Case: UNION OF INDIA Vs. ANKUR GUPTA

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 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 child4.2 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 19.07.20164.3 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 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 05.12.20164.4 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 4 th January 2017 in supersession of the Guidelines Governing Adoption of Children, 20154.5 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 respondents seniority for adoption of a child should be continued on the basis of the first registration4.6 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 India4.7 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 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 India4.8 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 order4.9 The learned Single Judge vide its judgment and order dated 19.06.2018 allowed the writ petitions by passing following 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 – Annexure- A/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 above4.10 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 dated04.09.2018. 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 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 order31. 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 closed4.11 The appellants aggrieved by the said judgment have filed these appeals.

Reasoning: 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, 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 immediately14. 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 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 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 appeals15. 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 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 eligible overseas citizens of India and further due to consequences of events and facts as noticed above.