The retrospective application of adoption regulations must consider individual circumstances, especially for parents of children with disabilities seeking to adopt a normal child.

JUDGMENT :

G.S. Kulkarni, J.

1. The petitioners are Prospective Adoptive Parents (PAP). They have two daughters born on 24 August 2014 and 20 June 2019 respectively. It is the petitioners case that these biological children suffer disability. The first daughter was diagnosed with Nystagmus a few months after her birth, followed by a cyst in her brain. She was operated for the removal of the cyst, but the damage in the process was permanent, which caused her visual impairment. So far as the younger daughter is concerned, it is stated that her case was falling into Global Developmental Delay as she suffers from (i) no eye contact, (ii) hearing impairment, (iii) syndromic facial features and (iv) delayed milestones. She has been issued Unique Disability ID under the provisions of the Persons with Disabilities Act, 2016.

2. It is in these circumstances, the petitioners on 10 September 2022 registered themselves as PAPs by registering on the Child Adoption Resource Information and Guidance System (“CARINGS”) portal of respondent no.1 being an application to adopt a child. At the time when such application was made the ‘Adoption Regulations 2017’, were in force. The receipt of the said application was confirmed. Also the acknowledgment letter noted that the Adoption Regulation 2017 were to be applied. The petitioners have contended that the petitioners also uploaded requisite documents on 10 September 2022 and applied to the recognized Specialized Adoption Agency recognized by respondent no.1 for conducting the home study report.

3. It is the petitioners’ case that during the pendency of their adoption a new regime under the Adoption Regulations 2022 (for short “the 2022 Regulations”) was brought into force vide notification dated 23 September 2022. Such rules are now made applicable by respondent in deciding the adoption applications. Our attention is drawn to Regulation 5(7) of the 2022 Regulations which inter alia provide that couples with two or more children shall only be considered for special needs children as specified in clause (25) of regulation 2, and hard to place children as stated in clause (13) of regulation 2 unless they are relatives or step-children. It is the petitioners’ contention that in fact the said rules ought not to have been applied to the petitioners’ application, considering the peculiar facts of the petitioners case. Also for the reason that as the 2017 Regulations (supra) were to be applied to the petitioners’ application as per the acknowledgement made on the petitioners’ application. This more particularly, as Regulation 9(10) of the 2017 Regulations required that a Home Study Report (“HSR” for short) was to be complied within 30 days from date of uploading of the requisite documents, hence, except for the delay of the authorities, the adoption process was required to be completed without the application of the 2022 Regulations of which, the petitioners contend that the Steering Committee was well aware.

4. On the backdrop of the 2022 Regulations, respondent no.1 issued an office memorandum dated 21 March 2023 providing that PAPs already having two children will not be ineligible to adopt a normal child, effectively making the 2022 Regulation retrospectively applicable.

5. It is the petitioners contention that when the petitioners accessed their account on the designated portal of the respondents, a message was reflected, on the home page, which informed the petitioners of the rejection of the petitioners’ application on the basis of the Office Memorandum dated 21 March 2023. The said communication reads thus:-

“Infot Congratulations! Your Home Study Report (HSR) has been approved and it has been decided to disallow the PAPs already having two children to adopt a normal child. Kindly see the office memorandum dat : 21-03-2023 uploaded in the CARA website.”

6. It is thus clearly seen from the aforesaid rejection of the petitioners’ application that the same has been rejected by applying the Office Memorandum