New guidelines attractive, but illusory

Inter-country adoptions
New guidelines attractive, but illusory
by Anil Malhotra

CARA should resolve conflicts and not compound them

THE Guardian and Wards Act, 1890 (GWA), the 116-year-old Indian legislation plays spoilsport. A whopping 12 million orphan children in India need parents but the law does not allow Muslims, Christians, Jews and Parsis to become their adoptive parents. They can be appointed as guardians only.

The Hindu Adoption and Maintenance Act, 1956 (HAMA) does not allow non-Hindus to adopt a Hindu child. Consequently, non-Hindus and foreign nationals can at most become guardians under the GWA but cannot adopt children from India.

The Central Adoption Resource Authority (CARA) is the nodal Central body in New Delhi. To facilitate implementation of the norms, principles and procedures relating to adoption of children from India to foreign countries, the Supreme Court in three successive decisions in 1984, 1986 and 1992 in L.K. Pandey vs Union of India had directed the Government of India to issue guidelines for the above purposes. Accordingly, CARA from time to time has issued guidelines for adoption of children from India to foreign jurisdictions besides in-country adoptions.

The new guidelines by CARA for full and final “adoption” of children in India before they are sent abroad with prospective parents and that these will mandate “final adoption of Indian children” under HAMA and the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) seem attractive but illusory. This is because unless non-Hindu parents are statutorily permitted to “adopt” and not be merely guardians, any guidelines cannot overreach statutory law.

Till such time adoption is permitted only to Hindus, any foreigner who is a non-Hindu cannot adopt a child in India simply because no law permits so. In such event, the exercise of CARA to frame guidelines to allow foreign couples to adopt children in India may be flawed and defective. Any guidelines can supplement the law but not supplant it. Consequently, CARA cannot enact a law of its own.

HAMA permits adoption to a male or a female Hindu through a process of adoption enacted by Indian Parliament to codify the law relating to adoptions among Hindus. Even the JJ Act, permits adoption of orphaned, abandoned, neglected and abused children through institutional and non-institutional methods. But there is no statutory law which permits non-Hindus who are foreign nationals or professing other religions to adopt children in India.

For them, the limited recourse is to the GWA to become guardians which enables them to use the guardianship order obtained inIndia under the GWA to ultimately gain adoption in foreign jurisdictions. In this event, Indian statutory law does not permit adoption to foreign nationals and persons professing other religions to adopt in India.

HAMA gives a conclusive status to an adoption deed recording an adoption in compliance with its provisions. However, all foreign embassies or the High Commission in India still insist that the adoption deed is not enough. Rules of foreign jurisdiction stipulate that the adoptive parents have to thereafter obtain guardianship orders from a Guardian Judge under the Hindu Minority and Guardianship Act, 1956 (HMGA) for Hindus and a similar order under the GWA for non-Hindus.

Genuine transfer of parental responsibility by an irrevocable adoption deed is rendered redundant. This results in a paradox in law. A valid adoption deed under HAMA is not acceptable to foreign jurisdictions for immigration purposes unless it is supported by a guardianship order under the GWA or HMGA. Strange but true, that is how the law is read by foreign embassies and High Commissions in India.

Against this backdrop, what should CARA do? It should resolve the conflicts and not compound them. CARA could well send a recommendation that before it enacts any guidelines, they should confirm to statutory law. Any guidelines which differ from the codified law will only add but not subtract to the current muddle of inter-country adoptions law.

The mechanics of inter-country adoptions, stringent adoption procedures, insurmountable technicalities, high refusal rates of visas for children in adoption matters and inordinate delay in Indian court procedures have been a deterrent to adopt a child fromIndia. What do we need? Where is the change desired?

A general law for adoption in India enabling any person, irrespective of his religion, race or caste to adopt a child from India will help. Further, keeping in view the Supreme Court’s guidelines in adoption by foreign nationals to prevent trafficking of children and to protect their welfare, a uniform streamlined statutory procedure acceptable to foreign jurisdictions would also sere the purpose better to mitigate the plight of the adoptive child.

The writer, a practicing lawyer in Chandigarh, specialises in Private International Law