Bombay High Court Intervenes in Adoption Visa Crisis for Australia-Bound Couple
In a landmark ruling, the Bombay High Court has stepped in to assist a couple facing significant legal obstacles in relocating their adopted daughter to Australia, despite a valid adoption under Indian law. The couple, both aged 44, adopted a relative's third child in April 2023 under the provisions of the Hindu Adoption and Maintenance Act (HAMA). At the time of adoption, the child was merely 45 days old, with the wife holding Indian citizenship and the husband having recently acquired Australian citizenship just two months prior. The wife later also became an Australian citizen, further complicating their situation.
Legal Hurdles and Australian Immigration Challenges
However, Australian authorities refused to recognize the adoption as an inter-country adoption, citing that children adopted outside the Hague Convention on Intercountry Adoption process are not automatically accepted. This stance left the mother and child stranded in India for an agonizing three years, unable to reunite with the father in Australia. The Australian authorities pointed to specific migration requirements, including special visas and citizenship pathways for adopted children, which the couple had not fulfilled due to the non-Hague process.
Court's Directive and Regulatory Framework
On March 30, Justices Ravindra Ghuge and Abhay Mantri of the Bombay High Court disposed of a petition filed by the couple last year, seeking judicial intervention. The court directed the couple to approach the district magistrate to obtain a certification for their adoption, invoking the 2022 rules that govern adoptions in India. The court mandated that once the district magistrate issues a verification certificate within 30 days, the Central Adoption Resource Authority (CARA) must issue its No Objection Certificate (NOC) within 15 days. This CARA nod is crucial for inter-country adoptions and would be communicated to both Indian and Australian immigration authorities.
The High Court emphasized that Australian authorities required appropriate scrutiny and clearance from Indian authorities, specifically CARA, to proceed. In response, CARA cited Section 68 of the Adoption Regulations, 2022, which applies to inter-country HAMA adoptions, noting that the adoptive father was an Australian citizen with Overseas Citizen of India (OCI) status. CARA stated it could not regularize any aspect of the adoption unless the couple complied with the 2022 regulations for relocating a child adopted under HAMA to a foreign country.
Legal Arguments and Court's Rationale
Senior counsel Anil Anturkar, representing the adoptive parents, argued that this was not a case of inter-country adoption and questioned CARA's objections. He contended that Regulation 69 of the Adoption Regulations, which pertains to concluded HAMA adoptions, should apply. Australian authorities had previously termed it an expatriate adoption, but the High Court noted there is no provision defining this term in the Juvenile Justice Act or the Adoption Regulations 2022, though the adoption was legally valid under HAMA.
After hearing advocate YR Mishra for the Centre, the High Court held that in these peculiar circumstances, the process under Section 69 would be applicable. The court cited prior Supreme Court rulings, stating that Regulation 69 prescribes the adoption process for cases already concluded under HAMA and must be read as applicable here. While ideally, the petitioners should have followed Regulation 68 for inter-country adoptions, the court acknowledged that the process cannot be reversed and must consider the future of the adopted baby.
Court's Compassionate Stance and Final Ruling
The High Court ruling, made available late Thursday, also noted that the mother had twice earlier filed petitions on wrong advice that led nowhere. Justice Ghuge, who authored the judgment, observed the adoptive parents' dedication, navigating complex laws to provide love and care for their child. The court warned that if the child is not permitted to go to Australia due to technicalities, the adoption would fail, highlighting the sincerity and purity of the adoptive parents' feelings. This intervention underscores the judiciary's role in balancing legal technicalities with humanitarian concerns in cross-border adoption cases.
