Foreigner Should Get NOC From Diplomatic Mission Of His/Her Country To Adopt An Indian Child: Supreme Court

The Supreme Court has observed that the requirement of “No Objection Certificate” from the diplomatic mission of the country where the foreigner or the person requesting adoption resides, under Section 59(12) of the Juvenile Justice (Care and Protection of Children) Act, 2016, cannot be waived. Karina Jane Creed had approached the Apex Court after the Delhi High Court dismissed her writ Petition seeking a direction to the Central Adoption Resource Authority (“CARA”) to issue a No Objection Certificate for adoption of two children.

Her contention was that, though she applied for adoption of Indian children in the year 2016, it has been withheld on account of want of NOC by the Australian authorities. According to her, under the Australian law, for the purpose of adopting an Indian child, NOC is not to be insisted upon. As per the Australian law, an Australian citizen can bring a child which has been adopted by him/her and thereafter based on the visa granted after adoption as per Indian Laws, action is taken by the Australian Government. It was also contended that the insistence upon NOC from the Australian authorities even before adoption, is not tenable. The High Court rejected these contentions and dismissed the writ petition. It was held that, as the Australian High Commission has not furnished its NOC to the adoption of the children in question, the Court cannot interfere into the matter.

Upholding this view, the bench comprising Justice Indira Banerjee and Justice Ajay Rastogi observed that, as per Section 59(2), 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 along with No Objection Certificate from the diplomatic mission of his country in India. It said: “In view of the statutory provisions of the JJ Act and in particular Section 59(12) thereof the relief prayed for in the writ petition cannot be granted.

The writ Court could not have waived the statutory requirement of Section 59(12) of the JJ Act.” As regards the submission that she has already built up a bond with the children who have also become very fond of her, the bench said: “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.”

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