Hon'ble Mr. Justice Ashok Bhushan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2017-2020 OF 2019
(arising out of S.L.P.(C) Nos.1476-1479 of 2019)
UNION OF INDIA & ANR. ETC. ...APPELLANTS
Vs.
ANKUR GUPTA & ORS. ...RESPONDENTS
J U D G M E N T
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
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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
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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
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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.
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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 eligibility of the couple for adoption
would be in the category of “OCI living in
India”.
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4.7 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. The respondent Nos. 1
& 2 visited Baby Shomya, who was with the
respondent No.3 at Patna. Therefore, on
04.01.2018, the respondent Nos.1 & 2 wrote to
the CEO of the appellant No.2 requesting for
continual of the reference of Baby Shomya for
adoption. The respondent Nos.1 & 2, who
apprehended that the referral of Baby Shomya
for adoption would expire on 18.01.2018,
repeatedly corresponded with the appellants
as a follow-up for completing the adoption of
Baby Shomya. Again, in the month of March
2018, the respondent nos. 1 & 2 visited Baby
Shomya. During this visit, they were informed
that in a High-Level Committee Meeting on
27.02.2018, their request for permission to
continue the first application dated
19.07.2016, as Indians living in India
Prospective Adoptive Parents, was declared as
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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’.
4.8 Therefore, the respondent Nos. 1 and 2 filed
writ petition, namely, W.P. Nos. 12427-428 of
2018, impugning the aforesaid decision, which
was communicated to them over an e-mail dated
15.03.2018. The Writ Court allowed the writ
petitions by order dated 19.06.2018. The writ
Court quashed the aforesaid decision
communicated vide the e-mail dated
15.03.2018. Further, the High Court directed
the appellants to consider and examine the
request of the respondent Nos.1 & 2 on the
basis of their first application dated
19.07.2016 expeditiously, but within 15 days
from the date of receipt of this order.
4.9 The learned Single Judge vide its judgment
and order dated 19.06.2018 allowed the writ
petitions by passing following order:-
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“ORDER
(1) Writ petitions are hereby
allowed.
(2) Communication dated 15.03.2018-
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 – AnnexureA/Annexure-R-2 expeditiously, at
any rate, within 15 days from the
date of receipt of this order, by
keeping in mind the observations
made herein above. “
4.10 Union of India and Central Adoption Resources
Agency, Ministry of Women & Child Development
filed Writ Appeal No. 2259 of 2018 and Writ
Appeal No. 2675 of 2018 against the judgment.
Two Contempt Applications being C.C.C. Nos.
1690-1691 of 2018 were also filed by
respondent Nos. 1 and 2, which were also
considered and decided by Division Bench of
High Court vide its judgment dated
04.09.2018. The Division Bench of the High
Court vide its judgment dated 04.09.2018
dismissed the writ appeals. The Division
Bench affirmed the order of the learned
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Single Judge. While dismissing the writ
appeals, the contempt petitions were also
closed. It is useful to extract paragraph
Nos. 30 and 31 of the judgment, which is
relevant for the present case:-
“30. For the aforesaid reasons,
this Court is of the considered
opinion that the Writ Court has
rightly concluded that the
appellants were not justified in
denying the benefit of referral of
the child, Baby Shomya, for
adoption by the respondent Nos.1
and 2, and that no grounds are made
out for interference with the
exercise of extraordinary
jurisdiction by the Writ Court
under Article 226 of the
Constitution of India in the
peculiar facts and circumstances
that congeal into exceptional
circumstances. Therefore, the Writ
appeal is rejected and
consequentially, the pending
applications are also disposed of.
The appellants are 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 this order.
31. In view of the dismissal of
the writ appeal, and the further
direction to the appellants to
implement the directions of the
Writ Court within the further
period as stated above, the
contempt proceeding is closed.”
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4.11 The appellants aggrieved by the said judgment
have filed these appeals.
5. Shri Aman Lekhi, learned ASG appearing for the
appellants submits that High Court, both learned
Single Judge and Division Bench erred in not
correctly construing the provisions of Sections 57,
58 and 59 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 as well as the
Adoption Regulations, 2017. It is submitted that the
respondent No.1 after submitting first application on
19.07.2016 for in country adoption having acquired US
citizenship on 06.12.2016 went outside the zone of in
country adoption. It is submitted that the second
application was submitted by the respondents on
05.11.2017 for inter country adoption but in that
second application, the respondents have given their
different identity and mobile numbers. It is
submitted that the respondent having gone out of zone
of consideration for in country adoption, their
application cannot be directed to be considered on
the basis of seniority for in country adoption. It
is submitted that there are more than 22,000 parents
waiting, according to seniority, for in country
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adoption, respondents cannot stroll march over them.
It is submitted that offer to adopt Shomya, which was
sent on 01.01.2018 was on the basis of first
application of the respondents and after the
respondents informed in writing on 04.01.2018 about
their second registration dated 05.11.2017, the
communication was sent to the respondents that
decision regarding their seniority will be taken by
the competent authority. The communication was sent
on 15.03.2018 to the respondents that they cannot be
given the benefit of their seniority on the basis of
their first application and they have to wait for
receiving an offer as overseas citizen of India. It
is submitted that there were no special circumstances
on the basis of which any exception can be made in
favour of the respondents as has been directed by the
High Court.
6. Learned counsel appearing for the respondents
submits that the Act, 2015 and the Regulations, 2017
do not provide for any mechanism when Indian parents,
who have already got themselves registered for
adoption acquires the foreign citizenship. It is
submitted that as per Regulation 41 of the
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Regulations, 2017, a common seniority list is
contemplated, which means that respondents shall
retain their seniority position on the basis of first
application. Thus, offer to adopt Shomya to the
respondents cannot be faulted. It is submitted that
respondent Nos.1 and 2 being fully competent for
applying for adoption, who are still qualified and
economically stable and eager to adopt the child
cannot be denied their right merely because the
respondent No.1 was conferred the US citizenship on
06.12.2016, i.e., much after submission of their
first application as Indian parent.
7. It is submitted that even though respondent Nos.1
and 2 have been conferred US citizenship, both are
residing in Bangalore, India and in both the
applications, their residence is shown as India,
hence in peculiar circumstances, they have rightly
been offered child Shomya for adoption. It is
submitted that the respondent Nos. 1 and 2 bonafide
has not concealed any information and has bonafide
submitted their application on 05.11.2017 as Overseas
Citizen of India and the fact that immediately when
they received offer for adoption of Shomya on
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02.01.2018, on 04.01.2018, they sent an e-mail giving
details of both the applications. The respondents
have been bonafide pursuing their claim for adoption,
they having not been blessed with a child even though
after happy marital life of more than ten years. It
is submitted that the High Court has rightly held
that present case can be considered as an exceptional
case and without making it a precedent, the adoption
in favour of the respondents be allowed to maintain.
8. We have considered the submissions of the learned
counsel for the parties and have perused the records.
9. The 2015 Act, Chapter VIII deals with adoption.
Section 56 sub-section (1) provides that adoption
shall be resorted to for ensuring right to family for
the orphan, abandoned and surrendered children, as
per the provisions of the Act, the rules made
thereunder and the adoption regulations framed by the
authority. Section 57 deals with eligibility of
prospective adoptive parents, which is as follows:-
57. Eligibility of prospective adoptive
parents.--(1) The prospective adoptive
parents shall be physically fit,
financially sound, mentally alert and
highly motivated to adopt a child for
providing a good upbringing to him.
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(2) In case of a couple, the consent of
both the spouses for the adoption shall be
required.
(3) A single or divorced person can also
adopt, subject to fulfilment of the
criteria and in accordance with the
provisions of adoption regulations framed
by the Authority.
(4) A single male is not eligible to adopt
a girl child.
(5) Any other criteria that may be
specified in the adoption regulations
framed by the Authority
10. Section 58 deals with procedure for adoption by
Indian prospective adoptive parents living in India,
which is to the following effect:-
58. Procedure for adoption by Indian
prospective adoptive parents living in
India.--(1) Indian prospective adoptive
parents living in India, irrespective of
their religion, if interested to adopt an
orphan or abandoned or surrendered child,
may apply for the same to a Specialised
Adoption Agency, in the manner as provided
in the adoption regulations framed by the
Authority.
(2) The Specialised Adoption Agency shall
prepare the home study report of the
prospective adoptive parents and upon
finding them eligible, will refer a child
declared legally free for adoption to them
along with the child study report and
medical report of the child, in the manner
as provided in the adoption regulations
framed by the Authority.
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(3) On the receipt of the acceptance of the
child from the prospective adoptive parents
along with the child study report and
medical report of the child signed by such
parents, the Specialised Adoption Agency
shall give the child in pre-adoption foster
care and file an application in the court
for obtaining the adoption order, in the
manner as provided in the adoption
regulations framed by the Authority.
(4) On the receipt of a certified copy of
the court order, the Specialised Adoption
Agency shall send immediately the same to
the prospective adoptive parents.
(5) The progress and well-being of the
child in the adoptive family shall be
followed up and ascertained in the manner
as provided in the adoption regulations
framed by the Authority.
11. The next provision, which needs to be noticed is
Section 59, which provides for procedure for intercountry adoption of an orphan or abandoned or
surrendered child, which is as follows:-
59. Procedure for inter-country adoption
of an orphan or abandoned or surrendered
child.--(1) If an orphan or abandoned or
surrendered child could not be placed with
an Indian or non-resident Indian
prospective adoptive parent despite the
joint effort of the Specialised Adoption
Agency and State Agency within sixty days
from the date the child has been declared
legally free for adoption, such child shall
be free for inter-country adoption:
Provided that children with physical and
mental disability, siblings and children
above five years of age may be given
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preference over other children for such
inter-country adoption, in accordance with
the adoption regulations, as may be framed
by the Authority.
(2) An eligible non-resident Indian or
overseas citizen of India or persons of
Indian origin shall be given priority in
inter-country adoption of Indian children.
(3) A non-resident Indian or overseas
citizen of India, or person of Indian
origin or a foreigner, who are prospective
adoptive parents living abroad,
irrespective of their religion, if
interested to adopt an orphan or abandoned
or surrendered child from India, may apply
for the same to an authorised foreign
adoption agency, or Central Authority or a
concerned Government department in their
country of habitual residence, as the case
may be, in the manner as provided in the
adoption regulations framed by the
Authority.
(4) The authorised foreign adoption agency,
or Central Authority, or a concerned
Government department, as the case may be,
shall prepare the home study report of such
prospective adoptive parents and upon
finding them eligible, will sponsor their
application to Authority for adoption of a
child from India, in the manner as provided
in the adoption regulations framed by the
Authority.
(5) On the receipt of the application of
such prospective adoptive parents, the
Authority shall examine and if it finds the
applicants suitable, then, it will refer
the application to one of the Specialised
Adoption Agencies, where children legally
free for adoption are available.
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(6) The Specialised Adoption Agency will
match a child with such prospective
adoptive parents and send the child study
report and medical report of the child to
such parents, who in turn may accept the
child and return the child study and
medical report duly signed by them to the
said agency.
(7) On receipt of the acceptance of the
child from the prospective adoptive
parents, the Specialised Adoption Agency
shall file an application in the court for
obtaining the adoption order, in the manner
as provided in the adoption regulations
framed by the Authority.
(8) On the receipt of a certified copy of
the court order, the specialised adoption
agency shall send immediately the same to
Authority, State Agency and to the
prospective adoptive parents, and obtain a
passport for the child.
(9) The Authority shall intimate about the
adoption to the immigration authorities of
India and the receiving country of the
child.
(10) The prospective adoptive parents shall
receive the child in person from the
specialised adoption agency as soon as the
passport and visa are issued to the child.
(11) The authorised foreign adoption
agency, or Central Authority, or the
concerned Government department, as the
case may be, shall ensure the submission of
progress reports about the child in the
adoptive family and will be responsible for
making alternative arrangement in the case
of any disruption, in consultation with
Authority and concerned Indian diplomatic
mission, in the manner as provided in the
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adoption regulations framed by the
Authority.
(12) A foreigner or a person of Indian
origin or an overseas citizen of India, who
has habitual residence in India, if
interested to adopt a child from India, may
apply to Authority for the same along with
a no objection certificate from the
diplomatic mission of his country in India,
for further necessary actions as provided
in the adoption regulations framed by the
Authority
12. The respondent Nos.1 and 2 submitted their
application as prospective adoptive parents living in
India. Although, on the date of submission of
application, respondent No.2 was already a US
citizen, the respondent No.1 being Indian citizen,
the application was fully maintainable as per the
provisions of Regulations and as per the guidelines
applicable at the relevant time as Indian prospective
adoptive parents. Even Regulation 21(1) of
Regulations, 2017 provides that if one of the
prospective adoptive parents is foreigner and other
is an Indian, such case shall be treated at par with
Indians living in India. After the respondent No.1
acquired the US citizenship on 06.12.2016 and OCI
card was issued to respondent No.1 on 27.04.2017,
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second application was submitted on 05.11.2017 by the
respondents for inter-country adoption both having
become US citizens. In view of the fact that both
had become US citizens by 06.12.2016, they were not
eligible for adoption as Indian prospective adoptive
parents living in India. Mere fact that Act or
Regulations does not provide for any mechanism to
upload any further information in first registration
cannot alter the legal position and consequences of
acquiring the foreign citizenship by an Indian. The
consequences of obtaining US citizenship of
respondent Nos.1 and 2 shall take its effect
immediately.
13. The submission of learned counsel for the
respondents that Regulation 41 deals with common
seniority list also need to be noted. Regulation 41
of the Regulations, 2017 is as follows:-
41. Seniority of the prospective adoptive
parents.- (1) The prospective adoptive
parents shall be referred children on the
basis of a single seniority list, which
shall be maintained from the date of
registration and other criteria as
stipulated under these regulations.
(2) The seniority of resident Indians shall
be based on the date of online registration
and submission of the documents, except for
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Home Study Report, in Child Adoption
Resource Information and Guidance System.
(3) The seniority of Non Resident Indian or
Overseas Citizen of India or foreign
prospective adoptive parents shall be based
on the date of online registration and
submission of the requisite documents
alongwith Home Study Report in Child
Adoption Resource Information and Guidance
System.
(4) Prospective adoptive parents shall be
allowed to change the State preference once
within sixty days from the date of
registration and in case they change the
State preference after sixty days from the
date of registration, they shall be placed
at the bottom of the seniority list in the
changed State.
(5) Seniority of prospective adoptive
parents registered as single, but married
later shall be counted from the date of
registration as single after receipt of
fresh Home Study Report.
(6) Prospective adoptive parents registered
for normal child, shall be able to adopt a
special need child or hard to place child
with the same registration.
14. It is also submitted that prior to Regulations,
2017, there were two separate seniority lists, which
were maintained under the Guidelines, 2015, which has
been now made a single seniority list. Even if there
is a single seniority list, now contemplated by
Regulation 41, a placement in the seniority list with
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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). Even if the common seniority list has to be
utilised for the purpose of in country adoption and
inter-country adoption as per the respective
categories, the difference between in country
adoption and inter-country adoption cannot be lost
sight or given a go bye by the mere fact that a
common seniority list is maintained. It is true that
Regulation 41 or any other Regulation does not
contemplate a situation when a resident Indian after
acquiring the foreign citizenship submits a fresh
registration, what is the consequence and value of
its first registration. Even though regulations are
silent and do not provide for any mechanism or any
answer to such fact situation, the natural
consequences of acquiring foreign citizenship shall
follow. We, thus, find force in the submission of
the learned ASG that the right of respondent Nos. 1
and 2 for adoption as resident Indian is lost after
respondent No.1 having acquired the US citizenship on
06.12.2016. Offer of the child to the respondent
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Nos. 1 and 2 was based on their first application
dated 19.07.2016, in which if the clause of foreign
citizenship is ignored, was in accordance with the
Act and the Rules. Further, whether the factum of
respondent No.1 acquiring US citizenship on
06.12.2016 should be ignored for the purposes of
adoption or not is the question, which is required to
be addressed and answered in these appeals.
15. Section 58 and 59 provides for two different
mechanisms for adoption. As per Section 59(1), if an
orphan or abandoned or surrendered child could not be
placed with an Indian or non-resident Indian
prospective adoptive parents despite the joint effort
of the Specialised Adoption Agency and State Agency
within sixty days from the date the child has been
declared legally free for adoption, such child shall
be free for inter-country adoption. Thus, sixty days
period has to be elapsed from the date when the child
has been declared legally free for adoption. In the
present case, child was declared free for adoption on
14.12.2017 by Child Welfare Committee, Patna, Bihar.
Before expiry of sixty days, child could not have
been offered for adoption to parents, who are
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eligible for adoption under Section 59. We are,
however, not oblivious to the fact that respondent
Nos.1 and 2 had been bonafide pursuing their
applications for adoption, initially as resident
Indians and thereafter even as overseas citizens of
India. As per Section 57, both the respondent Nos.1
and 2 are fully eligible and competent to adopt the
child. It was under the circumstances as noticed
above that the child Shomya was offered to respondent
Nos.1 and 2, who rightly communicated their
acceptance and communicated with the child and are
willing to take child in adoption and to take all
care and provide good education to her. We have no
doubt in the bonafide or the competence of respondent
Nos.1 and 2 in their effort to take the child in
adoption, but the statutory procedure and the
statutory regime, which is prevalent as on date and
is equally applicable to all aspirants, i.e., Indian
prospective adoptive parents and prospective adoptive
parents for inter-country adoption, cannot be lost
sight. However, by virtue of Section 59(2), the
respondent Nos.1 and 2 can at best may be given
priority in inter-country adoption, they being
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eligible overseas citizens of India and further due
to consequences of events and facts as noticed above.
16. In view of the foregoing discussions, we are of
the view that ends of justice be served in disposing
the Civil Appeals arising out of SLP (C) Nos. 1476-
1477 of 2019 in following manner:
(i) The decision dated 27.02.2018 as
communicated to the respondent Nos. 1 and 2
by e-mail dated 15.03.2018 is upheld.
(ii) Judgments of learned Single Judge as well
as of Division Bench in so far as it
directs to consider and examine the
application of respondent Nos. 1 and 2 on
the basis of first registration dated
19.07.2016 are set aside.
(iii) The competent authority shall again notify
the child Shomya legally free for adoption,
which notification shall be issued within
one week from today.
(iv) That in event, within sixty days from the
date the child(Shomya) is declared as
legally free for adoption is not taken by
or adopted by Indian prospective adoptive
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parents, the child Shomya shall be given in
adoption to the respondent Nos.1 and 2 in
inter-country adoption. All consequential
steps thereafter shall be completed.
17. Now, coming to Civil Appeals arising out of SLP
(C) Nos. 1478-1479, these appeals have been filed
against the order dated 04.09.2018 passed in C.C.C.
Nos. 1690-1691 of 2018, the contempt proceedings
having been closed by the Division Bench by its
impugned judgment dated 04.09.2018, nothing more is
required to be said in that regard. We, however,
observe that filing of the contempt applications in
the fact situation of the present case was illadvised. Both the contempt applications deserve to
be rejected. The appeals are allowed and contempt
applications stand rejected. Parties shall bear
their own costs.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
February 25, 2019.
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