Foreigners can't adopt child without NOC: SC

The Supreme Court has said that it is mandatory for a foreigner desirous of adopting children from India to furnish a no objection certification (NOC) and authorisation from their native country.

“A foreigner or a person of Indian origin or an overseas citizen of India who has habitual residence in India can apply for adoption of a child from India to CARA (Central Adoption Resource Authority) along with no objection certificate from the diplomatic mission of his country in India,” a bench of Justices Indira Banerjee and Ajay Rastogi said.

The court declined a plea by an Australian woman, Karina Jane Creed, to waive of the statutory requirement under Section 52(12) of the Juvenile Justice Act.

In her plea, Karina stated that she has been living in India for the last four years.

In 2016, she applied to CARA for the adoption of the two children, aged five and six respectively. Her application was registered and processed. Thereafter, she started visiting the children as well. But due to non-furnishing of a NOC, her plea was not allowed.

“From the averments in the petition as also pictures enclosed, it appears that the petitioner has built up a bond with the children who have also become very fond of the petitioner,” the court noted.

“There is little doubt that the petitioner would have brought up the children well, with love and affection and the children too would have been lucky to have the petitioner as an adoptive parent. We have every sympathy for the petitioner but regret our inability to help her,” the bench said.

The top court dismissed her special leave petition against a Delhi High Court's division bench judgement of May 28 whereby her plea was rejected since the Australian High Commission has not furnished its NOC to the adoption of the children in question.

The petitioner, for her part, contended at this stage that the NOC was not required and the children can be adopted in India. After adoption, a visa enabling permanent migration of the child to Australia would be granted and it was thereafter that formal adoption would take place in Australia as per the rules and system prevalent over there.

The apex court, however, pointed out both India and Australia are signatories to the Convention on Protection of Children and Cooperation in respect of Inter-Country Adoption held in Hague in 1993.

“Inter-country adoption requires certification with regard to the suitability of the adoptive parents to adopt the child, counselling of the prospective adoptive parents and authorization of the child to enter and reside in the receiving state,” it said.

So, a foreigner living abroad if interested to adopt an orphan or abandoned or surrendered child from India might apply to an authorised foreign adoption agency, or central authority or a concerned government department in their country of habitual residence, in the manner as provided in the adoption regulations framed by the CARA as provided in Section 59(3).

And, the authorised foreign adoption agency, or central authority, or concerned government department, of the foreign country has to prepare a home study report of the prospective adoptive parents and upon finding them eligible, sponsor their application to CARA for the adoption of a child from India, the court said.