Bombay High Court
Abdulkadir Lokhandwala And Anr vs The Central Adoption Resource Agency ... on 16 July, 2025
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2025:BHC-AS:29271-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6658 OF 2024
1. Abdulkadir Lokhandwala,
Aged about 41 years,
Occupation: Private Sector,
Nationality: Indian.
2. Zainab Abdulkadir Lokhandwala,
Aged about 36 years,
Occupation: Teacher,
Nationality: Indian,
Both residing at A-1001,
Archana Paradise Phase 1,
NIBM Road, Mohammedwadi,
Pune 411060. .....Petitioners
Vs.
1. The Central Adoption Resource
Agency,
Having its address at:
West Block - 8, Wing II,
2nd Floor, R.K.Puram, New Delhi
2. Union of India.
3. Principal Secretary,
Women and Child Welfare
Department, State of Maharashtra.
4. Indian Council for Social Welfare,
Mumbai.
5. Moiz Bootwala
Age about 37 years,
Occupation: Service, Permanently
residing at: 82/84, Clare House,
Gaikwad RD 1/27
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Clare Road, B Block, 2nd Floor,
Nagpada, Mumbai 400 008.
Presently residing at: 22040
Strathern St. #3 Canoga Park
CA 91304.
6. Maria Bootwala,
Age about 33 years, Permanently
residing at: 82/84, Clare House,
Clare Road, B Block, 2nd Floor,
Nagpada, Mumbai 400 008.
Presently residing at: 22040
Strathern St. #3 Canoga Park
CA 91304 .....Respondents
Ms. Shirin Merchant, with Ms. Stuti Oswal, for the Petitioners.
Mr. Y. S. Bhate, with Mr. Viraj Y. Bhate, for Respondent Nos.1 and 2.
Mrs. Neha Bhide, Government Pleader with Ms. P.J.Gavhane, AGP,
for Respondent-State.
Ms. Yugandhara Khanwilkar, for Respondent Nos.5 and 6.
CORAM : REVATI MOHITE DERE &
DR. NEELA GOKHALE, JJ.
RESERVED ON : 7th JULY 2025.
PRONOUNCED ON : 16th JULY 2025.
JUDGMENT:
- (Per Dr. Neela Gokhale, J.)
1. Rule. Rule made returnable forthwith. With the consent of
parties, the matter is taken up for final hearing.
2. By way of the present petition, the Petitioner brings to the
attention of this Court an unprecedented situation relating to the
applicability of the Juvenile Justice (Care and Protection of Children)
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Act, 2015 and the Adoption Regulations 2022 ("AR") framed under
the said Act, to the adoption of a child being a citizen of the United
States of America by relatives of the child's biological parents. Refusal
by the Central Adoption Resource Agency ("CARA") to register the
Petitioners as prospective adoptive parents on its "CARINGS" web
portal prompted the Petitioner to approach this Court seeking a
direction to Respondent No.1 to register them as prospective adoptive
parents on its CARINGS web portal and issue a pre-approval letter to
facilitate adoption of male minor child, Mohammed Moiz, by them.
3. The facts of the case reveal that Mohammed Moiz ("Baby
Moiz") was born to the Respondent Nos. 5 and 6 on 2 nd July 2019.
The Petitioners were married on 16 th September 2011. They are
Indian citizens, domiciled in India. The Petitioner No. 2 is the sister of
Respondent No.6. The Respondent Nos. 5 and 6 although Indian
citizens, are stated to be residing in California, USA. The Respondent
No.1 is the Central Adoption Resource Agency. CARA is constituted
under the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2015 ("JJ Act"). It is a regulatory authority in respect of
matters relating to in-country and inter-country adoptions and other
related matters.
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4. The Respondent No.2 is the Union of India and the
Respondent No.3 is the Principal Secretary of the Women and Child
Welfare Department. The Respondent No.4 is the Indian Council for
Social Welfare ("ICSW").
5. It is the case of the Petitioners that they were unable to
bear children and hence desirous of adopting baby Moiz from their
relatives namely, the Respondent Nos. 5 and 6. Baby Moiz was born in
the USA and hence is a US citizen, holder of a USA passport. The
Petitioners, with an intention to adopt Moiz, brought him to India on
12th October 2019. They contacted CARA to complete all the requisite
legal formalities to adopt Moiz. It is their grievance that CARA refused
to register the Petitioners on the ground that the Adoption Regulations
do not contemplate facilitating adoption of an American citizen. The
Petitioners professing Muslim religion, do not have a codified
enactment regulating adoption. Hence, they approached the District
Court, Pune by filing a Civil Miscellaneous Application No. 58/2021,
under the provisions of Section 56(2) of the JJ Act, under the category
of 'relative' adoption.
6. Pursuant to a 2021 amendment to the JJ Act which
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substituted the word 'Court' with 'District Magistrate', all the
Adoption matters were transferred to the DM. The said amendment
was challenged before this Court in Civil Writ Petition No. 1085 of
2023, and vide its order dated 10 th January 2023, this Court stayed
the said amendment and directed that the power to decide adoption
petitions shall remain vested with the District Court during the
pendency of the petition. Hence, the Civil Misc. Application relating
to adoption of baby Moiz was again transferred to the District Court,
Pune, for determination. The Application is yet pending on account of
CARA refusing to approve the said adoption and submit the requisite
Approval Letter. The Petitioner complains that USA authorities are
likely to refuse renewal of Moiz's passport, without a valid adoption
order and his stay in India may become illegal. In these circumstances,
the Petitioner has approached this Court for the reliefs as prayed in
the Petition.
7. Ms Shirin Merchant, learned counsel represented the
Petitioners. Mr Y. S. Bhate, learned counsel appeared for CARA and
the MoWCWD, State of Maharashtra. Ms Yugandhara Khanwilkar,
learned counsel, was appointed by this Court, vide order dated 21 st
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March 2025 to represent the Respondent Nos. 5 and 6 and Ms Neha
Bhide, the learned GP represented the State.
8. Ms Merchant submitted that the Adoption Regulations
applicable at the relevant time were Adoption Regulations of 2017.
She referred to various provisions of the JJ Act to canvass her case,
more particularly Section 56 of the JJ Act providing for adoption of a
child from a relative by another relative; Section 51 of the Adoption
regulations of 2017, contemplating the present adoption to be an in-
country adoption; and Section 55 of the JJ Act detailing the procedure
to be followed in such adoptions. According to Ms. Merchant, CARA
is unnecessarily treating the said adoption to be under Regulation 23
of the Adoption Regulations. She says that AR 23 is contained in
Chapter IV of the regulations which is titled 'Adoption Procedure for
Non Resident Indian, Overseas Citizen Of India Cardholder And
Foreign Prospective Adoptive Parents'. Thus she says, that the
provisions of AR 23 do not apply to the present case as the Petitioner
are Indian citizens not falling within the criteria of AR 23. She further
argues that the entire JJ Act is parent centric and the procedure to be
followed is based on the country of residence of the parents and not
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the child, while the jurisdiction of courts is where the child resides.
Since the child resides in India with the Petitioners, the question of
adopting the child as per USA laws does not arise.
9. Ms Merchant further submits that despite the Petitioners'
repeated pleas to CARA, no steps were taken to guide them and
CARA's only response was to refuse to register them on its portal to
facilitate the said adoption. She further asserts that since the
Petitioners are Indian citizens, residing in India, it is not possible for
them to complete any procedures in America. To the assertions made
by CARA, that it is bound by the provisions of the International
Hague Convention on Adoption of Children, to which India is a
signatory, Ms. Merchant submits that the provisions of the Hague
Convention are not applicable to private adoptions and only govern
institutional adoptions. Concluding her submissions, she says that
without prejudice to the other objections of CARA, it is always
possible for CARA to relax its guidelines and grant exception to any
provisions of the AR. She has placed on record certain cases in which
CARA has relaxed certain provisions in the interests of a child under
AR 63 of the AR. On a note to invoke empathy, she submits that the
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child is now 6 years of age and attending school in India. He is
required to travel to the USA every year to renew his Visa, failing
which he may become an illegal migrant in India and hence keeping in
view the child's stability, identity and future prospects, the Petition be
allowed and CARA be directed to give its clearance for the adoption.
10. Mr. Bhate, submits that while CARA being sympathetic of
the Petitioners' predicament, it is bound by the provisions of law for
the time being in force. He submits that neither the JJ Act nor the
Adoption regulations framed under it, apply to an adoption of a child
who is an American citizen and to which the JJ Act does not apply.
He explains the statutory procedure under the JJ Act and the
Adoption Regulations which is to be followed for adoption of a child.
He takes us through the relevant provisions of the JJ Act, the
Adoption Regulations and Article 5 and 17 of the Hague convention.
The substance of his argument is that neither the JJ act nor the AR
provide for a procedure for adoption of an American child by Indian
parents, which is neither a 'child in need of care and protection' nor a
'child in conflict with law'. AR 23 provides for a post adoption
procedure to be followed when a child is adopted by Indian parents in
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the country of origin of the child. Thus, CARA is unable to give its
clearance to such adoption, without the child first being adopted in
the USA under the laws applicable in that country. He concludes by
offering a solution to the Petitioners' dilemma inasmuch as either the
Petitioners can adopt the child in the US as per American laws or baby
Moiz can apply for Indian citizenship through the Petitioners, and
pursuant to surrender by his biological parents, his adoption can be
facilitated in India under the JJ Act and the prevailing Adoption
regulations. Otherwise, the present petition, he urges, must fail.
11. Ms Khanvilkar, learned counsel representing the biological
parents of Moiz i.e., the Respondent Nos 5 and 6 submits that the
present adoption falls under the ambit of in-country adoption and not
inter-country adoption as the Petitioners and the biological parents of
Baby Moiz are Indian citizens. The definition of in-country adoption
in JJ Act defines it as an adoption of a child by a citizen of India
residing in India and when read with the definition of "relative" in the
Act, it is clear that the present adoption is an in-country adoption
governed by AR 54. She supports the arguments of Ms. Merchant that
AR 23 is inapplicable. She further submits that in any case a procedure
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is a handmaiden of justice and in the eventuality that there is no
provision for such an adoption in the existing laws, it is the
responsibility of the regulator to provide for varied circumstances. She
submits that this is a fit case for CARA to exercise its discretion under
Adoption Regulation 63. Hence, in the best interests of the child, she
prays that the petition be allowed. She places reliance on the
decisions of this Court in the matter of Bronson Barthol Dias and
another vs CARA1. She also places Minutes of several meetings of
CARA when AR 63 was earlier invoked in cases when exceptions were
made to the provisions of the Regulations in the interests of a child.
She thus, joins Ms. Merchant in her prayer for grant of reliefs in the
petition.
12. Heard counsel for all the parties and have perused the
record and provisions of the applicable law with their assistance. We
have also gone through the decision cited by Ms. Khanwilkar.
13. Before adverting to the rival submissions canvassed on
either side, we must look into the scheme and various relevant
provisions of the J J Act 2015 as well as the Adoption Regulations
1 2025 SCC Online Bom 1117
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made and notified under the Act by CARA in exercise of the powers
conferred by Section 68(c) read with Section 2(3) the J J Act, 2015.
I) The Statement of objects and reasons of the J J Act 2015 reads
thus:
"An Act to consolidate and amend the law relating to children
alleged and found to be in conflict with law and children in
need of care and protection by catering to their basic needs
through proper care, protection, development, treatment,
social re-integration, by adopting a child-friendly approach in
the adjudication and disposal of matters in the best interest of
children and for their rehabilitation through processes
provided, and institutions and bodies established, herein
under and for matters connected therewith or incidental
thereto.
WHEREAS, the provisions of the Constitution confer powers
and impose duties, under clause (3) of article 15, clauses (e)
and (f) of article 39, article 45 and article 47, on the State to
ensure that all the needs of children are met and that their
basic human rights are fully protected;
AND WHEREAS, the Government of India has acceded on
the 11th December, 1992 to the Convention on the Rights of
the Child, adopted by the General Assembly of United
Nations, which has prescribed a set of standards to be
adhered to by all State parties in securing the best interest of
the child;
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AND WHEREAS, it is expedient to re-enact the Juvenile
Justice (Care and Protection of Children) Act, 2000 (56 of
2000) to make comprehensive provisions for children alleged
and found to be in conflict with law and children in need of
care and protection, taking into consideration the standards
prescribed in the Convention on the Rights of the Child, the
United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (the Beijing Rules),
the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty (1990), the Hague Convention on
Protection of Children and Co-operation in Respect of Inter-
country Adoption (1993), and other related international
instruments."
Emphasis supplied
II) The provisions of the J J Act reads thus:
Section 1
"1(1) This Act may be called the Juvenile Justice (Care and
Protection of Children) Act, 2015.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central
Government may, by notification in the Official Gazette, appoint.
(4) Notwithstanding anything contained in any other law for the
time being in force, the provisions of this Act shall apply to all
matters concerning children in need of care and protection and
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children in conflict with law, including --
(i) apprehension, detention, prosecution, penalty or
imprisonment, rehabilitation and social re-integration of children
in conflict with law;
(ii) procedures and decisions or orders relating to rehabilitation,
adoption, re-integration, and restoration of children in need of
care and protection."
Section 2(3) defines "adoption regulations" means the
regulations framed by the Authority and notified by the Central
Government in respect of adoption;
Section 2(13) "child in conflict with law" means a child who is
alleged or found to have committed an offense and who has not
completed eighteen years of age on the date of commission of
such offense;
Section 2(14) "child in need of care and protection" means a
child--
(i) who is found without any home or settled place of abode and
without any ostensible means of subsistence; or
(ii) who is found working in contravention of 2 [the provisions of
this Act or] labour laws for the time being in force or is found
begging, or living on the street; or
(iii) who resides with a person (whether a guardian of the child
or not) and such person--
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(a) has injured, exploited, abused or neglected the
child or has violated any other law for the time being
in force meant for the protection of child; or
(b) has threatened to kill, injure, exploit or abuse the
child and there is a reasonable likelihood of the threat
being carried out; or
(c) has killed, abused, neglected or exploited some
other child or children and there is a reasonable
likelihood of the child in question being killed,
abused, exploited or neglected by that person; or
(iv) who is mentally ill or mentally or physically challenged or
suffering from terminal or incurable disease, having no one to
support or look after or having parents or guardians unfit to take
care, if found so by the Board or the Committee; or
(v) who has a parent or guardian and such parent or guardian is
found to be unfit or incapacitated, by the Committee or the
Board, to care for and protect the safety and well-being of the
child; or
(vi) who does not have parents and no one is willing to take care
of and protect or who is abandoned or surrendered; (vii) who is
missing or run away child, or whose parents cannot be found
after making reasonable inquiry in such manner as may be
prescribed; or
(viii) who has been or is being or is likely to be abused, tortured
or exploited for the purpose of sexual abuse or illegal acts; or
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(ix) who is found vulnerable and 2 [has been or is being or is
likely to be] inducted into drug abuse or trafficking; or
(x) who is being or is likely to be abused for unconscionable
gains; or
(xi) who is victim of or affected by any armed conflict, civil
unrest or natural calamity; or
(xii) who is at imminent risk of marriage before attaining the age
of marriage and whose parents, family members, guardian and
any other persons are likely to be responsible for solemnization
of such marriage.
Section 2(52) "relative", in relation to a child for the purpose of
adoption under this Act, means a paternal uncle or aunt, or a
maternal uncle or aunt, or paternal grandparent or maternal
grandparent;
Section 56. Adoption.--(1) Adoption shall be resorted to for
ensuring right to family for the orphan, abandoned and
surrendered children, as per the provisions of this Act, the rules
made thereunder and the adoption regulations framed by the
Authority.
(2) Adoption of a child from a relative by another relative,
irrespective of their religion, can be made as per the provisions of
this Act and the adoption regulations framed by the Authority.
(3) Nothing in this Act shall apply to the adoption of children
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made under the provisions of the Hindu Adoption and
Maintenance Act, 1956 (78 of 1956).
(4) All inter-country adoptions shall be done only as per the
provisions of this Act and the adoption regulations framed by the
Authority.
(5) ....."
III) The relevant provisions of the Adoption Regulations are as
under:
"Regulation 2(12) "Hague Adoption Convention" means the
Hague Convention on Protection of Children and Cooperation in
Respect of Inter-country Adoption (1993);"
"Regulation 2(15) "in-country adoption" means adoption of a
child by a citizen of India residing in India;"
Chapter IV of the Regulations provide for procedure of
adoption for Non-resident Indian, overseas citizen of India
Cardholder and Foreign Prospective adoptive parents. AR 23
contained in Chapter IV provides for procedure for adoption of a
child from a foreign country by India citizen.
"Regulation 23 reads thus:
Procedure for adoption of a child from a foreign country by
Indian citizens.―
(1) Necessary formalities for adoption of a child from a foreign
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country by Indian citizens shall initially be completed in that
country as per their law and procedure.
(2) On receiving Home Study Report of the prospective adoptive
parents (including supporting documents), Child Study Report
and Medical Examination Report of the child, the Authority shall
issue the approval, as required in the cases of adoption of
children coming to India as a receiving country under Article 5 or
Article 17 of the Hague Adoption Convention.
(3) A child adopted abroad by the Indian citizens, having a
foreign passport, and requiring the Indian visa to come to India,
shall apply for visa or Overseas Citizen of India Card to the
Indian mission in the country concerned, who may issue entry
visa to the child after checking all the relevant documents so as to
ensure that the adoption has been done following the due
procedure.
(4) The immigration clearance for the child adopted abroad shall
be obtained from the Central Government in the Foreigner's
Division, Ministry of Home Affairs, through the Indian
diplomatic mission to that country."
Regulation 63 read thus:
"63. Power to relax and interpretation.―(1)The power of
relaxation and grant exception to any provision of these
regulations in respect of a case or class of cases shall be vested
with the Relaxation Committee of the Authority.
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(2) Relaxation Committee of the Authority shall be chaired by
the chairperson of Steering Committee of the Authority and two
members consisting of its Chief Executive Officer and a member
of Steering Committee having experience in law as members.
(3) No decision of the Relaxation Committee of the Authority
shall ordinarily have the effect of altering the seniority of any
prospective adoptive parents unless reasons are recorded in
writing and the primary consideration being the best interests of
the child.
(4) In case of any ambiguity in interpretation of any of the
provisions of these regulations, the decision of the Authority shall
prevail."
14. The statement of objects clearly states that the JJ Act 2015
was re-enacted to make comprehensive provisions for specified
children, taking into consideration the standard prescribed in various
conventions including the Hague convention on protection of children
and co-operation in respect of Inter country Adoption (1993). Further
a plain reading of the applicability provisions of the Act reveal that the
Act is applicable to all matters concerning 'children in need of care
and protection' and 'children in conflict with law'. Admittedly, Baby
Moiz does not fall within the definition of either a 'child in need of
care and protection' nor a 'child in conflict with law' as per the
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definitions in Section 2(13) and 2(14). Hence the provisions of the Act
insofar as governing his adoption is concerned, do not apply. Section
56 of the Act provides for ensuring right to family for an orphan,
abandoned and surrendered child, as per the provisions of this Act.
Sub-section 2 to Section 56 provides for adoption of a child from
relative by another relative, irrespective of their religion as per the
provisions of this Act. According to Ms. Merchant the adoption of
Moiz falls under this category and hence the Petitioners have applied
to the District Court, Pune seeking Moiz's adoption by the Petitioners.
However, for this adoption to be allowed by the Court, first and
foremost, the provisions of the JJ Act itself have to be applicable to
such adoption. Section 56(2) cannot operate independent of the J J
Act. A relative desirous of giving its child in adoption to another
relative must first relinquish the child for it to be a 'child in need of
care and protection'. It is only thereafter that Section 56(2) of the J J
Act providing for relative adoption can be invoked.
15. In exercise of powers conferred under clause 68(c) with
Section 2(3) of the J J Act, 2015 and in supersession of Adoption
Regulations 2017, the Regulations of 2022 are notified. Ms. Merchant
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has argued that the relevant Regulations applicable to the present
adoption is that of 2017. However, as Mr. Bhate points out there is no
substantial amendment to the 2017 Regulations relevant to the facts in
the present case in the Regulations of 2022. The relevant regulation
applicable to the present case is AR 23. We have perused AR 23. It
provides for a post-adoption procedure in terms of bringing the
foreign child adopted by Indian parents into India. In terms of AR 23,
the Petitioners are required to complete all the necessary formalities of
adopting Moiz from USA as per American laws and procedure. Once
the adoption formalities are complete as per US laws, the Indian
Mission is USA is bound to issue entry visa to the child. The
Petitioners were always at liberty to adopt this legal and regular
procedure to adopt Moiz. However, for some reason, the Petitioners
are reluctant to follow this procedure and process the adoption
application in America as per the US laws.
16. Ms. Merchant insists that the present adoption must be
treated as 'In-country' adoption which is an adoption of a child by a
citizen of India residing in India. Albeit, the definition is silent
regarding the citizenship of the adoptee child, the definition cannot be
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interpreted without reference to other related provisions. Firstly, the
child in question in neither a 'child in need of care and protection' nor
a 'child in conflict with law'. Hence the JJ Act itself does not apply to
the adoption of Moiz. Moreover, the expression 'in-country' adoption
is defined in the Adoption Regulations. These Regulations are notified
by CARA in exercise of powers conferred upon it under Section 68(c)
read with Section 2(3) of the J J Act. These regulations are delegated
legislation. The Regulations thus, cannot travel beyond the scope of
the parent Act, i.e., the J J Act. It is presumed that the Regulations are
aligned with its parent Act, lest the said regulations become invalid. At
this stage, it is apposite to state about the Rule/Regulation making
power of a delegating authority. If a Rule/Regulation goes beyond the
regulation making power conferred by the statute, the same has to be
declared 'invalid'; if the Rule/Regulation supplants any provisions for
which the power has been conferred, it becomes 'invalid'. A Rule/
Regulations must be in accordance with the parent statute, as it cannot
travel beyond it. It is not anybody's case that Regulation 2(15) relating
to 'in-country' adoption is invalid. Thus, even if the present adoption
is treated as an in-country adoption, the same has to follow the
provisions of the parent Act and its applicability. Thus in-country
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adoption must also be construed to be that of a 'child in need of care
and protection' or a 'child in conflict with law'. As mentioned above,
Moiz is neither.
17. We perused the decision of this Court cited by Ms.
Khanwilkar. The decision is pertaining to the relaxation powers of
CARA is not applicable to the facts in the present case. Even the
minutes of CARA meetings indicating several cases in which CARA
relaxed some provisions in the interests of the child concerned does
not assist the present case. The exceptions made were in the context of
children to which the act applies and in the peculiar facts of those
cases. We do not find any discrimination made by CARA in this
regard.
18. Regarding the submissions of Ms. Merchant that the
covenants of the Hague Commission are inapplicable to the present
case, it is an admitted position that India is a signatory to the Hague
Convention. We have perused Article 5 and 17 relied upon by Mr.
Bhate. Article 5 reads thus:
"An adoption within the scope of the Convention shall take place
only if the competent authorities of the receiving State-
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a)...
b)...
c) have determined that the child is or will be authorised to enter
and reside permanently in that State."
Article 17 read thus:
" Any decision in the State of origin, that a child should be
entrusted to prospective adoptive parents may only be made if -
a)...
b)..
c)..
d)it has been determined in accordance with Article 5, that the
prospective adoptive parents are eligible and suited to adopt and
that the child is or will be authorised to enter and reside
permanently in the receiving State."
19. Both the Articles in the Hague Convention require the
competent authorities of a receiving State to determine that the child
will be allowed to permanently authorised to enter and reside
permanently in the receiving State. The receiving State in the present
adoption is admittedly India. Hence the Indian authorities must be in
a position to give such a declaration. Permission to reside in India
permanently can be assured only if the child is an Indian citizen.
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Under the present regime of laws, the authorities cannot be expected
to guarantee permanent permission to Moiz to enter and exit India, if
he continues to remain a US citizen. His entry and exit in India is
determined by the Foreigners Act, 1946 and related Rules and
Regulations issued by the Government of India from time to time.
Without this assurance, CARA cannot be expected to grant approval
and issue NOC for the said adoption.
20. Ms. Merchant has placed reliance on Article 22 & 23 of
the Special Commission on the practical operation of the Hague
Convention of 1993 on Protection of Children and Co-operation In
Respect of Inter-country Adoption 2010. Article 22 and 23 read thus :
"22.Adoptions which are arranged directly between birth parents
and adoptive parents (i.e.,private adoptions) are not compatible
with the Convention.
23.Independent adoptions, in which the adoptive parent is
approved to adopt in the receiving State and, in the State of
origin, locates a child without the intervention of a Central
Authority or accredited body in the State of origin, are also not
compatible with the Convention"
21. We have perused the entire 'Conclusions and
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Recommendations' adopted by the Special Commission in which is
contained Article 22 &23 as canvassed by Ms. Merchant.
Unfortunately, the interpretation of Ms. Merchant of Article 22 and
23 cannot be further away from being accurate. In fact the 2010
Conclusions of the Special Commission on the practical operation of
Hague Convention supplements the 1993 convention. The same is to
prevent, in the context of inter-country adoption, the abduction, sale
and traffic in children and their illicit procurement. It is in this context
that the word 'compatible' in Article 22 and 23 is used and must be
interpreted. The Articles provide that private and relative inter-
country adoption is incompatible with the convention. Ms. Merchant
requires us to interpret the word 'compatible' as 'covered' or
'applicable' by the convention. In fact the convention specifically and
categorically provides that such private and relative adoptions are not
considered to be within the realm of authorised adoptions, by
following the procedure established by the laws of the receiving State.
Hence we have no hesitation in rejecting the interpretation of Ms.
Merchant of Articles 22 and 23 of the Special Commission.
22. In view of the aforesaid discussion, it is clear that there is
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no provision in the JJ Act nor the Adoption Regulations providing for
adoption of a child of foreign citizenship even between relative unless
the 'child is in need of care and protection' or a 'child is in conflict
with law.' One of the plea of the Petitioner and Respondent Nos. 5
and 6 seems to be that in the absence of any provision in the JJ Act or
the Regulations, this Court under its extra ordinary jurisdiction is
vested with the power to allow such an adoption and issue directions
to CARA. This proposition is stated only to be rejected. There is no
fundamental right of the petitioners to adopt an American Child,
which child does not fall within the applicability of the J J Act and the
Regulations thereunder, even if he is born to Indian parents. Neither is
there any violation of any fundamental right of the child of American
Nationality to be adopted by an Indian citizen. The predicament of the
Petitioner can be easily resolved in a manner suggested by CARA, i.e.,
for the child to apply for Indian citizenship under the Citizenship Act,
1955 and then follow the procedure under the J J Act or to process
the adoption in US under the applicable laws of that country. We
placed the said suggestion for the Petitioners' consideration, however,
the Petitioners were not inclined to accept the same. We leave it at
that.
901-wp-6658-2024-J.doc
23. In view of the foregoing, we are not inclined to allow the
petition. The petition is dismissed.
24. Rule is accordingly discharged.
(DR. NEELA GOKHALE, J.) (REVATI MOHITE DERE, J.)
Signed by: Raju D. Gaikwad
Designation: PS To Honourable Judge
Date: 16/07/2025 19:19:31
