A US-based Christian couple is declared as the ‘adoptive parents’ of a minor girl born out of Hindu parents. The decision was taken by the Delhi High Court while chastising them for trying to adopt under an incorrect law.
The High Court restated that Christian and Muslim couples are illegible to adopt a Hindu child under the Hindu Adoptions and Maintenance Act (HAMA), as was sought to be done in this case.
“The Adoption Deed drawn up under the HAMA is invalid as the parties are Christians and not Hindus,” Justice Asha Menon said, as quoted by The Hindu.
The HC also observed that the child, who is now over 6 years of age, had been under the custody of the adoptive parents since her birth. To that Justice Menon stated that the child was being well taken care of by the foster parents and their family, hence there is no need to pull her out from their charge and guardianship.
What did the HC perceive?
The High Court maintained that the personal law of the Hindus recognises adoption. “Therefore, the adoption ceremony known as ‘Datta Homam’, where the biological parents voluntarily surrender and hand over the child to the recipient, following religious ceremonies, was considered sufficient to result in a valid and legal adoption,” it added.
The connection between the biological family and the child to be given away for adoption diminishes once the ceremony is conducted. Nevertheless, this right to adopt had been brought under the HAMA that established certain constraints on who could adopt and who could be adopted and what were the other conditions for a rational adoption.
HAMA, Hindus Adoption and Maintenance Act, as the name states was applicable only to Hindus and specifically mentions that the rules are applied only to those who are not Muslim, Christian, Parsi or Jew by religion, the court elucidated.
“However, as far as Muslims and Christians are concerned, their personal laws do not recognise adoption. As HAMA excludes them, they cannot seek to adopt a child in terms of that Act, including by means of a registered document recording an adoption,” the court added.
Justice Menon, however, said that a person interested in adoption was not limited by their religion if adoption was sought under the Juvenile Justice (Care and Protection of Children) Act.
What made the court reprimand the parents?
The adoptive parents had moved the court seeking directions to the Central Adoption Resource Authority (CARA) to issue a ‘No Objection Certificate’ (NOC) to enable them to take their ‘adopted child’ to the U.S.
They asserted that a social worker met the biological parents of the child, migrant manual labourers working in Ferozpur, who had already lost two babies.
The child was born on December 11, 2014. The social worker along with the SHG women went to the house of the biological parents of the child and found that the mother was unable to feed the newborn baby.
On December 12, 2014, the infant was taken to a paediatrician, who informed that the baby was critically malnourished and she might not survive the night with her biological parents.
The adoptive parents voiced that on December 18, 2014, after performing customary rituals in respect of the adoption in the presence of the panchayat elders, the biological parents of the minor performed the Adoption Deed thereby giving the child in adoption to them.
Problems arose when they sought a passport for the child to permit them to take her to the USA where they work.
The Central Adoption Resource Authority, CARA, ascertained that the couple had not legally adopted the minor, therefore, a NOC couldn’t be issued to them.
Justice Menon reflected that the adoptive parents have taken care of the child as a “foster family” since she was turned into their custody after birth. To avoid further delay in the adoption process, the High Court directed the CARA to issue the required NOC.
The court also asked the couple to present an undertaking that they would nurture the minor as their own biological child and give her fairish educational and other developmental opportunities within their approach and look after her medical needs.