Union Of India vs Ankur Gupta

CIVIL APPEAL NOS. 2017-2020 OF 2019 (arising out of S.L.P.(C) Nos.1476-1479 of 2019)

UNION OF INDIA & ANR. ETC. ...APPELLANTS

Vs.

ANKUR GUPTA & ORS. ...RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. The contesting respondent Nos. 1 and 2 having

appeared through caveat, we have heard counsel for

the parties and proceed to decide the matter finally.

3. Union of India and Central Adoption and Resources

Agency, Ministry of Women & Child Development is in

appeal questioning the Division Bench judgment dated

04.09.2018 in Writ Appeal No. 2259 of 2018 and Writ Signature Not Verified

Appeal No.2675 of 2018.

Digitally signed by SANJAY KUMAR Date: 2019.02.25

Two other appeals have been 17:48:58 IST Reason:

filed by two other appellants questioning a common

1 order dated 04.09.2018 passed by the High Court in

C.C.C. No. 1690 of 2018 and C.C.C. No. 1691 of 2018.

4. We first take the Civil Appeal filed against the

Division Bench judgment in Writ Appeal No.2259 of

2018 and Writ Appeal No.2675 of 2018. The brief

facts giving rise to the appeal as has been noted by

the Division Bench of the High Court are to the

following effect:-

4.1 That after completing his studies from the

Indian Institute of Technology and India

Institute of Management, Ahmedabad, in the

year 2000, Mr. Ankur Gupta, the respondent

No.1 migrated to United State of America (USA

for short). In 2004, Ms. Geetika Agarwal, the

respondent No.2 went to USA for her Ph.D.

During their stay in USA in June, 2006, the

respondent Nos. 1 and 2 got married. They

stayed in USA for a decade. They returned to

India in 2016. While staying in USA, the

respondent No.2 became an American Citizen;

the respondent No.1 applied for American

citizenship. However, till 2016, when the

2 couple returned to India, the respondent No.1

was not given the American Citizenship.

Moreover, even after ten years of marriage,

the couple was not blessed with any children.

Therefore, upon their return to India, they

eventually planned to adopt an Indian child.

4.2 The respondent Nos.1 and 2 submitted an

Application on 19.07.2016 through Central

Adoption Resource Information and Guidance

System (CARINGS) to adopt a child as Indian

Prospective Adoptive Parents. Just before

submitting the application for adoption

respondent No.2 had acquired the citizenship

of USA on 19.05.2016 which had been declared

as such in application submitted on

19.07.2016.

4.3 According to the Guideline, 2015, a Home

Study Report has to be prepared by a

Specialized Adoption Agency in order to

coordinate the efforts of a ‘Prospective

adoptive parents’ to adopt a child. On

01.08.2016, Shishu Mandir Agency, a

3 registered Specialized Adoption Agency, filed

its Home Study Report. Thereafter, the

respondents were in queue awaiting referral

of a child for adoption. On 05.12.2016,

during the time they were waiting for

referral of a child for adoption, the

respondent No.1 was granted the U.S.

Citizenship on 05.12.2016.

4.4 According to the respondents, on the basis of

the advice received by them, they informed

CARA, the appellant No.2 about the change in

citizenship status of respondent No.1.

Moreover, on 05.11.2017, the couple

registered themselves as Overseas Citizens of

India (OCI) residing in India. The said

registration was made under the Adoption

Regulations, 2017 (Regulations, 2017, for

short), which was notified on 4th January 2017

in supersession of the Guidelines Governing

Adoption of Children, 2015.

4 4.5 Since the respondents had informed the

Specialised Adoption Agency about the change

in their citizenship status, the Specialized

Agency informed the appellant No.2, through

e-mail dated 05.12.2017, about the change of

citizenship status of the respondents. The

Specialised Adoption Agency referred to the

respondents’ second registration, namely,

CUSA201771205. On behalf of the respondents,

the Specialised Adoption Agency requested the

appellants that the respondent’s seniority

for adoption of a child should be continued

on the basis of the first registration.

4.6 By e-mail dated 06.12.2017, the appellant

No.2 informed the Specialised Adoption Agency

that the request for continuing the seniority

of the couple would be considered with the

approval of the competent authority. However,

the eligibility of the couple for adoption

would be in the category of “OCI living in

India”.

5 4.7 On 01.01.2018, Baby Shomya (born on

30.09.2017) was referred by the respondent

No.3 for adoption by the respondent Nos. 1 &

2. The respondent Nos. 1 & 2 accepted the

referral on 02.01.2018. The respondent Nos. 1

& 2 visited Baby Shomya, who was with the

respondent No.3 at Patna. Therefore, on

04.01.2018, the respondent Nos.1 & 2 wrote to

the CEO of the appellant No.2 requesting for

continual of the reference of Baby Shomya for

adoption. The respondent Nos.1 & 2, who

apprehended that the referral of Baby Shomya

for adoption would expire on 18.01.2018,

repeatedly corresponded with the appellants

as a follow-up for completing the adoption of

Baby Shomya. Again, in the month of March

2018, the respondent nos. 1 & 2 visited Baby

Shomya. During this visit, they were informed

that in a High-Level Committee Meeting on

27.02.2018, their request for permission to

continue the first application dated

19.07.2016, as Indians living in India

Prospective Adoptive Parents, was declared as

6 invalid, because the respondent No.1 had also

been given US citizenship. They were further

informed that they will, instead, have to

wait for a referral of another child as

‘Overseas Citizen of India’.

4.8 Therefore, the respondent Nos. 1 and 2 filed

writ petition, namely, W.P. Nos. 12427-428 of

2018, impugning the aforesaid decision, which

was communicated to them over an e-mail dated

15.03.2018. The Writ Court allowed the writ

petitions by order dated 19.06.2018. The writ

Court quashed the aforesaid decision

communicated vide the e-mail dated

15.03.2018. Further, the High Court directed

the appellants to consider and examine the

request of the respondent Nos.1 & 2 on the

basis of their first application dated

19.07.2016 expeditiously, but within 15 days

from the date of receipt of this order.

4.9 The learned Single Judge vide its judgment

and order dated 19.06.2018 allowed the writ

petitions by passing following order:-

7

“ORDER (1) Writ petitions are hereby allowed.

(2) Communication dated 15.03.2018-

Annexure-Z is hereby quashed.

(3) Writ of mandamus is issued to respondents to consider and examine the application submitted by petitioners on the strength and basis of the application dated 19.07.2016 – Annexure-

A/Annexure-R-2 expeditiously, at any rate, within 15 days from the date of receipt of this order, by keeping in mind the observations made herein above. “

4.10 Union of India and Central Adoption Resources

Agency, Ministry of Women & Child Development

filed Writ Appeal No. 2259 of 2018 and Writ

Appeal No. 2675 of 2018 against the judgment.

Two Contempt Applications being C.C.C. Nos.

1690-1691 of 2018 were also filed by

respondent Nos. 1 and 2, which were also

considered and decided by Division Bench of

High Court vide its judgment dated

04.09.2018. The Division Bench of the High

Court vide its judgment dated 04.09.2018

dismissed the writ appeals. The Division

Bench affirmed the order of the learned

8 Single Judge. While dismissing the writ

appeals, the contempt petitions were also

closed. It is useful to extract paragraph

Nos. 30 and 31 of the judgment, which is

relevant for the present case:-

“30. For the aforesaid reasons, this Court is of the considered opinion that the Writ Court has rightly concluded that the appellants were not justified in denying the benefit of referral of the child, Baby Shomya, for adoption by the respondent Nos.1 and 2, and that no grounds are made out for interference with the exercise of extraordinary jurisdiction by the Writ Court under Article 226 of the Constitution of India in the peculiar facts and circumstances that congeal into exceptional circumstances. Therefore, the Writ appeal is rejected and consequentially, the pending applications are also disposed of. The appellants are directed to implement the directions of the Writ Court within a period of four weeks from the date of receipt of the certified copy of this order.

31. In view of the dismissal of the writ appeal, and the further direction to the appellants to implement the directions of the Writ Court within the further period as stated above, the contempt proceeding is closed.”

9 4.11 The appellants aggrieved by the said judgment

have filed these appeals.

5. Shri Aman Lekhi, learned ASG appearing for the

appellants submits that High Court, both learned

Single Judge and Division Bench erred in not

correctly construing the provisions of Sections 57,

58 and 59 of the Juvenile Justice (Care and

Protection of Children) Act, 2015 as well as the

Adoption Regulations, 2017. It is submitted that the

respondent No.1 after submitting first application on

19.07.2016 for in country adoption having acquired US

citizenship on 06.12.2016 went outside the zone of in

country adoption. It is submitted that the second

application was submitted by the respondents on

05.11.2017 for inter country adoption but in that

second application, the respondents have given their

different identity and mobile numbers. It is

submitted that the respondent having gone out of zone

of consideration for in country adoption, their

application cannot be directed to be considered on

the basis of seniority for in country adoption. It

is submitted that there are more than 22,000 parents

waiting, according to seniority, for in country

10 adoption, respondents cannot stroll march over them.

It is submitted that offer to adopt Shomya, which was

sent on 01.01.2018 was on the basis of first

application of the respondents and after the

respondents informed in writing on 04.01.2018 about

their second registration dated 05.11.2017, the

communication was sent to the respondents that

decision regarding their seniority will be taken by

the competent authority. The communication was sent

on 15.03.2018 to the respondents that they cannot be

given the benefit of their seniority on the basis of

their first application and they have to wait for

receiving an offer as overseas citizen of India. It

is submitted that there were no special circumstances

on the basis of which any exception can be made in

favour of the respondents as has been directed by the

High Court.

6. Learned counsel appearing for the respondents

submits that the Act, 2015 and the Regulations, 2017

do not provide for any mechanism when Indian parents,

who have already got themselves registered for

adoption acquires the foreign citizenship. It is

submitted that as per Regulation 41 of the

11 Regulations, 2017, a common seniority list is

contemplated, which means that respondents shall

retain their seniority position on the basis of first

application. Thus, offer to adopt Shomya to the

respondents cannot be faulted. It is submitted that

respondent Nos.1 and 2 being fully competent for

applying for adoption, who are still qualified and

economically stable and eager to adopt the child

cannot be denied their right merely because the

respondent No.1 was conferred the US citizenship on

06.12.2016, i.e., much after submission of their

first application as Indian parent.

7. It is submitted that even though respondent Nos.1

and 2 have been conferred US citizenship, both are

residing in Bangalore, India and in both the

applications, their residence is shown as India,

hence in peculiar circumstances, they have rightly

been offered child Shomya for adoption. It is

submitted that the respondent Nos. 1 and 2 bonafide

has not concealed any information and has bonafide

submitted their application on 05.11.2017 as Overseas

Citizen of India and the fact that immediately when

they received offer for adoption of Shomya on

12 02.01.2018, on 04.01.2018, they sent an e-mail giving

details of both the applications. The respondents

have been bonafide pursuing their claim for adoption,

they having not been blessed with a child even though

after happy marital life of more than ten years. It

is submitted that the High Court has rightly held

that present case can be considered as an exceptional

case and without making it a precedent, the adoption

in favour of the respondents be allowed to maintain.

8. We have considered the submissions of the learned

counsel for the parties and have perused the records.

9. The 2015 Act, Chapter VIII deals with adoption.

Section 56 sub-section (1) provides that adoption

shall be resorted to for ensuring right to family for

the orphan, abandoned and surrendered children, as

per the provisions of the Act, the rules made

thereunder and the adoption regulations framed by the

authority. Section 57 deals with eligibility of

prospective adoptive parents, which is as follows:-

57. Eligibility of prospective adoptive parents.--(1) The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him.

13 (2) In case of a couple, the consent of both the spouses for the adoption shall be required.

(3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.

(4) A single male is not eligible to adopt a girl child.

(5) Any other criteria that may be specified in the adoption regulations framed by the Authority

10. Section 58 deals with procedure for adoption by

Indian prospective adoptive parents living in India,

which is to the following effect:-

58. Procedure for adoption by Indian prospective adoptive parents living in India.--(1) Indian prospective adoptive parents living in India, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child, may apply for the same to a Specialised Adoption Agency, in the manner as provided in the adoption regulations framed by the Authority.

(2) The Specialised Adoption Agency shall prepare the home study report of the prospective adoptive parents and upon finding them eligible, will refer a child declared legally free for adoption to them along with the child study report and medical report of the child, in the manner as provided in the adoption regulations framed by the Authority.

14 (3) On the receipt of the acceptance of the child from the prospective adoptive parents along with the child study report and medical report of the child signed by such parents, the Specialised Adoption Agency shall give the child in pre-adoption foster care and file an application in the court for obtaining the adoption order, in the manner as provided in the adoption regulations framed by the Authority.

(4) On the receipt of a certified copy of the court order, the Specialised Adoption Agency shall send immediately the same to the prospective adoptive parents.

(5) The progress and well-being of the child in the adoptive family shall be followed up and ascertained in the manner as provided in the adoption regulations framed by the Authority.

11. The next provision, which needs to be noticed is

Section 59, which provides for procedure for inter-

country adoption of an orphan or abandoned or

surrendered child, which is as follows:-

59. Procedure for inter-country adoption of an orphan or abandoned or surrendered child.--(1) If an orphan or abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective adoptive parent 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:

Provided that children with physical and mental disability, siblings and children above five years of age may be given

15 preference over other children for such inter-country adoption, in accordance with the adoption regulations, as may be framed by the Authority.

(2) An eligible non-resident Indian or overseas citizen of India or persons of Indian origin shall be given priority in inter-country adoption of Indian children.

(3) A non-resident Indian or overseas citizen of India, or person of Indian origin or a foreigner, who are prospective adoptive parents living abroad, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child from India, may apply for the same to an authorised foreign adoption agency, or Central Authority or a concerned Government department in their country of habitual residence, as the case may be, in the manner as provided in the adoption regulations framed by the Authority.

(4) The authorised foreign adoption agency, or Central Authority, or a concerned Government department, as the case may be, shall prepare the home study report of such prospective adoptive parents and upon finding them eligible, will sponsor their application to Authority for adoption of a child from India, in the manner as provided in the adoption regulations framed by the Authority.

(5) On the receipt of the application of such prospective adoptive parents, the Authority shall examine and if it finds the applicants suitable, then, it will refer the application to one of the Specialised Adoption Agencies, where children legally free for adoption are available.

16 (6) The Specialised Adoption Agency will match a child with such prospective adoptive parents and send the child study report and medical report of the child to such parents, who in turn may accept the child and return the child study and medical report duly signed by them to the said agency.

(7) On receipt of the acceptance of the child from the prospective adoptive parents, the Specialised Adoption Agency shall file an application in the court for obtaining the adoption order, in the manner as provided in the adoption regulations framed by the Authority.

(8) On the receipt of a certified copy of the court order, the specialised adoption agency shall send immediately the same to Authority, State Agency and to the prospective adoptive parents, and obtain a passport for the child.

(9) The Authority shall intimate about the adoption to the immigration authorities of India and the receiving country of the child.

(10) The prospective adoptive parents shall receive the child in person from the specialised adoption agency as soon as the passport and visa are issued to the child.

(11) The authorised foreign adoption agency, or Central Authority, or the concerned Government department, as the case may be, shall ensure the submission of progress reports about the child in the adoptive family and will be responsible for making alternative arrangement in the case of any disruption, in consultation with Authority and concerned Indian diplomatic mission, in the manner as provided in the

17 adoption regulations framed by the Authority.

(12) A foreigner or a person of Indian origin or an overseas citizen of India, who has habitual residence in India, if interested to adopt a child from India, may apply to Authority for the same along with a no objection certificate from the diplomatic mission of his country in India, for further necessary actions as provided in the adoption regulations framed by the Authority

12. 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. After the respondent No.1

acquired the US citizenship on 06.12.2016 and OCI

card was issued to respondent No.1 on 27.04.2017,

18 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.

13. The submission of learned counsel for the

respondents that Regulation 41 deals with common

seniority list also need to be noted. Regulation 41

of the Regulations, 2017 is as follows:-

41. Seniority of the prospective adoptive parents.- (1) The prospective adoptive parents shall be referred children on the basis of a single seniority list, which shall be maintained from the date of registration and other criteria as stipulated under these regulations.

(2) The seniority of resident Indians shall be based on the date of online registration and submission of the documents, except for

19 Home Study Report, in Child Adoption Resource Information and Guidance System.

(3) The seniority of Non Resident Indian or Overseas Citizen of India or foreign prospective adoptive parents shall be based on the date of online registration and submission of the requisite documents alongwith Home Study Report in Child Adoption Resource Information and Guidance System.

(4) Prospective adoptive parents shall be allowed to change the State preference once within sixty days from the date of registration and in case they change the State preference after sixty days from the date of registration, they shall be placed at the bottom of the seniority list in the changed State.

(5) Seniority of prospective adoptive parents registered as single, but married later shall be counted from the date of registration as single after receipt of fresh Home Study Report.

(6) Prospective adoptive parents registered for normal child, shall be able to adopt a special need child or hard to place child with the same registration.

14. It is also submitted that prior to Regulations,

2017, there were two separate seniority lists, which

were maintained under the Guidelines, 2015, which has

been now made a single seniority list. Even if there

is a single seniority list, now contemplated by

Regulation 41, a placement in the seniority list with 20 regard to resident Indian and non-resident Indian or

overseas citizen of India are based on different

yardsticks as provided in Regulations 41(2) and

41(3). Even if the common seniority list has to be

utilised for the purpose of in country adoption and

inter-country adoption as per the respective

categories, the difference between in country

adoption and inter-country adoption cannot be lost

sight or given a go bye by the mere fact that a

common seniority list is maintained. It is true that

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. We, thus, find force in the submission of

the learned ASG that 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. Offer of the child to the respondent

21 Nos. 1 and 2 was based on their first application

dated 19.07.2016, in which if the clause of foreign

citizenship is ignored, was in accordance with the

Act and the Rules. Further, 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 required to

be addressed and answered in these appeals.

15. 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

22 eligible for adoption under Section 59. We are,

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 Shomya 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. We have 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

23 eligible overseas citizens of India and further due

to consequences of events and facts as noticed above.

16. In view of the foregoing discussions, we are of

the view that ends of justice be served in disposing

the Civil Appeals arising out of SLP (C) Nos. 1476-

1477 of 2019 in following manner:

(i) The decision dated 27.02.2018 as

communicated to the respondent Nos. 1 and 2

by e-mail dated 15.03.2018 is upheld.

(ii) 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.

(iii) The competent authority shall again notify

the child Shomya legally free for adoption,

which notification shall be issued within

one week from today.

(iv) That in event, within sixty days from the

date the child(Shomya) is declared as

legally free for adoption is not taken by

or adopted by Indian prospective adoptive

24 parents, the child Shomya shall be given in

adoption to the respondent Nos.1 and 2 in

inter-country adoption. All consequential

steps thereafter shall be completed.

17. Now, coming to Civil Appeals arising out of SLP

(C) Nos. 1478-1479, these appeals have been filed

against the order dated 04.09.2018 passed in C.C.C.

Nos. 1690-1691 of 2018, the contempt proceedings

having been closed by the Division Bench by its

impugned judgment dated 04.09.2018, nothing more is

required to be said in that regard. We, however,

observe that filing of the contempt applications in

the fact situation of the present case was ill-

advised. Both the contempt applications deserve to

be rejected. The appeals are allowed and contempt

applications stand rejected. Parties shall bear

their own costs.

......................J. ( ASHOK BHUSHAN )

......................J. ( K.M. JOSEPH ) New Delhi, February 25, 2019.

25