Mr. Ankur Gupta and Anr @APPELLANT@Hash Central Adoption and Resources Agency and Ors

,,

Petitioners who are Indians by birth and having spent their considerable time in the Indian soil and claiming to be childless are seeking for adoption,,

of a child and in search of the said prospective child, they have taken to the legal course of adoption which has made them to land before this court for",,

redressal of their grievance.,,

Petitioners have prayed for quashing of the decision rendered by Central Adoption and Resources Agency (for short ‘CARA’) dated,,

15.03.2018 â€" Annexure-Z whereunder petitioners have been intimated that following decision has been taken by the High Level Committee in its,,

meeting held on 27.02.2018 on the request of petitioners to take in adoption the child Baby Shomya (female) born on 13.09.2017:,,

“1. Your request for relaxation to be considered as Indian parent has not been considered as you have acquired the citizenship of USA.,,

The Committee has taken a decision that your registration as NRI (In-country) parent is invalid and you have to wait for the referral as an OCI,,

citizen.†Petitioners are also seeking for a further direction to the respondents to consider the applications submitted by them as “In-country,,

adoptionâ€, since they are residing in India although they are Overseas Citizens of India and to commence the adoption process of minor child Baby",,

Shomya referred to them in their favour.,,

Facts in brief which has led to the filing of this petition are as under:,,

(i) Petitioners are husband and wife of Indian origin having been born and brought up in India. First petitioner having graduated from Indian Institute of,,

Technology, Delhi and Indian Institute of Management, Ahmedabad is working as a Senior Director in a Multi National Firm known as “Flipkartâ€,",,

after having worked in several Multi national Companies at United States of America (for short ‘USA’). Second petitioner is said to be an,,

Assistant Professor of Special Education and Behavioural Analyst working in the areas of Autism, Developmental Disabilities, Verbal Behaviour,",,

Applied Behavioural Analysis, Behaviour Assessment, etc.. First petitioner shifted to USA in the year 2000 and second petitioner went to USA in",,

2004 for her Ph.d. Petitioners got married on 01.06.2006 at New Delhi. Petitioners are said to have applied for US citizenship. Since February, 2016",,

petitioners are said to be residing and working at Bengaluru and their extended family, relatives and friends are also said to be living in India.",,

(ii) During June, 2016 petitioners are said to have taken steps to adopt a child and through Central Adoption Resource Information and Guidance",,

System (for short ‘CARINGS’) established by first respondent â€" CARA got registered themselves as Prospective Adoptive Parents (for,,

short ‘PAPs’) by submitting On line Adoption Form which came to be registered with Registration No.PrKa57296874 (hereinafter referred to,,

as first application/registration and petitioners were registered as eligible for in-country adoption on 19.07.2016 vide Annexure-A. Just before,,

submitting the application for adoption, second petitioner had acquired the citizenship of USA (on 19.05.2016) and had declared as such in the",,

application form as per Annexure-R2. First petitioner had indicated his nationality as an Indian as on the date of registration of the application for,,

adoption i.e., 19.07.2016. Thus, petitioners were allowed registration for In-country adoption in terms of Regulation 21(1) of the Adoption Regulations,",,

2017 (for short ‘Regulation’).,,

On submission of the Adoption application and its registration thereof being completed, a home-study report and an assessment report came to be",,

prepared on 01.08.2016 by a Specialized Adoption Agency (SAA), Shishu Mandir Agency as required under Regulation 9 of the Regulations. It is",,

thereafter first petitioner acquired citizenship of USA on 06.12.2016 and was issued an Overseas Citizen of India i.e., OCI-card vide Annexure-G on",,

27.04.2017.,,

On account of the said changed circumstance and with a bonafide intention to keep the authorities informed about the changed circumstances,",,

petitioners approached first respondent â€" CARA to inform the authorities about change of citizenship status. On being advised to file a new,,

application as an Overseas Citizen of India (for short ‘OCI’), yet another application for legal adoption on 05.11.2017 through On-line",,

(Annexure-H) came to be submitted under Regulation 21(2) and petitioners were issued with registration No.CUSA201771205 (hereinafter referred,,

to as second application). The registered Special Adoption Agency which facilitates the adoption for the PAPs and which was coordinating or,,

facilitating the adoption for the petitioners, by e-mail dated 05.12.2017 submitted its report â€" Annexure-J to first respondent, certifying that",,

petitioners are residing in India and their seniority should be based on their first registration i.e., first application and sought for written confirmation",,

from first respondent and first respondent, in turn, intimated said SAA â€" Agency by email dated 06.12.2017 â€" Annexure-K to update the Home",,

Study Report with complete details of the petitioners but their seniority would be considered only with the approval of the competent authority but their,,

eligibility would change as they will be OCIs living in India.,,

The above said Home - Study Report relating to the petitioners submitted by SAA-Agency to the first respondent also came to be updated in the,,

second application and not in respect of first application vide Annexure-L and this confirmation was available in the website of first respondent as,,

seen from Annexure-M.,,

On 01.01.2018 petitioners were intimated about a Baby Girl named Shomya, born on 13.09.2017 as an orphan child when received by the Child",,

Welfare Committee (for short ‘CWC’) and it is six months old. CWC authorised Prayas Bharathi Trust, Patna â€" third respondent, a SAA",,

Agency, recognized by the Ministry of Social Justice and Empowerment, Government of India to receive the child which was put up for adoption",,

within India and through them, the petitioners received the referral of the said child based on their first application, which referral provided the",,

child’s personal details vide Annexure-N.,,

Subsequently, the adoption process was facilitated to the petitioners by preparing Child-Study Report and Medical Examination Report and was",,

posted in CARINGS system. Immediately, petitioners accepted this referral for adopting Baby Shomya on 02.01.2018, which was also reflected in the",,

website of first respondent and petitioners were also informed by first respondent by e-mail dated 02.01.2018 â€" Annexure-S that child was reserved,,

for their adoption and were,,

called upon to meet the child and carry out the matching process which should be completed in the next 20 days. This referral was also based on the,,

first application. On receipt of such referral, petitioners are said to have visited Patna, met Baby Shomya at the third respondent â€" Agency and is",,

said to have bonded with the child. It is also the stand of the petitioners that there was an immediate connect and bond with the Baby Shomya and,,

them as family and as such, they felt Baby Shomya truly completes their family and as such they were eager to have a child at their home. The",,

photographs produced at Annexure-T to T9 would disclose the petitioners being in the company of the said child Shomya.,,

On 04.01.2018-Annexure-V, petitioners forwarded a communication to first respondent requesting for continuation of their prayer for adoption of",,

the said child by considering the first application which had been registered with No.PrKa57296874 and also sought that their application submitted as,,

OCI be accepted for the adoption of Baby Shomya. On account of non-receipt of any reply from respondent, by e-mail dated 18.01.2018-Annexure-",,

W requested second respondent to allow adoption of Baby Shomya by reiterating prayer made in their communication dated 04.01.2018- Annexure-V.,,

Having not received any response, representation dated 19.01.2018 â€" Annexure-X was submitted to the Minister of the second respondent â€"",,

Department. This was followed up by several e-mails by petitioners to through first and second respondents as per Annexures-Y to Y4 expressing,,

their concern for delay and their eagerness to adopt Baby Shomya.,,

On 15.03.2018, when petitioners visited third respondent â€" Agency at Patna to meet Baby Shomya again, they received a communication from",,

first respondent on 15.03.2018-Annexure-Z intimating the petitioners that their request to consider their application as in-country parents was not,,

considered and their registration as In-country parent was invalid and have to wait for a new referral as an OCI citizen. Hence, petitioners are before",,

this Court.,,

On Respondents being notified, second respondent has entered appearance and has filed its statement of objections and has contended that",,

petitioners did not withdraw their earlier registration after having submitted their second application on 05.11.2017 as ‘Overseas Citizen of India,,

Prospective Adoptive Parents’ and as such, their prayer for adoption by considering their first application is impermissible. It is also the stand of",,

the second respondent that petitioners had furnished different details in their application forms namely, in the first registration and second registration",,

and elaborating on this, it is stated that on line system captures three parameters namely, mobile number, e-mail id, and personal id (Aadhar/Passport,",,

etc.) for identification of duplication of registrations by the same set of PAPs and on comparison of the two applications which had been submitted by,,

the petitioners namely, Annexures-R2 and R3, it disclosed that when second petitioner acquired the citizenship of USA, yet petitioners registered as",,

OCI and though second petitioner could have provided Passport number while registering their first registration during July, 2016 when she had",,

already acquired US Citizenship on 19.05.2016 and OCI card on 28.06.2016, but they chose to keep the column blank for reasons best known. It is",,

also contended that petitioners had keyed their mobile number from 9972970207 (during first registration) to 49525907 (during second registration) and,,

if they had intentions to live in India, they could have continued to use the mobile number of the operator in India. Hence, it was contended that",,

comparison of two registrations reflected, the detail furnished by the petitioners were different.",,

It is also contended that Article 4(b) of the Hague Convention, 1993 states that the child is to be first placed for adoption in the State of origin and",,

after exploring such possibility, the child should be placed for Inter-country adoption. Section 59(1) of Juvenile Justice (Care and Protection of",,

Children) Act, 2015 (for short ‘Juvenile Justice Act’) states that a child should not be placed with the Indian or non-resident Indian PAPs within",,

60 days from the date of the child has been declared legally free for adoption. It is also contended that Regulation 8(1) of the Regulations states that,,

the child in the age group of 0-5 years can be placed in Inter country adoption after 60 days from the date the child has been declared legally free for,,

adoption.,,

In this background, it is contended by second respondent that petitioners had voluntarily foregone the Indian citizenship as well as their right to",,

adopt a child as Indian citizens and as such, it was not considered appropriate to deny the child its right to be adopted in India by Indian parents and to",,

transfer the right of Indian Citizen PAPs to foreign or OCI citizen. It is further stated that there was no justification/reason to prefer an Overseas,,

Citizen of India to an Indian citizen, until and unless the child has been provided due opportunity of 60 days to get adopted in India in accordance with",,

Section 59(1) of Juvenile Justice Act. Hence, second respondent has defended the impugned order. On these grounds, second respondent has sought",,

for dismissal of the petition.,,

I have heard the arguments of Smt. Jayna Kothari, learned counsel appearing for petitioners and Sri.R.Nataraj, learned Central Government",,

Counsel for respondents. Perused the records and case papers.,,

Having heard the learned Advocates appearing for the parties and on perusal of the pleadings and after bestowing my careful and anxious,,

consideration to the contentions raised at the bar, I deem it proper to refer to historical background relating to adoption, which would have bearing on",,

the facts of this case.,,

Hague Convention on Inter Country Adoption came to be signed on 09.01.2003 and has come into force with effect from 01.10.2003 in India. The,,

Hague Convention of 29.05.1993 on Protection of Children and Co-operation In respect of Inter-country Adoption (Hague Adoption Convention),,

protects children and their families against risks of illegal, irregular, premature or ill prepared adoptions. This convention, which operates through a",,

system of National Central Authorities and reinforces the UN Convention on the rights of the child (Article 21) and seeks to ensure that Inter Country,,

adoptions are made in the best interest of the child and with respect to his or her fundamental rights. It also seeks to prevent the abduction, the sale of,",,

or trafficking of children. As already noticed herein above, India became a signatory to this Convention on 09.01.2003. The signatories to the Hague",,

Convention Treaty are bound by it.,,

Article 4(b) of the Hague Convention 1993 mandate that a child is first placed for adoption in the State of origin and only after exploring such,,

possibilities, said child should be placed for inter-country adoption. In fact, Section 59(1) of Juvenile Justice Act is in paramateria with Article 4(b) of",,

Hague Convention. A bare reading of said provision would disclose that in the event of a child not being able to be placed with an Indian or Non-,,

resident Indian PAP’s within 60 days from the date such child has been declared legally free for adoption, it would be free for inter-country",,

adoption.,,

The principle underlying for grant of adoption of a child to the PAPs is to ensure the safety of the child or in other words, to ensure that child",,

would not be placed in any hostile atmosphere or driven to any illegal activity for no fault of it and to ensure welfare of such children stringent steps,,

are required to be adopted. In other words, the pivotal consideration would be the paramount interest of the child and to ensure prevention of",,

trafficking or child being used for gain.,,

It is in this background, first respondent has notified the adoption Regulations in exercise of its powers conferred by clause (c) of Section 68 read",,

with clause (3) of Section 2 of Juvenile Justice Act which has come into force with effect from 04.01.2017 and thereby said regulations have acquired,,

statutory force. These guidelines are in addition to the existing Act and Rules framed in that regard. A bare reading of these guidelines would disclose,,

the time frame, time schedule, the manner, mode, method to be adhered to for completion of the adoption process has been prescribed. The Agencies",,

indicated under the said guidelines also play a pivotal role in the process of such adoption. Same is extracted herein below for immediate reference:,,

“3. Fundamental principles governing adoption.- The following fundamental principles shall govern adoptions of children from India, namely:-",,

(a) the child's best interests shall be of paramount consideration, while processing any adoption placement;",,

(b) preference shall be given to place the child in adoption with Indian citizens and with due regard to the principle of placement of the child in his own,,

socio-cultural environment, as far as possible;",,

(c) all adoptions shall be registered on Child Adoption Resource Information and Guidance System and the confidentiality of the same shall be,,

maintained by the Authority.,,

Age of the child,"Maximum

composite age of

prospective

adoptive parents

(couple)","Maximum age of

single

prospective

adoptive parent

Upto 4 years,90 years,45 years

Above 4 and upto 8

years",100 years,50 years

Above 8 and

upto 18 years",110 years,55 years

Name of:

1st Petitioner:

2nd Petitioner:","Sri Ankur Gupta

Smt.Geetika Agarwal","Sri Ankur Gupta

Smt.Geetika

Agarwal

Date of Birth:,02.10.1976,02.10.1976

1st Petitioner:

2nd Petitioner:",26.05.1981,26.05.1981

Nationality by

birth:

1st Petitioner:

2nd Petitioner:","Indian

USA","USA

USA

Annual Income:

1st Petitioner:

2nd Petitioner:","`1,14,30,000/-

0","`1,10,00,000/-

0

Residential

Address:

1st Petitioner:

2nd Petitioner:","Villa 555, Phase 3,

Adarsha Palm Retreat,

Near Intel Office, Outer

Ring Road,

Devanabisahalli","Villa 555, Phase 3,

Adarsha Palm

Retreat, Near Intel

Office, Outer Ring

Road,

Devanabisahalli

Passport:

1st Petitioner:

2nd Petitioner:",,"548523543

545777777

E-mail Address:,"ankursworld@yahoo

.com","ankursworld@

gmail.com

Mobile:,9972970207,49525907

On account of changed circumstances and events namely, first petitioner having acquired the citizenship of US on 06.12.2016 and having been",,

issued with an OCI card on 27.04.2017, it would not alter their claim made in the first instance or in other words, their right to pursue the first",,

application would not get extinguished. Even otherwise, as could be seen from the records, both the petitioners are of Indian origin and have spent",,

their considerable life span in India and after having gone in search of greener pastures and better prospects, have acquired the citizenship of US. First",,

petitioner acquired the US citizenship on 06.12.2016 i.e., much after submitting the application on 19.07.2016 for adoption under the category of In",,

country adoption and this fact has also not been suppressed by the petitioners. In fact, they have also intimated to the second respondent â€" authority",,

the details of changed circumstances by updating the said information in the second application submitted by them. In fact, Home-Study Report â€"",,

Annexure-L has been subsequently updated in the records of respondent subsequent to second application submitted by petitioners on 05.11.2017. All,,

these aspects were within the know how and knowledge of the second respondent, and as such, by email dated 02.02.2018 â€"",,

Annexure-S, first respondent has extended the ray of hope to the petitioners of becoming the proud parents of the child which they had proposed to",,

adopt by assuring that Baby Shomya which had been declared legally available for adoption would be given in adoption to them. The contents of the,,

said email reads as under:,,

“We congratulate you for successfully reserving profile of child. Please contact the concerned SAA to fix an appointment to match with the child.,,

The entire process of matching shall be completed within a maximum period of 20 days from the date of reserving of the referred child.,,

Kindly adhere to Guidelines Governing Adoption of Children 2015.â€​,,

In fact, by communication dated 04.01.2018, petitioners have also intimated second respondent about their earlier application, first petitioner having",,

acquired US citizenship subsequent to the filing of the application, filing of new application in the status of OCI residing in India and also NOC issued",,

by the United States Embassy which also came to be filed by the petitioners with CARA and pleading their ignorance for not withdrawing their earlier,,

application. At no point of time, respondents have refused to entertain the claim of petitioners on the basis of first application having got extinguished.",,

In fact, it is the application dated 19.07.2016 which came to be processed and continued by respondents 1 and 2 by extending the visitation rights of",,

petitioners as PAPs to interact with the child namely, so that they bond with the child which is said to have occurred at the first instance itself",,

according to petitioners as is evident from the photographs produced at Annexures-T to T9. Hence, this Court is of the considered view that",,

respondents were not justified in denying claim of the petitioners particularly, in the peculiar facts and circumstances surrounding the claim of",,

petitioners and as unfolded by certain events having occurred between the date of filing of first application i.e., 19.07.2016 and filing of second",,

application on 05.07.2017.,,

In the peculiar circumstances of the case, as discussed herein above, this Court is of the considered view that petitioners would be entitled to",,

prosecute their claim for adoption of the Baby Shomya pursuant to their first application dated 19.07.2016. However, it is made clear that this cannot",,

be construed as a precedent in the peculiar circumstance namely, the petitioners when they applied for adoption under Regulations, 2017 were well",,

within the category of being registered under Chapter III viz., as In country PAP’s and only on account of subsequent event which has taken",,

place, which was not in their control or in other words, beyond their control, had changed their status and as such, it cannot be held or construed that",,

their claim under the first application dated 19.07.2016 had got extinguished or they were required to pursue their application dated 05.11.2017,,

(Annexure-R3) as Inter Country PAP’s, which came to be submitted by them in their anxiety to seek for the adoption of Baby Shomya which",,

was already shown to them and bondage having also been established between petitioners and the child - Baby Shomya.,,

Hence, I proceed to pass the following:",,

ORDER,,

(1) Writ petitions are hereby allowed.,,

(2) Communication dated 15.03.2018 â€" 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 â€" Annexure-A/Annexure-R2 expeditiously, at any rate, within 15 days from the date of receipt of this order, by keeping",,

in mind the observations made herein above.,,