Kerala High Court
Lijo Stephen Chacko vs The Union Of India on 4 February, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:8856
W.P(C)No.1998/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 4TH DAY OF FEBRUARY 2025 / 15TH MAGHA, 1946
WP(C) NO. 1998 OF 2025
PETITIONER:
LIJO STEPHEN CHACKO
AGED 47 YEARS
S/O THOPPIL CHACKO, KOITHRA, CHINGAVANAM P.O,
ASANPADI, KOTTAYAM, PIN - 686531
BY ADVS.
K.N.ABHILASH
SUNIL NAIR PALAKKAT
RISHI VARMA T.R.
RITHIK S.ANAND
N.K.SHEEBA
V.SREEJITH
K.M.TINTU
ANU PAUL
SREELAKSHMI MENON P.
SREEJITH A.
RESPONDENTS:
1 THE UNION OF INDIA
REP. BY PRINCIPLE SECRETARY, MINISTRY OF WOMEN
AND CHILD DEVELOPMENT, GOVT. OF INDIA, NEW DELHI,
PIN - 110001
2 CENTRAL ADOPTION RESOURCE AUTHORITY,
REP. BY ITS MEMBER SECRETARY AND CEO OF THE CARA,
B-12, QUTUB INSTITUTIONAL AREA, NEW DELHI, PIN -
110016
3 THE CHIEF EXECUTIVE OFFICER
CARA, B-12, QUTUB INSTITUTIONAL AREA, NEW DELHI,
PIN - 110016
OTHER PRESENT:
DSGI SRI.T.C.KRISHNA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.02.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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W.P(C)No.1998/2025 2
"C.R"
C.S.DIAS,J
--------------------------------------------
W.P.(C).No. 1998 of 2025
---------------------------------------------
Dated this the 4th day of February, 2025
JUDGMENT
Justice P.N. Bhagwati, who spoke for the bench in the
celebrated case of Lakshmi Kant Pandey v. Union of India
[(1984) 2 SCC 244], wherein the Hon'ble Supreme Court laid
down normative and procedural safeguards for inter-country
adoptions, cited John Milton's words from Paradise Regained:
"Child shows the man as morning shows the day." The quote
summarises the significance of a child in a man's life.
2. The petitioner and his wife are the proud parents of a
five-year-old adopted son. In their desire to give companionship
for their son and have a daughter in their life, on 02.02.2021,
they got registered on the designated portal of the Central
Adoption Resource Agency ― the 2nd respondent ― named
Child Adoption Resource Information and Guidance System
(abbreviated as 'CARINGS'). The petitioner was assigned with
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registration No. PrKA185999522. Recently, the 2nd respondent
sent the petitioner the profiles of two children from Maharashtra
and Karnataka. As the petitioner is a resident of Kerala, he
believed that if he is referred to a child from Kerala, it would be
easier to complete the adoption process. Accordingly, the
petitioner chose to defer the acceptance of the first two referrals.
On 11.11.2024 at 10. p.m., the 2nd respondent sent Ext.P1 E-mail
referring the profile of a third child. The petitioner was instructed
to log in to the CARINGS platform and reserve the child within
48 hours. As this was the third referral, it was necessary for the
petitioner to accept the child. However, the child's medical
examination report was not accessible on CARINGS. The
petitioner promptly sent Ext.P2 email to the Specialised Adoption
Agency, where the child resided, requesting the medical
examination report. The petitioner received the medical
examination report via Ext.P3 E-mail on 12.11.2024 by 5.58 p.m.
After reviewing both the child study report and the medical
examination report, the petitioner intended to reserve the child.
Nonetheless, before the petitioner could complete the process,
on 14.11.2024 at 09.36 a.m., the petitioner received Ext.P4 E-
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nd
mail from the 2 respondent indicating that the child's profile was
removed from the petitioner's page. Following this, the petitioner
sent Exts.P5 to P10 emails to the 2 nd respondent, explaining the
reason that precluded him from reserving the child's profile within
48 hours from Ext.P1 E-mail. Shockingly, the 3rd respondent sent
Ext.P11 reply, stating that, since the petitioner had failed to
reserve any of the three children referred to him, he and his wife
were debarred for one year and, thereafter, they would be
eligible for fresh registration as contemplated under Regulation
9(3) of the Adoption Regulations, 2022 ('Regulations', for
brevity). A reading of Ext.P11 order establishes that the 3 rd
respondent has passed the same without any application of
mind. It is critical to note that the 48-hour period should have
been calculated only from the time the petitioner received the
child's medical examination report as per Ext.P3 E-mail, which is
a mandatory document as per Regulation 11 (17). Respondents
2 and 3 have failed to consider this crucial aspect. Exts.P4 and
P11 are illegal and arbitrary. Hence, the orders may be quashed,
and the petitioner may be given another opportunity to adopt a
child.
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3. Heard; Sri. Abhilash. K.N, the learned counsel for the
petitioner and Sri. T.C. Krishna, the learned Deputy Solicitor
General of India for the respondents.
4. The learned Counsel for the petitioner assiduously
argued that the actions of respondents 2 and 3 were arbitrary
and high-handed. The petitioner and his family have been
agonisingly waiting to adopt a child for the last four years. It is
only because the medical examination report was not available
on CARINGS that the petitioner could not exercise his option to
reserve the profile of the referred child. The 48 hours can only be
calculated from 17:58 hours of 12.11.2024, i.e., from Ext.P3 E-
mail. Respondents 2 and 3 have removed the child's profile from
the petitioner's page and debarred him and his wife for one year.
Therefore, they will have to apply for fresh registration, meaning
they will have to wait for at least another four years to be
referred with another child. Respondents 2 and 3 have taken the
extreme step of debarring the petitioner without addressing his
explanation in Exts.P5 to P10 E-mails and without affording him
an opportunity to be heard. The actions of the respondents are in
violation of the principles of natural justice. Hence, the
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respondents may be directed to refer the profile of one more
female child.
5. The learned Deputy Solicitor General of India
strenuously opposed the writ petition. He defended the actions of
the respondents. He contended that respondents 2 and 3 have
acted in consonance with the Regulations. Since the petitioner
did not reserve the profile of the third referred child within 48
hours as stipulated in Ext.P1 email and the Regulations, the 2 nd
respondent removed the child's profile and debarred the
petitioner for a year as per the mandate under Regulation 9 (3).
There are over 32,000 prospective adoptive parents eagerly
waiting to adopt a child. The petitioner cannot be finicky about
choosing a child. There is no arbitrariness in the actions of the
respondents. Moreover, as per Regulation 62, the petitioner has
a remedy of appeal against Ext.P11 order before the 2 nd
respondent. The writ petition sans substance and, therefore, may
be dismissed.
6. The Juvenile Justice (Care and Protection of
Children) Act, 2015 ('Act', for brevity) enables any person to
adopt a child as per provisions contained in Chapter VIII of the
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Act and the Rules and Regulations formulated thereunder.
Section 2 (2) of the Act defines 'adoption'.
7. Regulation 10 delineates the procedure to be followed
by resident Indians to adopt a child, while Regulation 11
provides how a child is referred to prospective adoptive parents.
It is necessary to extract the relevant portion of Regulation 11,
which reads as follows:
"11. Referral of a child from a Specialised Adoption Agency through
the Designated Portal to prospective adoptive parents.―
(1) The seniority of the prospective adoptive parents for child referral shall be
from the date of completion of registration process on the Designated Portal.
(2) On the basis of seniority, the prospective adoptive parents shall be
referred maximum three referral with one month interval in between two
consecutive referrals subject to availability of children through the
Designated Portal which shall include their photographs, Child Study
Report and Medical Examination Report, in their preference category, if
any, from one or more Specialised Adoption Agencies.
(3) After viewing the profile of the child or children on the Designated
Portal, the prospective adoptive parents may reserve the child or children
within a period of forty-eight hours for possible adoption and the
unreserved child or children shall be released by the Designated Portal for
other prospective adoptive parents in the waiting list".
8. The seniority of the prospective adoptive parents is
determined under Regulation 44, the relevant portion which
reads as follows:
"44. Seniority of the prospective adoptive parents.―(1) The resident
Indian or non-resident Indian or Overseas Citizen of India Cardholder
prospective adoptive parents based on states specific and cluster specific choice
shall be referred children on the basis of seniority which shall be from the date of
registration and other criteria as stipulated under these regulations while the
foreign prospective adoptive parents shall be provided referrals on the basis of
'anywhere in India'.
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(2) In case prospective adoptive parents residing in India are not
willing to take the referred child for any reason, the child shall be automatically
referred to the next waiting prospective adoptive parents in the waiting list after
expiry of forty eight hours of the reservation period.
(3) In case prospective adoptive parents residing abroad are not willing to take
the referred child for any reason, the child shall be automatically referred to the
next waiting prospective adoptive parents in the waiting list after expiry of ninety
six hours of the reservation period.
(4) The seniority of resident Indians shall be based on the date of online
registration and submission of the documents, except for Home Study Report, on
the Designated Portal".
9. Regulation 9(3) deals with debarring a prospective
adoptive parent, which reads thus:
"9 (3) When resident Indian or non-resident Indian or Overseas Citizen of
India Cardholder prospective adoptive parents do not reserve a child, out of
three referrals, such parents shall be debarred for a period of one year, after
which they shall be eligible for fresh registration and the foreign prospective
adoptive parents shall also be debarred for a period of one year if they do not
reserve a child out of two referrals".
10. On 02.02.2021, the petitioner and his wife registered on
the CARINGS platform to adopt their second child. They were
referred with the profiles of two children, which they did not
reserve. On 11.11.2024 at 22:00 hours, the 2 nd respondent
referred the profile of a third child to the petitioner and instructed
him to reserve the profile within 48 hours, that is, on or before
13.11.2024 at 22:00 hours. Although the petitioner logged in to
CARINGS, the child's medical examination report was
inaccessible. Therefore, he sent Ext.P2 E-mail to the Specialised
Adoption Agency requesting the child's medical examination
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report, which was forwarded by Ext.P3 email only on 12.12.2024
at 17:58 hours. Regrettably, after the petitioner reviewed the
medical examination report and before he could reserve the
child, the 2nd respondent removed the child's profile on
14.11.2024 at 9:36 hours, which is well before the expiration of
the 48-hour deadline following the receipt of Ext.P3 E-mail. In
addition to this removal, the 3 rd respondent has debarred the
petitioner and his wife for a year, stipulating that they would have
to apply for a fresh registration.
11. Section 59 (6) of the Act explicitly provides that the
Specialised Adoption Agency will match a child with the
prospective adoptive parents by providing them with both the
child study report and medical report. It is also pertinent to refer
to Regulations 7 (18) and (19), which read as follows:
"7 (18) The Child Study Report and Medical Examination Report of the
surrendered child shall be prepared and posted on the Designated Portal by the
Specialised Adoption Agency, within ten days from the date the child is declared
legally free for adoption, in the format in the Schedule II and Schedule III of these
regulations respectively.
(19) The Child Study Report and Medical Examination Report shall be
made available in English (apart from the regional language of the concerned
area) and the District Child Protection Unit shall facilitate the Specialised
Adoption Agency in uploading the Child Study Report and Medical Examination
Report on the Designated Portal, in case the Specialised Adoption Agency is
facing any technical difficulty".
12. The afore-quoted provisions make it mandatory that the
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child study report and medical examination report of a child
declared legally free for adoption be uploaded on CARINGS.
Prospective adoptive parents can be expected to express their
preference only after reviewing the reports, especially when they
are not permitted to see the child physically.
13. In the present case, Ext.P3 email unequivocally
substantiates that the medical examination report was
unavailable on CARINGS. The report was only subsequently
sent by the Specialised Adoption Agency at 17:58 hours on
12.11.2024. Despite this, the 2nd respondent removed the child's
profile from the petitioner's page before the expiry of 48 hours,
i.e., at 9:36 hours on 14.11.2024. Therefore, the petitioner's
contention that Ext.P4 and P11 orders are arbitrary is well-
founded because the 48-hour period started only from the time
the petitioner received Ext.P3. Furthermore, a reading of
Ext.P11 order shows that the 3 rd respondent has not adverted to
any of the contentions raised in Exts.P5 to P10 E-mails. Ext.P11
order only says that since the petitioner did not reserve the child
within 48 hours, the child's profile is removed from the
petitioner's page, and he and his wife are debarred for a year.
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Undeniably, the petitioner and his wife have been debarred
without being afforded an opportunity to be heard, which again is
against the elementary principles of natural justice.
14. Reason is the soul of every order. In State of Orissa v.
Dhaniram Luhar [(2004) 5 SCC 568], the Hon'ble Supreme
Court has held as under:
"7. Reason is the heartbeat of every conclusion. It introduces clarity in an
order and without the same it becomes lifeless. (See Raj Kishore Jha v. State of
Bihar [(2003) 11 SCC 519 : 2004 SCC (Cri) 212] .)
8. Even in respect of administrative orders, Lord Denning, M.R. in Breen
v. Amalgamated Engg. Union [(1971) 2 QB 175 : (1971) 2 WLR 742 : (1971) 1
All ER 1148 (CA)] observed (All ER p. 1154h): 'The giving of reasons is one of
the fundamentals of good administration.' In Alexander Machinery (Dudley) Ltd.
v. Crabtree [1974 ICR 120 (NIRC)] it was observed:
'Failure to give reasons amounts to denial of justice. Reasons are live
links between the mind of the decision-taker to the controversy in question and
the decision or conclusion arrived at.'
Reasons substitute subjectivity by objectivity. The emphasis on recording
reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can,
by its silence, render it virtually impossible for the courts to perform their
appellate function or exercise the power of judicial review in adjudging the
validity of the decision. Right to reasons is an indispensable part of a sound
judicial system, reasons at least sufficient to indicate an application of mind to
the matter before court. Another rationale is that the affected party can know why
the decision has gone against him. One of the salutary requirements of natural
justice is spelling out reasons for the order made, in other words, a speaking-out.
The 'inscrutable face of the sphinx' is ordinarily incongruous with a judicial or
quasi-judicial performance."
15. It is to be borne in mind that we are not dealing with a
commercial dispute to stick to the strict rigour of time; instead,
we are dealing with an adoptive couple's feelings, whose
profound desire for a child has persisted agonisingly for the past
four years. This is a matter that has to be dealt with with
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empathy, humane consideration and a holistic perspective that
resonates with the anxiety of an adoptive couple rather than
sticking to procedural rigidity and its pedantic interpretations.
Matters pertaining to children cannot be confined to the four
corners of legal technicalities; they demand a compassionate
and progressive approach that prioritises the child's best
interest.
16. The petitioner has provided a reasonable and justifiable
explanation for failing to respond within the 48-hour deadline as
stipulated in Ext.P1 E-mail. The third respondent in Ext.P11
order has not addressed the petitioner's contentions; instead, the
child's profile has been removed, and the petitioner and his wife
have been debarred in violation of the tenets of the principles of
natural justice.
17. In Lakshmi Kant Pandey's case, the Hon'ble
Supreme Court has observed that adoption is not merely a legal
act; it is a process that involves deep emotional and social
considerations because child is a soul with a being, a nature and
capacities of its own, who must be helped to find them, to grow
into their maturity, into the fullness of physical and vital energy
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and the utmost breath, depth and height of its emotional,
intellectual and spiritual being; otherwise, there cannot be a
healthy growth of the nation.
18. In the case of Rosy Jacob v. Jacob A Chakramakkal
[(1973) 1 SCC 840], the Hon'ble Supreme Court held that
children are not mere chattels nor mere playthings for their
parents.
19. Regulation 63 empowers the Relaxation Committee
of the Authority to relax and grant exceptions to any provision of
the regulations in respect of a case or class of cases. This
Regulation indicates that the Regulations are not strictly
mandatory but rather directory in nature, allowing for its
relaxation in deserving cases.
20. On an overall consideration of the law and the peculiar
facts of this case, notwithstanding the alternative remedy of
appeal provided in the Regulations, I am convinced that this a fit
case to exercise the extra-ordinary jurisdiction of this Court to
quash Exts.P4 and P11 orders and direct the 2 nd respondent to
refer one more child to the petitioner.
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Accordingly, I allow the writ petition in the following manner:
(i) Exts.P4 and P11 orders are quashed.
(ii) The 2nd respondent is directed to refer a
profile of a child to the petitioner and his wife
within one month from the date of receipt of a
certified copy of this judgment, in accordance
with the law, to enable them to exercise their
option to adopt the child.
Sd/-C.S.DIAS, JUDGE
SCB.04.02.25.
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APPENDIX OF WP(C) 1998/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE E-MAIL COMMUNICATION
DATED 11.11.2024 FROM THE 2ND RESPONDENT
TO THE PETITIONER
Exhibit P2 A TRUE COPY OF THE E-MAIL COMMUNICATION
DATED 12.11.2024 SENT BY THE PETITIONER
TO THE ORPHANAGE TEAM
Exhibit P3 A TRUE COPY OF THE E-MAIL COMMUNICATION
DATED 12.11.2024 SENT BY THE ORPHANAGE
TEAM TO THE PETITIONER
Exhibit P4 A TRUE COPY OF THE COMMUNICATION DATED
14.11.2024, INFORMING ABOUT THE REMOVAL
OF THE CHILD FROM PROFILE
Exhibit P5 THE TRUE COPY OF THE COMMUNICATION DATED
13.11.2024 SENT BY THE PETITIONER TO THE
2ND RESPONDENT
Exhibit P6 THE TRUE COPY OF THE COMMUNICATION DATED
14.11.2024 SENT BY THE PETITIONER TO THE
2ND RESPONDENT
Exhibit P7 THE TRUE COPY OF THE COMMUNICATION DATED
14.11.2024 SENT BY THE PETITIONER TO THE
2ND RESPONDENT
Exhibit P8 THE TRUE COPY OF THE COMMUNICATION DATED
14.11.2024 SENT BY THE PETITIONER TO THE
2ND RESPONDENT
Exhibit P9 TRUE COPY OF THE COMMUNICATION DATED
19.11.2024 SENT BY THE PETITIONER
Exhibit P10 THE TRUE COPY OF THE COMMUNICATION DATED
20.11.2024 SENT BY THE PETITIONER TO THE
3RD RESPONDENT
Exhibit P11 THE TRUE COPY OF THE REPLY DATED
21.11.2024 ISSUED BY THE 3RD RESPONDENT
TO THE PETITIONER
