February 26, 2019:
On Monday, the Bench of Justices Ashok Bhushan and K.M. Joseph holds, Statutory procedure which is relevant as on date, applicable to all aspirants i.e, Indian prospective adoptive parents and prospective adoptive parents for inter-country adoption, cannot lose sight.
The Juvenile Justice (Care and Protection of Children) Act, 2015, Chapter VIII deals with adoption.
Facts: The respondent Nos.1 and 2 submitted their application as prospective adoptive parents living in India.
Although, on the date of submission of application, respondent No.2 was already a US citizen, the respondent No.1 being Indian citizen, the application was fully maintainable as per the provisions of Regulations and as per the guidelines applicable at the relevant time as Indian prospective adoptive parents.
Even Regulation 21(1) of Regulations, 2017 provides that if one of the prospective adoptive parents is foreigner and other is an Indian, such case shall be treated at par with Indians living in India.
But, by 06.12.2016, both had become US citizens. They were held not eligible for adoption as Indian prospective adoptive parents living in India.
Issue: Whether the factum of respondent No.1 acquiring US citizenship on 06.12.2016 should be ignored for the purposes of adoption or not is the question, which is addressed and answered in these appeals.
Observation: Regulation 41 or any other Regulation does not contemplate a situation when a resident Indian after acquiring the foreign citizenship submits a fresh registration, what is the consequence and value of its first registration. Even though regulations are silent and do not provide for any mechanism or any answer to such fact situation, the natural consequences of acquiring foreign citizenship shall follow.
Therefore, the right of respondent Nos. 1 and 2 for adoption as resident Indian is lost after respondent No.1 having acquired the US Citizenship on 06.12.2016.
Further, it is observed that Section 58 and 59 provides for two different mechanisms for adoption. As per Section 59(1), if an orphan or abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective adoptive parents despite the joint effort of the Specialised Adoption Agency and State Agency within sixty days from the date the child has been declared legally free for adoption, such child shall be free for inter-country adoption.
Thus, sixty days period has to be elapsed from the date when the child has been declared legally free for adoption.
In the present case, child was declared free for adoption on 14.12.2017 by Child Welfare Committee, Patna, Bihar. Before expiry of sixty days, child could not have been offered for adoption to parents, who are eligible for adoption under Section 59.
As per Section 57, both the respondent Nos.1 and 2 are fully eligible and competent to adopt the child. It was under these circumstances that the child was offered to respondent Nos.1 and 2, who rightly communicated their acceptance and communicated with the child and are willing to take child in adoption and to take all care and provide good education to her.
The Bench has "....no doubt in the competence of respondent Nos.1 and 2 in their effort to take the child in adoption, but the statutory procedure and the statutory regime, which is prevalent as on date and is equally applicable to all aspirants, i.e., Indian prospective adoptive parents and prospective adoptive parents for inter-country adoption, which cannot lose sight."
The Bench holds, by virtue of Section 59(2), the respondent Nos.1 and 2 can at best may be given priority in inter-country adoption, they being eligible as overseas citizens of India.
Therefore, in view to meet the ends of justice, the Bench holds;
- Judgments of learned Single Judge as well as of Division Bench in so far as it directs to consider and examine the application of respondent Nos. 1 and 2 on the basis of first registration dated 19.07.2016 are set aside.
- That in event, within sixty days from the date the child is declared as legally free for adoption is not taken by or adopted by Indian prospective adoptive parents, the said child shall be given in adoption to the respondent Nos.1 and 2 in inter-country adoption.
Read Judgment @ LatestLaws.com
UNION OF INDIA & ANR. Vs. ANKUR GUPTA & ORS. _25-Feb-2019(Downloadable PDF)
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