The Bombay High Court Wednesday dismissed a plea by a Pune-based couple that challenged the decision of the Central Adoption Resource Agency (CARA) to deny their request to adopt a six-year-old son who is a United States citizen. His biological parents are related to the petitioner couple.
The court said it was “clear that there was no provision in Juvenile Justice (Care and Protection of Children) Act (JJ Act), 2015 nor the Adoption Regulations providing for adoption of a child of foreign citizenship even between relative, unless the ‘child is in need of care and protection’ or a ‘child is in conflict with law (CCL)’”.
A bench of Justices Revati Mohite-Dere and Neela K Gokhale in its verdict noted that the plea “brings to the attention of the Court an unprecedented situation relating to the applicability of the JJ Act and the Adoption Regulations framed under the said Act, to the adoption of a child being a citizen of the USA by relatives of the child’s biological parents.”
Advocates Shirin Merchant and Stuti Oswal, for the petitioners, sought direction from the CARA to register them as prospective adoptive parents and issue a pre-approval letter to facilitate the adoption of the US national boy, who is the son of the petitioner woman’s sister.
The petitioner couple stated that as they were unable to bear a child, they desired to adopt the boy. He was born in the US in 2019 and holds a US passport. The petitioner couple, with the intention of adopting him, brought the boy to India when he was a few months old.
The CARA rejected their request for adoption on the grounds that the regulations do not permit the facilitation of the adoption of an American citizen. The couple had also approached the Pune district court seeking adoption, which was pending due to the CARA’s refusal to approve the adoption.
Advocate Merchant claimed before the high court that US authorities were likely to refuse renewal of the boy’s passport without a valid adoption order, and his stay in India may become illegal. The plea added that the child is attending school in India and is required to travel to the US every year to renew his visa, failing which he may become an illegal migrant in India; therefore, considering his “stability, identity and future prospects”, the CARA should be directed to give clearance for adoption. The petitioners sought the relaxation of guidelines and the granting of an exception to regulations by the CARA.
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Moreover, the biological parents of the child, through advocate Yugandhara Khanwilkar, claimed that the present adoption would fall under the ambit of in-country adoption and not inter-country adoption as the petitioners and their biological parents are Indian citizens.
Justice Gokhale observed that such private and relative intercountry adoptions were “incompatible” with the International Hague Convention on Adoption of Children, of which India is a signatory. The high court said such adoptions are not considered authorised adoptions.
There is no fundamental right of the petitioners to adopt an American child who does not fall within the applicability of the JJ Act and the regulations, even if he is born to Indian parents, the court noted.
“Neither is there any violation of any fundamental right of the child of American nationality to be adopted by an Indian citizen,” the high court recorded.
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It added that while the petitioners’ difficulty can easily be resolved based on the CARA’s suggestion that the child can apply for Indian citizenship and then follow the procedure under the JJ Act, or the petitioners can process the adoption in the US as per the laws applicable in that country. However, the court noted that the petitioners were not inclined to accept the suggestion, and it was inclined to dismiss the petition.