Juvenile Justice (Care and Protection of Children) Act, 2015 – s.57, 58 & 59 – Adoption Regulations, 2017 (framed u/s. 68(C) r/w. cl.(3) of s.2 of the Act, 2015) – r.41 – Respondent Nos.1 & 2 submitted application to adopt a child as Indian Prospective Adoptive Parents – At that time, only respondent No.2 had citizenship of USA – When both the respondents were waiting for referral of a child for adoption, the respondent no.1 was also granted the U.S. citizenship – On communication of the aforesaid development, the competent authority referred the respondents’ to second registration under category ‘Overseas Citizen of India’– Respondents requested to continue their registration on the basis of the first registration – Meanwhile, a baby ‘S’ was referred to the respondents, for adoption – Respondents accepted the referral – However, a Highlevel Committee rejected their request for permission to continue the first application under the category India Prospective Adoptive Parents – Consequently, respondents were informed to wait for a referral of another child as ‘Overseas Citizen of India’ – Writ petition filed by Respondents against the said decision was allowed – On appeal, held: The fact that both respondents had become U.S. citizens, they were not eligible for adoption as Indian Prospective adoptive parents living in India – Mere fact that Act or Regulations does not provide for any mechanism to upload any further information in first registration cannot alter the legal position and consequences of acquiring the foreign citizenship by an Indian – The consequences of obtaining U.S. citizenship of respondent nos.
1 & 2 shall take its effect immediately – Therefore, by virtue of s.58 & s.59 of the Act, 2015 baby ‘S’ referred to the respondents declared as legally free for adoption and in event adoption is not taken by Indian prospective adoptive Parents within sixty days, the baby ‘S’ to be given to respondents in inter-Country adoption. Disposing of the matters, the Court
HELD: 1. 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 Adoption 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. After the respondent No.1 acquired the US citizenship on 06.12.2016 and ‘Overseas Citizen of India’ (OCI) card was issued to respondent No.1 on 27.04.2017, second application was submitted on 05.11.2017 by the respondents for inter-country adoption both having become US citizens. In view of the fact that both had become US citizens by 06.12.2016, they were not eligible for adoption as Indian prospective adoptive parents living in India. Mere fact that Act or Regulations does not provide for any mechanism to upload any further information in first registration cannot alter the legal position and consequences of acquiring the foreign citizenship by an Indian. The consequences of obtaining US citizenship of respondent Nos.1 and 2 shall take its effect immediately.[Para 12][42-G, H; 43-A-C]
2. Section 58 and 59 of Juvenile Justice (Care and Protection of Children) Act, 2015 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. This Court is, however, not oblivious to the fact that respondent Nos.1 and 2 had been bonafide pursuing their applications for adoption, initially as resident Indians and thereafter even as overseas citizens of India. As per Section 57, both the respondent Nos.1 and 2 are fully eligible and competent to adopt the child. It was under the circumstances as noticed above that the child ‘S’ 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. There is no doubt in the bonafide or 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, cannot be lost sight. However, 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 overseas citizens of India and further due to consequences of events and facts as noticed above. Therefore, the competent authority shall again notify the child ‘S’ legally free for adoption, which notification shall be issued. That in event, within sixty days from the date the child ‘S’ is declared as legally free for adoption is not taken by or adopted by Indian prospective adoptive parents, the child ‘S’ shall be given in adoption to the respondent Nos.1 and 2 in inter-country adoption. All consequential steps thereafter shall be completed. [Paras 15 and 16][44-G-H; 45-A-E, G, H; 46-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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