‘MEA cannot decline passport to legally adopted child’: HC gives Centre 2 weeks to respond to expert opinion

THE PUNJAB and Haryana High Court Thursday gave two weeks time to the Centre to respond to the arguments of an expert that the Ministry of External Affairs and regional passport officer cannot decline an adopted child a passport by questioning the validity of the adoption or for lack of NOC of Central Adoption Resource Authority (CARA).

The high court, since 2019, has been hearing a petition filed in the name of a minor challenging the decision of denying her the passport for lack of an NOC from the CARA, a statutory authority for regulation of inter-country adoptions. The 2017-born child was adopted by her mother’s sister and latter’s husband in 2018. The adoptive parents of the child are British nationals while the biological parents of the child are from Jalandhar. A registered deed for record of the adoption was also got prepared by them following the ceremonial adoption at a gurdwara in Phillaur. The parents name was also got changed on the birth certificate.

Following submission of the report by Amicus Curiae advocate Anil Malhotra, who is considered an expert on the subject of cross-border child removal, Additional Solicitor General of India Satya Pal Jain informed the court on Thursday that the report has been sent to Delhi for comments. Justice Jaishree Thakur, while listing the case for final disposal on July 15, gave two weeks to the Centre for reply. Malhotra had been earlier asked by the court to assist it in the matter.

In a 79-page report, Malhotra opined that the invalidity of adoption or lack of NOC from CARA are no grounds for rejecting the application for passport of an adopted child. He also submitted that the parties in the case have already fulfilled the conditions of Hindu Adoptions and Maintenance Act (HAMA) for the adoption and the ceremony held for it is duly recorded in the adoption deed.

Submitting that though there was not even a requirement for registering the adoption, Malhotra said, as a benefit of it, “hence, under Section 16 HAMA, a presumption shall be drawn that the said adoption has been made in compliance with the provisions of HAMA & there is a presumption in law as to what is recorded in the said deed”. The process is irreversible under the HAMA, he has said, adding, thus there is no scope to insist for a court order or NOC from CARA for issuance of the passport. The presumption under HAMA is applicable at the time of consideration of issuance of passport, as per the report.

Malhotra has also stated that the biological parents are at liberty to do inter-relative adoption under the Juvenile Justice Act but Hindus are at complete freedom to solemnize the adoptions under HAMA, which is the personal law. “There is no need, requirement or necessity for the petitioner to obtain any NOC from CARA, as per the position under Section 56 (3), JJA, and the provisions of the Adoption Convention and the UNCRC, which operate in the best (interest) of the child,” the report states, while referring to the exemption provided under the Juvenile Justice Act from the mandatory procedure under it for adoptions done in accordance with procedure of HAMA.