Union Of India vs Ankur Gupta

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.

the respondent No.1 applied for American citizenship. However, till 2016, when the 2 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 3 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.

4 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”.

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 6 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:- 7

(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.

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:

(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 24 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 ill- advised. Both the contempt applications deserve to be rejected. The appeals are allowed and contempt applications stand rejected. Parties shall bear their own costs.