The Delhi High court quashed and set aside the order of the Central Adoption Resource Authority (CARA) obstructing the inter-country adoption of a minor child to a foreign couple. The High court has also directed the authorities to expedite the process of adoption.
The child was abandoned in 2019. She was found in a cremation ground in Uttar Pradesh. The child was in an orphanage in UP’s Bareilly for two years.
Justice Yashwant Varma allowed the petition moved by a foreign couple who were earlier given a NOC by CARA for the adoption of the child.
The couple had moved to the High court challenging a communication issued by CARA instructing the orphanage to withdraw the pending adoption petition, in respect of the child’s adoption, before the district court.
Justice Varma said, “The writ petition stands allowed. The impugned communication of 10 August 2022 issued by CARA shall stand quashed and set aside.
CARA is consequently directed to take further steps to complete the process of adoption in accordance with the No Objection Certificate which has been issued by it, the bench said.
“Bearing in mind the fact that Child “S” was abandoned in 2019, it is expected that all concerned authorities shall aid and assist in the expeditious conclusion of all legal formalities relating to her adoption by the petitioners,” the bench directed,
The court noted that the Child “S” was made available for inter-country adoption only when no reservation from a resident Indian, NRI or OCI card holder was forthcoming.
Undisputedly it was only after the statutory timelines for submission of such a reservation had come to an end that the child was placed for being reserved by a foreign PAP, the court noted.
The court said, “If a failure on the part of a resident Indian be the cause for a child being made available for inter-country adoption, that cannot possibly be viewed as constituting a valid or cogent ground to either doubt the validity of the adoption or question the integrity of the adoption process.”
The Court in any case is of the firm opinion that the validity of an adoption can neither be doubted nor questioned merely on an asserted “possibility of irregularity”, the court opined.
The petitioners here made a reservation for Child “S” on November 21 in 2021.
It is the categorical stand of CARA that no resident Indian, NRI or OCI card holder made a reservation during the statutorily prescribed period of 15 days as a consequence of which the case was opened for inter-country adoption.
The petitioners, the Prospective Adoptive Parents (PAP) made a reservation in favour of Child “S” thereafter. However, the adoption process does not appear to have been finalized within the stipulated period of 30 days and till December 21, 2021.
The dispute emanates from a complaint which is stated to have been made to the NCPCR by one Amit Kumar Mishra who had alleged that Child “S” had been rescued by his uncle and that the entire medical expenditure relating to her treatment in different hospitals had been born by the complainant and his family. That complaint was dated 04 August 2022. Thereafter, CARA had issued the communication
The complainant asserted that it was his family members who had rescued Child “S” and had been taking care of her needs and her medical expenses throughout.
It was further asserted that in the course of their interactions with Child “S”, both the complainant as well as his wife had become emotionally attached to Child “S”.
They are stated to have consequently applied for adoption and registered on the CARINGS portal on November 13, 2019.
It was alleged that on the website they could not see the details of Child “S” under the category of special needs children. It was further asserted that despite having made the application on November 13, 2019, they had not heard anything from CARA and nor had they been provided any information with respect to their adoption application.
The complainant goes on to allege that he had only recently come to know through a source that Child “S” has been given in adoption to persons residing in a foreign country despite the application that had been made by him. It would be relevant to note that the complainant admits that Child “S” was a special needs child in the complaint itself
The inspecting team of CARA categorically stated that no Resident Indian including the complainant or for that matter an NRI or an OCI card holder made any reservation with respect to Child “S” within the stipulated period of 15 days.
Guruswamy also laid stress on the fact that although Child “S” was placed for reservation on two occasions on CARINGS, neither the complainant nor any other resident Indian, NRI or OCI exercised an option that the law provides. It was submitted that on both occasions, it was only the petitioners who had exercised the required option.
While deciding the petition the court observed, “If a failure on part of a resident Indian be the cause for a child being made available for inter-country adoption, that cannot possibly be viewed as constituting a valid ground to either doubt the validity of the adoption or question the integrity of the adoption process.
“The act of adoption is not one of redemption or grace. An evolved human being, as we recognize ourselves to be, cannot perhaps perform a more pious duty than to embrace an infant who is left abandoned in this world, the bench further observed.
