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SUPREME COURT OF INDIA
ASHOK BHUSHAN, K.M. JOSEPH, JJ.
UNION OF INDIA AND ANOTHER – Appellant
Vs.
ANKUR GUPTA AND OTHERS – Respondent
Civil Appeal Nos. 2017-2020 of 2019 (Arising Out of S.L.P.(C) Nos. 1476-1479 of 2019)
Decided on : 25-02-2019
(b) Adoption Regulations, 2017 – Regulation 41 – Despite there being a common seniority list, placement in the seniority list with 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). (Para 14)
(c) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 59 – Overseas Citizen of India – Eligible to adopt after expiry of 60 days from the date the child is declared free for adoption – Held, by virtue of Section 59(2), the respondent Nos.1 and 2 can at best may be given priority in inter-country adoption. (Para 15)
Facts of the case:
In the year 2000, Mr. Ankur Gupta, the respondent No. 1 migrated to United State of America. In 2004, Ms. Geetika Agarwal, the respondent No. 2 went to USA. During their stay in USA in June, 2006, the respondent Nos. 1 and 2 got married. They stayed in USA for a decade. 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 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.
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.
During the time they were waiting for referral of a child for adoption, the respondent No. 1 was also granted the U.S. Citizenship on 05.12.2016.
The respondents informed CARA, the appellant No.2, about the change in citizenship status of respondent No.1. On 05.11.2017, the couple registered themselves as Overseas Citizens of India (OCI) residing in India under the Adoption Regulations, 2017, which was notified on 4th January 2017 in supersession of the Guidelines Governing Adoption of Children, 2015.
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. In March 2018, the respondent nos. 1 & 2 were informed that their request for permission to continue the first application dated 19.07.2016, as India Prospective Adoptive Parents, was declared as 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'.
The respondent Nos. 1 and 2 filed writ petition which was allowed.
The Division Bench of the High Court dismissed the writ appeals.
Finding of the Court:
The decision dated 27.02.2018 as communicated to the respondent Nos. 1 and 2 by e-mail dated 15.03.2018 is upheld.
Result: Appeals disposed of. Contempt petitions rejected.
JUDGMENT :
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 Appeal No. 2675 of 2018. Two other appeals have been filed by two other appellants questioning a common 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 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 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.
4.5 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 el
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