC from CARA as mandated under the J.J Act, 2015. It was contended that the petitioner was adopted under a registered adoption deed, duly executed under the provisions of HAMA, 1956; and since the provisions of the J.J Act, 2015 are not applicable to the adoptions made under HAMA,1956 and so the requirement of NOC from CARA will not apply to the petitioner.
Respondent Contention:
The respondent contended that even though the provisions of the J.J Act, 2015 are not applicable to adoptions made under the HAMA, 1956, it is mandatory for the adoption to be ratified by CARA. It also stated that the present case is of inter-country adoption as the adoptive parents are citizens of another country, the adoption will fall under the provisions of section 56(4) the J.J Act, 2015 and will thus; require NOC and registration from the concerned authority.
Observations made by the Court:
The case was heard by Justice Nirmaljit Kaur, of the Punjab and Haryana High Court. Mr Anil Malhotra, Advocate, was appointed as amicus curie by the court to research if the provisions under sections 56(4) and 60 of the J.J Act, 2015 will apply to the present case by virtue of it being an inter-country adoption. It was clarified that the J.J Act was applicable to a limited class of children who are in conflict with law, orphaned, surrendered or abandoned by their parents. In this case, since the biological mother is the real sister of the adopted mother, the adoption does not fall under the J.J Act, 2015. The amicus curie pointed out that sections 56(4) and 60 of the J.J Act, 2015 pertaining to inter-country adoption have to be read in conjunction with section 56(3) of the same act which states that adoptions under HAMA, 1956 will not come under purview of the J.J Act, 2015. Once an adoption is applied for and registered under the HAMA, 1956, it cannot be challenged saying that the same should have been done under the J.J Act, 2015; section 15 of HAMA, 1956 clearly states that the adoption of a minor child is irreversible and cannot be revoked, until it is disproved on valid grounds by a court of law. It was also clarified that even if the adopted parents are British citizens, their religion (Sikh, in this case) does not change, thus maintaining their right to adopt under HAMA, 1956. The court cited the Supreme Court case of Lakshmi Kant Pandey v. Union of India (1984) and Anokha (Smt.) v. State of Rajasthan and others (2004), where it was clarified that the Juvenile Justice Act was not concerned with adoption of children by their biological parents, it was stated that biological parents have are capable of making their decision regarding the same; the act seeks to protect those children who have been and orphaned or abandoned and to regulate their adoption. The act does not seek to interfere with the rights of biological parents in giving their children in adoption to relatives (living in or outside the country), individuals of foreign origin, etc. on the issue of the Passport authority denying passport to the petitioner for failure to submit NOC from CARA, the court stated that since the adoption was duly registered under the HAMA, 1956, the respondents cannot question the validity of the adoption on the ground of not having a NOC from CARA. The provisions of Passport Manual, 2016 were brought to the notice of the court that required NOC from CARA, and court order on adoption, along with other requisite documents for issuance of a passport for inter-country adoption, the court asked the adopted parents to obtain the NOC for avoiding further difficulty in their transition from one country to another.
Judgement:
The court directed CARA to issue a NOC to the adoptive parents of the petitioner within two weeks. It directed the Ministry of External Affairs/ Regional Passport Office to upon receiving the NOC from CARA, to immediately issue a passport within two weeks so that the parents can take their child to UK.
The court expressed that the Juvenile Justice (Care and Protection of Children), Act, (2000) and now 2015 was framed to bring into legislation India’s commitment to the United Nations Convention on Rights of Child and other international protocols and guidelines that seek the protection and empowerment of children in conflict with law, abandoned, surrendered or orphaned; the law seeks to protect these children from being trafficked and other anti-social elements in the society. The provisions of the act are stringent to protect the rights of these children; and it does not seek to override an individual’s right to adopt as per their personal law if they choose to do so.
Resources:
[i] https://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf
[ii] http://cara.nic.in/PDF/JJ%20act%202015.pdf
[iii] https://portal2.passportindia.gov.in/AppOnlineProject/pdf/passports_act.pdf
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