Bombay HC Clears Path For Navi Mumbai Couple To Take Adopted Child To Australia, Resolves Inter-Country Adoption Legal Hurdle

Mumbai, April 3: Emphasising that “adopting one child will not change the world, but for that child, the world will change,” the Bombay High Court has cleared the way for a couple to take their adopted daughter to Australia, resolving a legal tangle involving inter-country adoption rules.

Case involves inter-country adoption complexities

A bench of Justices Ravindra Ghuge and Abhay Mantri was hearing a petition by a Navi Mumbai-based couple, both aged around 44, who had adopted a 45-day-old girl in April 2023 under the Hindu Adoptions and Maintenance Act, 1956 (HAMA).

The child was the third daughter of the adoptive mother’s close relatives, who already had two children and described the pregnancy as unplanned.

Adoption formalised but visa hurdles arise

On April 21, 2023, the adoption was formalised through a registered deed in Thane, and the child’s documents, including her passport, reflected the names of the adoptive parents. At the time of adoption, the father had already acquired Australian citizenship, while the mother was still an Indian citizen. She later became an Australian citizen.

However, the couple faced hurdles when attempting to secure an Australian adoption visa. Australian authorities termed the arrangement an “expatriate adoption” and clarified that it fell outside the framework of the Hague Convention on Intercountry Adoption, meaning it would not automatically be recognised under their inter-country adoption process.

CARA stance and court observations

Meanwhile, India’s Central Adoption Resource Authority (CARA) maintained that the case fell under inter-country adoption rules governed by the Adoption Regulations, 2022, particularly Regulation 68, since one parent was an Overseas Citizen of India (OCI).

The High Court noted that while Regulation 68 ordinarily applies to such cases, the present matter involved “peculiar facts”, including a relative adoption already legally completed under HAMA.

“These events now cannot be reversed only because the procedure under Regulation 68 was not followed. We have to consider the future of the adopted baby as well,” the bench observed in a detailed 54-page judgment.

Adoption upheld as legally valid

Importantly, the court held that the adoption itself was valid under Indian law. It also took into account the Australian authority’s stand that the case was not being treated as an inter-country adoption under the Hague Convention. As a result, the court said the Convention’s requirements, including Articles 5 and 17, would not apply.

Focus on child’s welfare

Highlighting the emotional and practical realities, the court noted that if the child is not permitted to be taken to Australia because of technicalities, the adoption would fail, adding that there was no illegality in the adoption under HAMA.

The judges added that this case has to be “navigated through complex laws, to bless the adopted child with the love and care of the adoptive parents”.

Court notes parents’ sincerity

The court also remarked that there was no doubt in the adoptive parents’ sincerity, considering that the mother has stayed back in India despite acquiring Australian citizenship.

“The adoptive mother is living in India for the last about 3 years, only to care for the adopted child, though she is now a citizen of Australia. No body needs to be convinced of the sincerity and purity of the feelings of the adoptive parents,” the court added.

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Directions to resolve impasse

To resolve the impasse, the court directed the District Magistrate to verify within 30 days that the adoption complied with HAMA.

Once the verification certificate is issued, CARA has been directed to grant a No Objection Certificate within 15 days and inform immigration authorities in both India and Australia. The petition was accordingly disposed of.

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