The Difference Between In Country Adoption And Inter-Country Adoption Cannot Be Lost Sight Of: SC [Read Judgment]

A couple, eager to adopt a child, 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. While this application was pending, one of them acquired US citizenship (the other was already one). On 01.01.2018, Baby Shomya was referred for adoption by the couple. However, the authority informed them that, their request for permission to continue the first application dated 19.07.2016, as Indians living in India Prospective Adoptive Parents, was declared as invalid, because they are not Indian Prospective Adoptive Parents anymore. They were further informed that they will, instead, have to wait for a referral of another child as 'Overseas Citizen of India'.

They filed writ petition before Delhi High Court, which directed the Authority to examine the request of the couple on the basis of their first application dated 19.07.2016 expeditiously. The Union of India then approached the Apex Court challenging this order. (Union of India vs. Ankur Gupta)

The bench comprising Justice Ashok Bhushan and Justice KM Joseph observed that, since 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 court said.

The court also dealt with the contention 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. The bench said:

"Even if there is a single seniority list, now contemplated by Regulation 41, a 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). 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."

While setting aside the High Court order, the bench, however, added that, if 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 parents, the child shall be given in adoption to the couple in inter-country adoption.

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