Ankur Gupta and another vs The Central Adoption and Resources Agency and others. Writ Petition 12427/2018 decided on 19 June 2018.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/220296/1/WP12427-18-19-06-2018.pdf
Overture : “MY NAME IS “TODAY”. “We are guilty of many errors and many faults, But our worst crime is abandoning the children; Neglecting the fountain of life. Many things we need can wait, But the child cannot. Right now is the time; His bones are being formed, His blood is being made, His senses are being developed. To him, we cannot answer, “Tomorrow”, His name is “Today”.
Relevant paragraphs: 16. Hague Convention on Inter Country Adoption came to be signed on 9:1:2003 and has come into force with effect from 1:10:2003 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.
17. 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.
18. 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.
19. ….adoption Regulations notified 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.
22. Chapter III of the Regulation provides for procedure for adoption by PAP’s who are resident Indians and Chapter IV provides for adoption by PAP’s who are non resident Indian, Overseas Citizen of India and Foreign Prospective Adoptive Parents. Regulation 14 as found in Chapter IV would indicate that Non Resident Indian Prospective Adoptive Parents would be treated at par with Indians living in India in terms of priority of adoption of Indian orphan, abandoned or surrendered children. Regulation 21(1) discloses if one of the PAP’s is a foreigner and other is an Indian, such cases shall be treated at par with Indians living in India.
30.….first petitioner was an Indian citizen and second petitioner though was of Indian origin, had acquired the citizenship of USA by birth and as such, she has clearly declared in the first application her nationality by birth as ‘USA Citizen’. It would be apt and appropriate to note at this juncture, at the cost of repetition, that Regulation 21(1) mandates that even if one of the PAP is a foreigner and the other is an Indian, such case is to be treated on par with the Indians living in India.
Petition allowed. Mandamus is issued to respondents to consider and examine the application submitted by petitioners ..by keeping in mind the observations made herein above
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 