Back
2018 Supreme(Kar) 891
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAGHVENDRA S. CHAUHAN, B.M. SHYAM PRASAD, JJ.
Union of India Ministry of Women And Child Development & Ors. - Appellants
Vs.
Mr. Ankur Gupta S/o Sri. Krishna Kant & Ors. - Respondents
Writ Appeal No. 2259 of 2018, (Gm-Res) And Writ Appeal No. 2675 of 2018 (Gm-Res) A/W. C.C.C. Nos. 1690-1691 of 2018
Decided On : 04-09-2018
For the Appellant : Sri. Nataraj. R, CGC.
For the Respondent: Smt. Jayna Kothari, Adv.
The main legal point established in the judgment is that the change in citizenship status of prospective adoptive parents during the adoption process should not result in the loss of their seniority or entitlement to adopt an Indian child.
Headnote:
Adoption - Citizenship - Juvenile Justice Act, 2015 - Regulations, 2017 - Section 59 of Juvenile Justice Act, 2015 - Guidelines, 2015 - Overseas Citizens of India - Seniority List - Referral for Adoption
Fact of the Case:
The case involves a couple, one an Indian citizen and the other a US citizen, who registered for adoption as 'Indians living in India' under the Guidelines, 2015. The couple later obtained Overseas Citizens of India (OCI) status and sought to continue their first application for adoption, which was declared invalid by the authorities.
Finding of the Court:
The Writ Court found that the couple had not suppressed any material fact and were entitled to pursue their first application as 'Indians living in India' despite the change in citizenship status of one of the spouses. The court also held that the appellants had extended hope to the couple by referring a child for adoption and were directed to consider the couple's claim on the basis of their first application.
Issues: The main issue was whether the couple could continue their first application for adoption as 'Indians living in India' after obtaining OCI status, and whether this would contravene Section 59 of the Juvenile Justice Act, 2015.
Ratio Decidendi: The court analyzed the differences between the Guidelines, 2015 and the Regulations, 2017 in terms of seniority of prospective adoptive parents and the implications of the change in citizenship status during the adoption process. The court held that the couple's seniority should not be lost due to the change in citizenship status and that their entitlement to adopt an Indian child remained despite the change.
Final Decision: The writ appeal was rejected, and the appellants were 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 the order.
The Writ Appeal is filed by the Union of India, represented by the Ministry of Women and Child Development, appellant No.1, and by the Central Adoption and Resources Agency (‘CARA’, for short), the appellant No.2. The writ appeal is listed, in the category of ‘Orders’, on interim application, namely, I.A.No.2/2018, filed by the appellants. Simultaneously, the contempt petition, namely CCC No. 1690- 1691/2018 filed by the second and third respondents is also listed today. But, with the consent of the learned counsel for the parties, both the writ appeals, and the contempt petitions are taken up for final disposal.
2. The brief facts of the case are 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 States 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.
3. According to the Guidelines governing Adoption of Children, 2015 (‘ the Guidelines, 2015’, for short), a couple, one of whom is an Indian Citizen, could register for the purpose of adopting a child as ‘Indians in India’, despite the fact that the other partner is a non-Indian Citizen. Since the respondent No.1 continued to be an Indian Citizen, while the respondent No.2 was U.S. citizen, the couple (the respondent No. 1 and 2) registered themselves for adoption on 19.7.2016 as 'Indians living in India' in accordance with Guideline No.15 of the Guidelines, 2015.
4. According to the Guidelines, 2015, a Home Study Report has to be prepared by a Specialized Adoption Agency in order to co-ordinate 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. However, 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. This turn of event spiraled into the present proceedings.
5. 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 super session of the Guidelines Governing Adoption of Children, 2015.
6. Since the respondents had informed the Specialised Adoption Agency about the change in their citizenship status, the Specialised Agency informed the appellant No.2, through e-mail dated 5.12.2017, 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 Specialized Adoption Agency requested the appellants that the respondents’ seniority for adoption of a child should be continued on the basis of the first registration. Therefore, the Specialised Adoption Agency requested the appellant No.2 that the seniority of the respondents should be continued on the basis of their first registration.
7. By e-mail dated 6.12.2017, the appella
