Ravi Ganjoo v. Union of India & Ors.

1. This application has been filed by the petitioner with the following prayers: “In view of the present facts and circumstances, it is most humbly and respectfully prayed that this Hon'ble Court may graciously be pleased: (A) To Direct the Respondent No. 4 to issue "NOC" to the Applicant; and 2022:DHC:690 W.P.(C) 8834/2021 Page 2 (B) To Direct the Respondent No. 1 to 3 to issue a valid passport in the name of 'Trisha Ganjoo', while recording the name of Applicant and his wife as her 'Father' and 'Mother', on the passport; and

(C) Directing the Respondent No.5 to change the parentage of minor girl 'Trisha Ganjoo', while recording the Petitioner's name as 'Father' and his wife's name as 'Mother', on her Matriculation Certificate, without insisting for Gazette Notification and Newspaper publication or any other requirement; and

(D) Any other or such further order(s) as this Hon'ble

2. The writ petition has been filed by the petitioner praying for a direction against the Passport Authority for issuance of a passport to a minor girl Trisha Ganjoo (‘minor girl’ hereinafter) by recording the names of the petitioner and his wife as father and mother on her passport. A further direction has been sought against the Central Board of Secondary Education (‘CBSE’, for short) to change the name of the parents of the minor girl on her matriculation certificate and record the petitioner and his wife’s name as adoptive parents.

3. It is the case of the petitioner that he is the paternal uncle of the minor girl, whose parents namely Sanjay Ganjoo and Alka Ganjoo had expired in a road accident on June 2, 2005. The petitioner and his wife Illa Ganjoo have legally adopted the minor girl under the provisions of Hindu Adoptions and Maintenance Act, 1956 (‘HAMA’, for short) after taking due permission from the District Judge in terms of the Judgment dated December 23,

2008. His request for issuance of passport was rejected by the W.P.(C) 8834/2021 Page 3 passport authority. The passport authority vide letter dated July 5, 2021 addressed to the minor girl had called upon the petitioner to furnish certain documents including ‘No Objection Certificate’ from Central Adoption Resource Authority (‘CARA’ for short).

4. In the short-affidavit filed by respondent Nos. 1 and 2 it is stated that the petitioner who is a US citizen holding a US passport has applied for the passport of the minor girl by relying upon the adoption deed executed in 2019 along with the order dated December 23, 2008 of the learned District Judge. Since the petitioner is a US citizen, the present case falls under the category of inter-country adoption. A reference has been made to the Passport Manual, 2020 for issuance of passports to all the applicants under the category of inter-country adoption, wherein a reference has been made with regard to the following documents: “a) Conformity Certificate issued by CARA; b) No Objection Certificate (NOC) from CARA (if original NOC of CARA is not available with the applicant due to the reason that it has been submitted in the court, a copy of the same duly certified / attested by CARA may be accepted by the PIA for the issue of passport); c) Court order on adoption of certified copy thereof; and d) Any other document, if required, for the issuance of passports to minor children.” Reference is also made to Rule 5 of the Passport Rules and the appropriate forms set out in Part I of Schedule 3 of Rule 5.

5. Respondent Nos. 1 and 2 have also stated that the issue of requirement of NOC by CARA has been dealt with by the High Court of Punjab and Haryana in a Judgment dated July 28, 2020 in W.P.(C) 8834/2021 Page 4 the case of Jasmine Kaur v. Union of India and Ors., CWP 10555/2019. Reference is also made to the Judgment of a Coordinate Bench of this Court in the case of R.K. and Anr. v. Central Adoption Resource Authority dated August 31, 2021 in W.P.(C) 279/2019 and connected matters, wherein this Court in paragraphs 79 and 85 to 88 has stated as under: “79. An analysis of the various judgments, the JJ Act, 2000, the JJ Act, 2015 and the regulations thereunder, as also the Hague Convention, leads this Court to the following conclusions: (1) The provisions of the JJ Act, 2015 apply in respect of orphaned, abandoned, surrendered or abused children. (2) In view of the clear exclusion in Section 56(3), the JJ Act, 2015 would not apply in respect of valid adoptions under HAMA – whether domestic or inter-country. Thus, domestic and inter-country adoptions where the parties are Hindus and the adoption has already been validly carried out in terms of the provisions of HAMA, do not fall within the purview of the JJ Act, 2015. (3) In view of Art.37 and other provisions of the Hague Convention, adoptions under HAMA are duly recognized. (4) Persons belonging to communities other than those governed by HAMA may resort to the provisions of the JJ Act, 2015 for effecting adoptions. In addition, persons who are governed by HAMA also have the option of effecting adoptions under the JJ Act, 2015 in view of Section 56(2) (5) Courts have verified various factors such as credibility of the adoptive parents, consent of the biological parents, nature of documents executed, Court orders if any, financial status of the adoptive parents, home study reports, duration for which the child has already been living with the adoptive parents, the condition of the child etc. After taking all these factors into consideration, upon W.P.(C) 8834/2021 Page 5 satisfaction that the welfare of the child is taken care of, Courts have either directed CARA to issue an NOC or directed issuance of a passport for the child to travel with the adoptive parents to a foreign country. (6) The Hague Convention encourages issuance of an NOC for recognition of inter-country adoptions. (7) In the existing framework of the JJ Act, 2015 and the Regulations thereunder read with HAMA, there is a clear gap in the law as to the manner in which - • inter-country adoptions under HAMA are to be recognised; and • adoptions already recognized under HAMA are to be given effect to for the purposes of inter-country adoptions by biological parents or relatives, to third parties or otherwise. xxxx xxx xxxx

85. In view of the fact that currently no permanent mechanism exists for inter-country direct adoptions under HAMA, bearing in mind the welfare of children, which is of utmost importance in cases of adoptions, as also to ensure that there is no trafficking of children, the Ministry of Women & Child Development, Govt of India, is directed to place a report before this Court as to the manner and mode of creating a permanent mechanism to deal with intercountry adoptions under HAMA, both direct and indirect and place the said report before this Court within a period of two months.

86. However, until a proper permanent framework is put in place, to ensure the welfare of the adopted children and to provide a timely mechanism for the biological/adoptive parents as also the child, in view of the experience of CARA in dealing with inter country adoptions, it is deemed appropriate to direct CARA to act as the Authority for the purposes of enabling inter country adoptions under HAMA. W.P.(C) 8834/2021 Page 6

87. There is no existing procedure currently under CARA for adoptions under HAMA. However, there is a shortened procedure that already exists in respect of adoptions which were effected prior to the coming into force of the JJ Act, 2015. In respect of such adoptions, the requirements are considerably reduced, as set out in paragraph 64 above. A similar shortened procedure could be followed for issuance of an NOC in case of inter country adoptions which are already recognized under HAMA.

88. Thus, whenever any inter-country adoption takes place under HAMA and a NOC is required for any purpose, including for issuance of a passport or VISA, upon an application being filed before CARA, a special Committee would be appointed to verify the following particulars: a. The background and antecedents of the biological parents or Family background report and source verification of the child (or CWC certificate). b. Verify the consent of the biological parents and that of the child, if needed based upon the age and maturity, for the adoption; c. Details of any religious ceremony conducted; d. Details of the adoption deed and its genuinity/validity; e. Court order, if any, recognizing the adoption; f. Home Study Report of the prospective adoptive parents with support documents; g. Permission letter from receiving country or permission letter from Embassy of the receiving country in case of OCI/Foreigner.”

6. In substance, the stand of the respondent Nos. 1 and 2 is that in view of the aforementioned rules and procedures, the petitioner has been advised vide letter dated July 5, 2021 to produce NOC from CARA as the present case is inter-country W.P.(C) 8834/2021 Page 7 adoption. A short affidavit has also been filed by CARA wherein in paragraphs 4 to 10, the following has been stated: