Citation – 2019 SCC ONLINE SC 262

Decided on February 25, 2019

The present case is an appeal by the Union of India and Central Adoption and Resource Agency (CARA), Ministry of Woman and Child Development, to question the division bench judgment. According to the facts Ankur Gupta, the respondent had migrated to the USA in 2000 and got married there in 2006. He with his wife (who has been granted American Citizenship) returned to India in 2016. They applied to adopt a child in India as Indian Prospective Adoptive Parents on July 19, 2016. In the application, they had mentioned that the wife had acquired citizenship of USA.

As per the set procedure which had been mentioned in the guidelines 2015, a Home Study Report had to be prepared. The same was done by “Shishu Mandir Agency” which is the registered exclusive Adoption Agency.  After the completion of the formalities, parents were put in a queue awaiting referral of a child for adoption. While the couple was waiting for the referral of a child for adoption, Ankur Gupta was also granted US Citizenship on December 5, 2016. The couple as per the advice of CARA, on November 5, 2017, registered as Overseas Citizens of India (OCI). They are residing in India according to Guidelines 2017, which had come into existence by then.  A request was put by Ankur Gupta and his wife that the for the adoption of the child seniority should be continued based on first registration and they were further informed that it would be considered with the approval of the competent authority. However, the eligibility of the couple would come in the category of “OCI living in India”.

On September 30, 2017 baby Shomya was born and was referred to this couple for the adoption on January 1, 2018. Since they were anxious that their referral might expire, they visited the baby, kept up the correspondence for the follow-up and again met the baby Shomya in March. On one of their visit, they were given the heartbreaking news that there request for treating their case based on first registration was outrightly held invalid because of the change of status and they would have to wait for another referral.

The couple filed a writ petition challenging the above decision. The decision mentioned above was quashed, and a further order was given to deal with the adoption of a child on the basis of “first registration” but, within 15 days from the receipt of order.

Union of India and CARA filed a writ appeal against the judgment. The division bench affirmed the order of the single judge. The matter finally came before the apex Court in appeal, where the order of the single judge and division bench was set aside, and it was directed that the competent authority notify the child Shomya legally free for adoption. The court clarified that if within the 60 days (from the date child is legally free for adoption) is not adopted by Prospective Indian parents then, the child Shomya shall be given in the adoption to the respondent in inter-county adoption.

The bizarre part about the case is that the very agencies which have the best interest of the child and their paramount consideration perhaps have tempered and they got embroiled in legal technicalities. This is not to undermine the importance of the “Juvenile Justice Act” and the accompanying guidelines, but, one must keep in perspective that a child’s well-being is adequately assured in implementing those provisions. Given the peculiarity of this very case, the apex court should have kept in mind that procedural law is just the handmaid of the justice and should not take the entire stage by ignoring all other aspects, The couple who were to adopt the child visited baby Shomya and had decided to adopt the child, so those parental instincts and parental love which had blossomed cannot be completely ignored.  The bond is naturally between the adoptive parents and the child who was supposed to be adopted, and she doesn’t even know what was happening. Still, the turn of the vents have surely affected the mental status of the prospective parents. What was involved in this case was not a piece of property or a thing but human lives and emotions.

What was more surprising was the approach of UOI and CARA. One may appreciate that since clearly the rules were adhered by. Still, once the court (single bench) had given the go-ahead signal in favour of the respondents, then the Writ petition should not have filed when the home report was favourable and all things that matters were satisfactory. But, they (un)like contentious litigants, doggedly pursued the matter they got (un)favourable order. 

Was such a judgment justiciable given the “paramountcy of best interest of the child”? The UOI and CARA need to introspect the same.

This case is reviewed by Priyanka Singh, a Law graduate from National Law University, Orissa

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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