Adoption Priority Clarified: Supreme Court Rules on Citizenship Change Impact on Adoption Process (25 February 2019)

Date of the Judgment: 25 February 2019
Citation: 2019 INSC 165
Judges: Ashok Bhushan, J., K.M. Joseph, J.
Can a change in citizenship status affect a couple’s place in the adoption queue? The Supreme Court of India recently addressed this critical question, focusing on the rights of prospective adoptive parents who initially register as Indian citizens but later acquire foreign citizenship. The core issue revolved around whether such parents could retain their original seniority for in-country adoptions. The judgment was delivered by a two-judge bench comprising Justice Ashok Bhushan and Justice K.M. Joseph, with Justice Ashok Bhushan authoring the opinion.

Case Background

The case involves Mr. Ankur Gupta and Ms. Geetika Agarwal, who married in the USA in June 2006. Ms. Agarwal became a US citizen in May 2016, while Mr. Gupta obtained US citizenship in December 2016. Before Mr. Gupta became a US citizen, they applied to adopt a child in India as Indian Prospective Adoptive Parents on July 19, 2016, through the Central Adoption Resource Information and Guidance System (CARINGS). At the time of application, Ms. Agarwal was already a US citizen, which was declared in the application. A Home Study Report was prepared by Shishu Mandir Agency on August 1, 2016. While awaiting a referral, Mr. Gupta also became a US citizen on December 5, 2016. The couple informed the Central Adoption Resource Agency (CARA) about this change in citizenship. Subsequently, they registered as Overseas Citizens of India (OCI) residing in India on November 5, 2017, under the Adoption Regulations, 2017.

The Specialized Adoption Agency, informed CARA about the change in citizenship status and requested that the couple’s seniority for adoption be continued based on their first registration. CARA responded that the request would be considered, but the couple’s eligibility would be under the “OCI living in India” category. On January 1, 2018, a child named Baby Shomya was referred for adoption to the couple, who accepted the referral on January 2, 2018. They visited Baby Shomya and requested that the referral be continued. However, on February 27, 2018, a High-Level Committee declared their first application invalid due to Mr. Gupta’s US citizenship. They were informed that they would have to wait for a referral as Overseas Citizens of India.

Timeline

Course of Proceedings

The couple filed writ petitions challenging the decision to invalidate their first application. The High Court allowed the writ petitions on June 19, 2018, quashing the decision and directing the appellants to consider their request based on their first application. The Union of India and the Central Adoption Resources Agency appealed this decision. The Division Bench of the High Court dismissed the appeals on September 4, 2018, affirming the Single Judge’s order. Contempt petitions filed by the couple were also closed. The appellants then filed the present appeals before the Supreme Court.

Legal Framework

The Supreme Court examined the following key provisions:

• Section 56(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015: This section states that “adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children, as per the provisions of the Act, the rules made thereunder and the adoption regulations framed by the authority.”
• Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015: This section outlines the eligibility criteria for prospective adoptive parents, stating that they must be physically fit, financially sound, mentally alert, and highly motivated to adopt. It also specifies that in the case of a couple, the consent of both spouses is required.
• Section 58 of the Juvenile Justice (Care and Protection of Children) Act, 2015: This section details the procedure for adoption by Indian prospective adoptive parents living in India. It requires them to apply to a Specialized Adoption Agency, which will prepare a home study report and refer a legally free child for adoption.
• Section 59 of the Juvenile Justice (Care and Protection of Children) Act, 2015: This section provides the procedure for inter-country adoption. It states that if a child is not placed with an Indian or non-resident Indian parent within sixty days, the child becomes free for inter-country adoption. It also gives priority to non-resident Indians, overseas citizens of India, and persons of Indian origin in inter-country adoptions.
• Regulation 21(1) of the Adoption Regulations, 2017: This regulation states that if one of the prospective adoptive parents is a foreigner and the other is an Indian, such a case shall be treated at par with Indians living in India.
• Regulation 41 of the Adoption Regulations, 2017: This regulation deals with the seniority of prospective adoptive parents. It states that children shall be referred based on a single seniority list maintained from the date of registration. The seniority of resident Indians is based on the date of online registration and submission of documents, while the seniority of non-resident Indians or overseas citizens of India is based on the date of online registration and submission of documents along with the Home Study Report.

Arguments

Appellants’ Submissions:

• The appellants argued that after Mr. Gupta acquired US citizenship, the couple went outside the zone of in-country adoption.
• They contended that the second application submitted by the respondents was for inter-country adoption, and the couple had given different identities and mobile numbers.
• The appellants submitted that the respondents could not be given the benefit of their seniority for in-country adoption because they were now overseas citizens of India.
• They argued that there were no special circumstances to justify an exception in favor of the respondents.

Respondents’ Submissions:

• The respondents argued that the Act of 2015 and the Regulations of 2017 do not provide for any mechanism when Indian parents who have registered for adoption acquire foreign citizenship.
• They submitted that Regulation 41 of the Regulations, 2017, contemplates a common seniority list, which means that the respondents should retain their seniority position based on their first application.
• The respondents argued that they are fully competent for applying for adoption, are still qualified, and are economically stable. They should not be denied their right merely because Mr. Gupta was conferred US citizenship after submitting their first application.
• They submitted that they had not concealed any information and had bonafide submitted their second application as Overseas Citizens of India.
• The respondents contended that the High Court rightly held that their case could be considered an exceptional one.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the High Court was correct in directing the appellants to consider the application of the respondents on the basis of their first registration dated 19.07.2016.
2. Whether the fact that respondent No.1 acquired US citizenship on 06.12.2016 should be ignored for the purposes of adoption.

Treatment of the Issue by the Court

Authorities

The Court considered the following legal provisions and regulations:

• Section 56(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015: This section emphasizes the right to family for children through adoption.
• Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015: This section outlines the eligibility criteria for prospective adoptive parents.
• Section 58 of the Juvenile Justice (Care and Protection of Children) Act, 2015: This section provides the procedure for adoption by Indian prospective adoptive parents living in India.
• Section 59 of the Juvenile Justice (Care and Protection of Children) Act, 2015: This section provides the procedure for inter-country adoption.
• Regulation 21(1) of the Adoption Regulations, 2017: This regulation states that if one of the prospective adoptive parents is a foreigner and the other is an Indian, such a case shall be treated at par with Indians living in India.
• Regulation 41 of the Adoption Regulations, 2017: This regulation deals with the seniority of prospective adoptive parents.

Judgment

The Supreme Court held that the couple’s first application could not be considered for in-country adoption after Mr. Gupta acquired US citizenship. The Court stated that “the natural consequences of acquiring foreign citizenship shall follow.” The Court also noted that while Regulation 41 contemplates a single seniority list, it does not negate the difference between in-country and inter-country adoption. The Court further observed 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.” The Court also observed that “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.”

The Court directed that the child, Shomya, be notified again as legally free for adoption. If the child is not adopted by Indian prospective adoptive parents within sixty days, she should be given to the respondents for inter-country adoption.

What weighed in the mind of the Court?

The Court’s decision was primarily influenced by the need to adhere to the statutory procedures and regulations governing adoption. The Court emphasized that acquiring foreign citizenship has legal consequences that cannot be ignored, especially concerning in-country adoption eligibility. While acknowledging the respondents’ bonafide intentions and competence, the Court prioritized the correct application of the law and the equal treatment of all prospective adoptive parents. The Court’s reasoning focused on the fact that the couple’s circumstances changed after their initial application and that the legal framework did not provide a mechanism to ignore this change.

Key Takeaways

• Adherence to Procedures: Prospective adoptive parents must strictly adhere to the statutory procedures and regulations governing adoption.
• Impact of Citizenship Changes: Acquiring foreign citizenship after registering for in-country adoption can affect eligibility and seniority.
• Separate Categories: The distinction between in-country and inter-country adoption must be maintained, even with a single seniority list.
• Priority for OCI: Overseas Citizens of India are given priority in inter-country adoptions.

Directions

The Supreme Court issued the following directions:

• The decision dated 27.02.2018, communicated on 15.03.2018, is upheld.
• The judgments of the Single Judge and Division Bench, directing consideration of the application based on the first registration, are set aside.
• The competent authority shall re-notify Baby Shomya as legally free for adoption within one week.
• If Baby Shomya is not adopted by Indian prospective adoptive parents within sixty days, she shall be given in inter-country adoption to the respondents.

Development of Law

The ratio decidendi of this case is that when an Indian prospective adoptive parent acquires foreign citizenship after registering for in-country adoption, their eligibility for in-country adoption is lost, and they must apply under the inter-country adoption process. This judgment clarifies that the consequences of acquiring foreign citizenship cannot be ignored and that the statutory procedures must be strictly followed.

Conclusion

The Supreme Court’s judgment clarifies the impact of acquiring foreign citizenship on the adoption process for Indian prospective parents. The Court held that a couple who initially applied for in-country adoption lost their eligibility after one of them acquired US citizenship. The Court emphasized the importance of adhering to statutory procedures and the distinction between in-country and inter-country adoption. While acknowledging the couple’s competence and bonafide intentions, the Court prioritized the correct application of the law and equal treatment of all prospective adoptive parents.