UNION OF INDIA & ANR. ETC. versus ANKUR GUPTA & ORS. on 25 February 2019

UNION OF INDIA & ANR. ETC.

v.

ANKUR GUPTA & ORS.

(Civil Appeal Nos. 2017-2020 of 2019)

FEBRUARY 25, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Juvenile Justice (Care and Protection of Children) Act,2015 – s.57, 58 & 59 – Adoption Regulations, 2017 (framed u/s.68(C) r/w. cl.(3) of s.2 of the Act, 2015) – r.41 – Respondent Nos.1& 2 submitted application to adopt a child as Indian ProspectiveAdoptive Parents – At that time, only respondent No.2 had citizenshipof USA – When both the respondents were waiting for referral of achild for adoption, the respondent no.1 was also granted the U.S.citizenship – On communication of the aforesaid development, thecompetent authority referred the respondents’ to second registrationunder category ‘Overseas Citizen of India’– Respondents requestedto continue their registration on the basis of the first registration –Meanwhile, a baby ‘S’ was referred to the respondents, foradoption – Respondents accepted the referral – However, a High-level Committee rejected their request for permission to continuethe first application under the category India Prospective AdoptiveParents – Consequently, respondents were informed to wait for areferral of another child as ‘Overseas Citizen of India’ – Writ petitionfiled by Respondents against the said decision was allowed – Onappeal, held: The fact that both respondents had become U.S.citizens, they were not eligible for adoption as Indian Prospectiveadoptive parents living in India – Mere fact that Act or Regulationsdoes not provide for any mechanism to upload any furtherinformation in first registration cannot alter the legal position andconsequences of acquiring the foreign citizenship by an Indian –The consequences of obtaining U.S. citizenship of respondent nos.1 & 2 shall take its effect immediately – Therefore, by virtue of s.58& s.59 of the Act, 2015 baby ‘S’ referred to the respondents declaredas legally free for adoption and in event adoption is not taken byIndian prospective adoptive Parents within sixty days, the baby ‘S’to be given to respondents in inter-Country adoption.

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32SUPREME COURT REPORTS

ADisposing of the matters, the Court

HELD: 1. The respondent Nos.1 and 2 submitted theirapplication as prospective adoptive parents living in India.Although, on the date of submission of application, respondentNo.2 was already a US citizen, the respondent No.1 being IndianBcitizen, the application was fully maintainable as per the provisionsof Regulations and as per the guidelines applicable at the relevanttime as Indian prospective adoptive parents. Even Regulation21(1) of Adoption Regulations, 2017 provides that if one of theprospective adoptive parents is foreigner and other is an Indian,such case shall be treated at par with Indians living in India. AfterCthe respondent No.1 acquired the US citizenship on 06.12.2016and ‘Overseas Citizen of India’ (OCI) card was issued torespondent No.1 on 27.04.2017, second application was submittedon 05.11.2017 by the respondents for inter-country adoption bothhaving become US citizens. In view of the fact that both hadDbecome US citizens by 06.12.2016, they were not eligible foradoption as Indian prospective adoptive parents living in India.Mere fact that Act or Regulations does not provide for anymechanism to upload any further information in first registrationcannot alter the legal position and consequences of acquiring theforeign citizenship by an Indian. The consequences of obtainingEUS citizenship of respondent Nos.1 and 2 shall take its effectimmediately.[Para 12][42-G, H; 43-A-C]

2. Section 58 and 59 of Juvenile Justice (Care andProtection of Children) Act, 2015 provides for two differentmechanisms for adoption. As per Section 59(1), if an orphan orFabandoned or surrendered child could not be placed with an Indianor non-resident Indian prospective adoptive parents despite thejoint effort of the Specialised Adoption Agency and State Agencywithin sixty days from the date the child has been declared legallyfree for adoption, such child shall be free for inter-country adoption.GThus, sixty days period has to be elapsed from the date when thechild has been declared legally free for adoption. In the presentcase, child was declared free for adoption on 14.12.2017 by ChildWelfare Committee, Patna, Bihar. Before expiry of sixty days,child could not have been offered for adoption to parents, whoare eligible for adoption under Section 59. This Court is, however,H

not oblivious to the fact that respondent Nos.1 and 2 had beenbonafide pursuing their applications for adoption, initially asresident Indians and thereafter even as overseas citizens of India.As per Section 57, both the respondent Nos.1 and 2 are fullyeligible and competent to adopt the child. It was under thecircumstances as noticed above that the child ‘S’ was offered torespondent Nos.1 and 2, who rightly communicated theiracceptance and communicated with the child and are willing totake child in adoption and to take all care and provide goodeducation to her. There is no doubt in the bonafide or thecompetence of respondent Nos.1 and 2 in their effort to take thechild in adoption, but the statutory procedure and the statutoryregime, which is prevalent as on date and is equally applicable toall aspirants, i.e., Indian prospective adoptive parents andprospective adoptive parents for inter-country adoption, cannotbe lost sight. However, by virtue of Section 59(2), the respondentNos.1 and 2 can at best may be given priority in inter-countryadoption, they being eligible overseas citizens of India and furtherdue to consequences of events and facts as noticed above.Therefore, the competent authority shall again notify the child‘S’ legally free for adoption, which notification shall be issued.That in event, within sixty days from the date the child ‘S’ isdeclared as legally free for adoption is not taken by or adoptedby Indian prospective adoptive parents, the child ‘S’ shall be givenin adoption to the respondent Nos.1 and 2 in inter-countryadoption. All consequential steps thereafter shall be completed.[Paras 15 and 16][44-G-H; 45-A-E, G, H; 46-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2017-2020 of 2019.

From the Judgment and Order dated 04.09.2018 of the HighCourt of Karnataka (Division Bench) in Writ Appeal No. 2259 of 2018(GM-RES) & Writ Appeal No. 2675 of 2018 (GM-RES), a/w C.C.C.Nos. 1690-1691 of 2018.

Aman Lekhi, ASG, Ms. Priyanka Das, Ms. Shraddha Deshmukh,Gurmeet Singh Makker, Advs. for the Appellants.

Ms. Jayna Kothari, Sr. Adv., Ms. Anindita Pujari, Ms. NityaRajshekar, Ms. Aarti Krupa Kumar, Advs. for the Respondents.

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AThe Judgment of the Court was delivered byASHOK BHUSHAN, J. 1. Leave granted.

2. The contesting respondent Nos. 1 and 2 having appeared throughcaveat, we have heard counsel for the parties and proceed to decide thematter finally.

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3. Union of India and Central Adoption and Resources Agency,Ministry of Women & Child Development is in appeal questioning theDivision Bench judgment dated 04.09.2018 in Writ Appeal No. 2259 of2018 and Writ Appeal No.2675 of 2018. Two other appeals have beenfiled by two other appellants questioning a common order dated 04.09.2018Cpassed by the High Court in C.C.C. No. 1690 of 2018 and C.C.C. No.1691 of 2018.

4. We first take the Civil Appeal filed against the Division Benchjudgment in Writ Appeal No.2259 of 2018 and Writ Appeal No.2675 of2018. The brief facts giving rise to the appeal as has been noted by theDDivision Bench of the High Court are to the following effect:-

4.1 That after completing his studies from the Indian Institute ofTechnology and India Institute of Management, Ahmedabad,in the year 2000, Mr. Ankur Gupta, the respondent No.1migrated to United State of America (USA for short). In 2004,EMs. Geetika Agarwal, the respondent No.2 went to USA forher Ph.D. During their stay in USA in June, 2006, the respondentNos. 1 and 2 got married. They stayed in USA for a decade.They returned to India in 2016. While staying in USA, therespondent No.2 became an American Citizen; the respondentNo.1 applied for American citizenship. However, till 2016, whenFthe couple returned to India, the respondent No.1 was not giventhe American Citizenship. Moreover, even after ten years ofmarriage, the couple was not blessed with any children.Therefore, upon their return to India, they eventually plannedto adopt an Indian child.

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4.2 The respondent Nos.1 and 2 submitted an Application on19.07.2016 through Central Adoption Resource Information andGuidance System (CARINGS) to adopt a child as IndianProspective Adoptive Parents. Just before submitting theapplication for adoption respondent No.2 had acquired the H

citizenship of USA on 19.05.2016 which had been declared assuch in application submitted on 19.07.2016.

4.3 According to the Guideline, 2015, a Home Study Report hasto be prepared by a Specialized Adoption Agency in order tocoordinate the efforts of a ‘Prospective adoptive parents’ toadopt a child. On 01.08.2016, Shishu Mandir Agency, aregistered Specialized Adoption Agency, filed its Home StudyReport. Thereafter, the respondents were in queue awaitingreferral of a child for adoption. On 05.12.2016, during the timethey were waiting for referral of a child for adoption, therespondent No.1 was granted the U.S. Citizenship on05.12.2016.

4.4 According to the respondents, on the basis of the advice receivedby them, they informed CARA, the appellant No.2 about thechange in citizenship status of respondent No.1. Moreover, on05.11.2017, the couple registered themselves as OverseasCitizens of India (OCI) residing in India. The said registrationwas made under the Adoption Regulations, 2017 (Regulations,2017, for short), which was notified on 4[th] January 2017 insupersession of the Guidelines Governing Adoption of Children,2015.

4.5 Since the respondents had informed the Specialised AdoptionAgency about the change in their citizenship status, theSpecialized Agency informed the appellant No.2, through e-mail dated 05.12.2017, about the change of citizenship statusof the respondents. The Specialised Adoption Agency referredto the respondents’ second registration, namely,CUSA201771205. On behalf of the respondents, theSpecialised Adoption Agency requested the appellants that therespondent’s seniority for adoption of a child should be continuedon the basis of the first registration.

4.6 By e-mail dated 06.12.2017, the appellant No.2 informed theSpecialised Adoption Agency that the request for continuingthe seniority of the couple would be considered with theapproval of the competent authority. However, the eligibility ofthe couple for adoption would be in the category of “OCI livingin India”.

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A4.7 On 01.01.2018, Baby Shomya (born on 30.09.2017) wasreferred by the respondent No.3 for adoption by the respondentNos. 1 & 2. The respondent Nos. 1 & 2 accepted the referralon 02.01.2018. The respondent Nos. 1 & 2 visited Baby Shomya,who was with the respondent No.3 at Patna. Therefore, on04.01.2018, the respondent Nos.1 & 2 wrote to the CEO ofBthe appellant No.2 requesting for continual of the reference ofBaby Shomya for adoption. The respondent Nos.1 & 2, whoapprehended that the referral of Baby Shomya for adoptionwould expire on 18.01.2018, repeatedly corresponded with theappellants as a follow-up for completing the adoption of BabyCShomya. Again, in the month of March 2018, the respondentnos. 1 & 2 visited Baby Shomya. During this visit, they wereinformed that in a High-Level Committee Meeting on27.02.2018, their request for permission to continue the firstapplication dated 19.07.2016, as Indians living in IndiaProspective Adoptive Parents, was declared as invalid, becauseDthe respondent No.1 had also been given US citizenship. Theywere further informed that they will, instead, have to wait fora 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 aforesaidEdecision, which was communicated to them over an e-maildated 15.03.2018. The Writ Court allowed the writ petitions byorder dated 19.06.2018. The writ Court quashed the aforesaiddecision communicated vide the e-mail dated 15.03.2018.Further, the High Court directed the appellants to consider andFexamine the request of the respondent Nos.1 & 2 on the basisof their first application dated 19.07.2016 expeditiously, butwithin 15 days from the date of receipt of this order.

4.9 The learned Single Judge vide its judgment and order dated19.06.2018 allowed the writ petitions by passing followingGorder:- “ORDER

(1) Writ petitions are hereby allowed.

(2) Communication dated 15.03.2018-Annexure-Z is herebyquashed.H

(3) Writ of mandamus is issued to respondents to consider andexamine the application submitted by petitioners on thestrength and basis of the application dated 19.07.2016 –Annexure-A/Annexure-R-2 expeditiously, at any rate, within15 days from the date of receipt of this order, by keeping inmind the observations made herein above. “

4.10 Union of India and Central Adoption Resources Agency,Ministry of Women & Child Development filed Writ AppealNo. 2259 of 2018 and Writ Appeal No. 2675 of 2018 againstthe 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 ofHigh Court vide its judgment dated 04.09.2018. The DivisionBench of the High Court vide its judgment dated 04.09.2018dismissed the writ appeals. The Division Bench affirmed theorder of the learned Single Judge. While dismissing the writappeals, the contempt petitions were also closed. It is usefulto extract paragraph Nos. 30 and 31 of the judgment, which isrelevant for the present case:-

“30. For the aforesaid reasons, this Court is of the consideredopinion that the Writ Court has rightly concluded that theappellants were not justified in denying the benefit of referralof the child, Baby Shomya, for adoption by the respondentNos.1 and 2, and that no grounds are made out forinterference with the exercise of extraordinary jurisdictionby the Writ Court under Article 226 of the Constitution ofIndia in the peculiar facts and circumstances that congealinto exceptional circumstances. Therefore, the Writ appealis rejected and consequentially, the pending applications arealso disposed of. The appellants are directed to implementthe directions of the Writ Court within a period of four weeksfrom the date of receipt of the certified copy of this order.

31. In view of the dismissal of the writ appeal, and the furtherdirection to the appellants to implement the directions of theWrit Court within the further period as stated above, thecontempt proceeding is closed.”

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[2019] 4 S.C.R.

A4.11 The appellants aggrieved by the said judgment have filedthese appeals.

5. Shri Aman Lekhi, learned ASG appearing for the appellantssubmits that High Court, both learned Single Judge and Division Bencherred in not correctly construing the provisions of Sections 57, 58 and 59Bof the Juvenile Justice (Care and Protection of Children) Act, 2015 aswell as the Adoption Regulations, 2017. It is submitted that the respondentNo.1 after submitting first application on 19.07.2016 for in countryadoption having acquired US citizenship on 06.12.2016 went outside thezone of in country adoption. It is submitted that the second applicationwas submitted by the respondents on 05.11.2017 for inter country adoptionCbut in that second application, the respondents have given their differentidentity and mobile numbers. It is submitted that the respondent havinggone out of zone of consideration for in country adoption, their applicationcannot be directed to be considered on the basis of seniority for in countryadoption. It is submitted that there are more than 22,000 parents waiting,Daccording to seniority, for in country adoption, respondents cannot strollmarch over them. It is submitted that offer to adopt Shomya, which wassent on 01.01.2018 was on the basis of first application of the respondentsand after the respondents informed in writing on 04.01.2018 about theirsecond registration dated 05.11.2017, the communication was sent tothe respondents that decision regarding their seniority will be taken byEthe competent authority. The communication was sent on 15.03.2018 tothe respondents that they cannot be given the benefit of their seniorityon the basis of their first application and they have to wait for receivingan offer as overseas citizen of India. It is submitted that there were nospecial circumstances on the basis of which any exception can be made Fin favour of the respondents as has been directed by the High Court.

6. Learned counsel appearing for the respondents submits thatthe Act, 2015 and the Regulations, 2017 do not provide for any mechanismwhen Indian parents, who have already got themselves registered foradoption acquires the foreign citizenship. It is submitted that as perGRegulation 41 of the Regulations, 2017, a common seniority list iscontemplated, which means that respondents shall retain their seniorityposition on the basis of first application. Thus, offer to adopt Shomya tothe respondents cannot be faulted. It is submitted that respondent Nos.1and 2 being fully competent for applying for adoption, who are still qualifiedand economically stable and eager to adopt the child cannot be denied H

their right merely because the respondent No.1 was conferred the UScitizenship on 06.12.2016, i.e., much after submission of their firstapplication as Indian parent.

7. It is submitted that even though respondent Nos.1 and 2 havebeen conferred US citizenship, both are residing in Bangalore, India andin both the applications, their residence is shown as India, hence in peculiarcircumstances, they have rightly been offered child Shomya for adoption.It is submitted that the respondent Nos. 1 and 2 bonafide has notconcealed any information and has bonafide submitted their applicationon 05.11.2017 as Overseas Citizen of India and the fact that immediatelywhen they received offer for adoption of Shomya on 02.01.2018, on04.01.2018, they sent an e-mail giving details of both the applications.The respondents have been bonafide pursuing their claim for adoption,they having not been blessed with a child even though after happy maritallife of more than ten years. It is submitted that the High Court hasrightly held that present case can be considered as an exceptional caseand without making it a precedent, the adoption in favour of therespondents be allowed to maintain.

8. We have considered the submissions of the learned counsel forthe parties and have perused the records.

9. The 2015 Act, Chapter VIII deals with adoption. Section 56sub-section (1) provides that adoption shall be resorted to for ensuringright to family for the orphan, abandoned and surrendered children, asper the provisions of the Act, the rules made thereunder and the adoptionregulations framed by the authority. Section 57 deals with eligibility ofprospective adoptive parents, which is as follows:-

57. Eligibility of prospective adoptive parents.—(1) Theprospective adoptive parents shall be physically fit, financiallysound, mentally alert and highly motivated to adopt a child forproviding a good upbringing to him.

(2) In case of a couple, the consent of both the spouses for theadoption shall be required.

(3) A single or divorced person can also adopt, subject to fulfilmentof the criteria and in accordance with the provisions of adoptionregulations framed by the Authority.

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A(4) A single male is not eligible to adopt a girl child.

(5) Any other criteria that may be specified in the adoptionregulations framed by the Authority

10. Section 58 deals with procedure for adoption by Indianprospective adoptive parents living in India, which is to the followingBeffect:-

58. Procedure for adoption by Indian prospective adoptiveparents living in India.—(1) Indian prospective adoptive parentsliving in India, irrespective of their religion, if interested to adoptan orphan or abandoned or surrendered child, may apply for thesame to a Specialised Adoption Agency, in the manner as providedin the adoption regulations framed by the Authority.

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(2) The Specialised Adoption Agency shall prepare the home studyreport of the prospective adoptive parents and upon finding themeligible, will refer a child declared legally free for adoption to themalong with the child study report and medical report of the child, inthe manner as provided in the adoption regulations framed by theAuthority.

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(3) On the receipt of the acceptance of the child from theprospective adoptive parents along with the child study report andmedical report of the child signed by such parents, the SpecialisedAdoption Agency shall give the child in pre-adoption foster careand file an application in the court for obtaining the adoption order,in the manner as provided in the adoption regulations framed bythe Authority.

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(4) On the receipt of a certified copy of the court order, theSpecialised Adoption Agency shall send immediately the same tothe prospective adoptive parents.

(5) The progress and well-being of the child in the adoptive familyshall be followed up and ascertained in the manner as provided inthe adoption regulations framed by the Authority.

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11. The next provision, which needs to be noticed is Section 59,which provides for procedure for inter-country adoption of an orphan orabandoned or surrendered child, which is as follows:- H

59. Procedure for inter-country adoption of an orphan orabandoned or surrendered child.—(1) If an orphan orabandoned or surrendered child could not be placed with an Indianor non-resident Indian prospective adoptive parent despite the jointeffort of the Specialised Adoption Agency and State Agency withinsixty days from the date the child has been declared legally freefor adoption, such child shall be free for inter-country adoption:

Provided that children with physical and mental disability, siblingsand children above five years of age may be given preferenceover other children for such inter-country adoption, in accordancewith the adoption regulations, as may be framed by the Authority.

(2) An eligible non-resident Indian or overseas citizen of India orpersons of Indian origin shall be given priority in inter-countryadoption of Indian children.

(3) A non-resident Indian or overseas citizen of India, or personof Indian origin or a foreigner, who are prospective adoptiveparents living abroad, irrespective of their religion, if interested toadopt an orphan or abandoned or surrendered child from India,may apply for the same to an authorised foreign adoption agency,or Central Authority or a concerned Government department intheir country of habitual residence, as the case may be, in themanner as provided in the adoption regulations framed by theAuthority.

(4) The authorised foreign adoption agency, or Central Authority,or a concerned Government department, as the case may be,shall prepare the home study report of such prospective adoptiveparents and upon finding them eligible, will sponsor their applicationto Authority for adoption of a child from India, in the manner asprovided in the adoption regulations framed by the Authority.

(5) On the receipt of the application of such prospective adoptiveparents, the Authority shall examine and if it finds the applicantssuitable, then, it will refer the application to one of the SpecialisedAdoption Agencies, where children legally free for adoption areavailable.

(6) The Specialised Adoption Agency will match a child with suchprospective adoptive parents and send the child study report and A

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medical report of the child to such parents, who in turn may acceptthe child and return the child study and medical report duly signedby them to the said agency.

(7) On receipt of the acceptance of the child from the prospectiveadoptive parents, the Specialised Adoption Agency shall file anBapplication in the court for obtaining the adoption order, in themanner as provided in the adoption regulations framed by theAuthority.

(8) On the receipt of a certified copy of the court order, thespecialised adoption agency shall send immediately the same toAuthority, State Agency and to the prospective adoptive parents,and obtain a passport for the child.

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(9) The Authority shall intimate about the adoption to theimmigration authorities of India and the receiving country of thechild.

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(10) The prospective adoptive parents shall receive the child inperson from the specialised adoption agency as soon as thepassport and visa are issued to the child.

(11) The authorised foreign adoption agency, or Central Authority,or the concerned Government department, as the case may be,shall ensure the submission of progress reports about the child inthe adoptive family and will be responsible for making alternativearrangement in the case of any disruption, in consultation withAuthority and concerned Indian diplomatic mission, in the manneras provided in the adoption regulations framed by the Authority.

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(12) A foreigner or a person of Indian origin or an overseas citizenof India, who has habitual residence in India, if interested to adopta child from India, may apply to Authority for the same along witha no objection certificate from the diplomatic mission of his countryin India, for further necessary actions as provided in the adoptionregulations framed by the Authority G

12. The respondent Nos.1 and 2 submitted their application asprospective adoptive parents living in India. Although, on the date ofsubmission of application, respondent No.2 was already a US citizen,the respondent No.1 being Indian citizen, the application was fullymaintainable as per the provisions of Regulations and as per the guidelines H

applicable at the relevant time as Indian prospective adoptive parents.Even Regulation 21(1) of Regulations, 2017 provides that if one of theprospective adoptive parents is foreigner and other is an Indian, suchcase shall be treated at par with Indians living in India. After the respondentNo.1 acquired the US citizenship on 06.12.2016 and OCI card was issuedto respondent No.1 on 27.04.2017, second application was submitted on05.11.2017 by the respondents for inter-country adoption both havingbecome US citizens. In view of the fact that both had become UScitizens by 06.12.2016, they were not eligible for adoption as Indianprospective adoptive parents living in India. Mere fact that Act orRegulations does not provide for any mechanism to upload any furtherinformation in first registration cannot alter the legal position andconsequences of acquiring the foreign citizenship by an Indian. Theconsequences of obtaining US citizenship of respondent Nos.1 and 2shall take its effect immediately.

13. The submission of learned counsel for the respondents thatRegulation 41 deals with common seniority list also need to be noted.Regulation 41 of the Regulations, 2017 is as follows:-

41. Seniority of the prospective adoptive parents.- (1) Theprospective adoptive parents shall be referred children on the basisof a single seniority list, which shall be maintained from the dateof registration and other criteria as stipulated under theseregulations.

(2) The seniority of resident Indians shall be based on the date ofonline registration and submission of the documents, except forHome Study Report, in Child Adoption Resource Information andGuidance System.

(3) The seniority of Non Resident Indian or Overseas Citizen ofIndia or foreign prospective adoptive parents shall be based onthe date of online registration and submission of the requisitedocuments alongwith Home Study Report in Child AdoptionResource Information and Guidance System.

(4) Prospective adoptive parents shall be allowed to change theState preference once within sixty days from the date of registrationand in case they change the State preference after sixty daysfrom the date of registration, they shall be placed at the bottom ofthe seniority list in the changed State.

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A(5) Seniority of prospective adoptive parents registered as single,but married later shall be counted from the date of registration assingle after receipt of fresh Home Study Report.

(6) Prospective adoptive parents registered for normal child, shallbe able to adopt a special need child or hard to place child withBthe same registration.

14. It is also submitted that prior to Regulations, 2017, there weretwo separate seniority lists, which were maintained under the Guidelines,2015, which has been now made a single seniority list. Even if there isa single seniority list, now contemplated by Regulation 41, a placementCin the seniority list with regard to resident Indian and non-resident Indianor overseas citizen of India are based on different yardsticks as providedin Regulations 41(2) and 41(3). Even if the common seniority list has tobe utilised for the purpose of in country adoption and inter-countryadoption as per the respective categories, the difference between incountry adoption and inter-country adoption cannot be lost sight or givenDa go bye by the mere fact that a common seniority list is maintained. Itis true that Regulation 41 or any other Regulation does not contemplatea situation when a resident Indian after acquiring the foreign citizenshipsubmits a fresh registration, what is the consequence and value of itsfirst registration. Even though regulations are silent and do not provideEfor any mechanism or any answer to such fact situation, the naturalconsequences of acquiring foreign citizenship shall follow. We, thus,find force in the submission of the learned ASG that the right of respondentNos. 1 and 2 for adoption as resident Indian is lost after respondentNo.1 having acquired the US citizenship on 06.12.2016. Offer of thechild to the respondent Nos. 1 and 2 was based on their first applicationFdated 19.07.2016, in which if the clause of foreign citizenship is ignored,was in accordance with the Act and the Rules. Further, whether thefactum of respondent No.1 acquiring US citizenship on 06.12.2016 shouldbe ignored for the purposes of adoption or not is the question, which isrequired to be addressed and answered in these appeals.G

15. Section 58 and 59 provides for two different mechanisms foradoption. As per Section 59(1), if an orphan or abandoned or surrenderedchild could not be placed with an Indian or non-resident Indian prospectiveadoptive parents despite the joint effort of the Specialised Adoption Agencyand State Agency within sixty days from the date the child has beenHdeclared legally free for adoption, such child shall be free for inter-country

adoption. Thus, sixty days period has to be elapsed from the date whenthe child has been declared legally free for adoption. In the presentcase, child was declared free for adoption on 14.12.2017 by Child WelfareCommittee, Patna, Bihar. Before expiry of sixty days, child could nothave been offered for adoption to parents, who are eligible for adoptionunder Section 59. We are, however, not oblivious to the fact thatrespondent Nos.1 and 2 had been bonafide pursuing their applicationsfor adoption, initially as resident Indians and thereafter even as overseascitizens of India. As per Section 57, both the respondent Nos.1 and 2are fully eligible and competent to adopt the child. It was under thecircumstances as noticed above that the child Shomya was offered torespondent Nos.1 and 2, who rightly communicated their acceptanceand communicated with the child and are willing to take child in adoptionand to take all care and provide good education to her. We have nodoubt in the bonafide or the competence of respondent Nos.1 and 2 intheir effort to take the child in adoption, but the statutory procedure andthe statutory regime, which is prevalent as on date and is equally applicableto all aspirants, i.e., Indian prospective adoptive parents and prospectiveadoptive 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 maybe given priority in inter-country adoption, they being eligible overseascitizens of India and further due to consequences of events and facts asnoticed above.

16. In view of the foregoing discussions, we are of the view thatends of justice be served in disposing the Civil Appeals arising out ofSLP (C) Nos. 1476-1477 of 2019 in following manner:

(i) The decision dated 27.02.2018 as communicated to therespondent Nos. 1 and 2 by e-mail dated 15.03.2018 is upheld.

(ii) Judgments of learned Single Judge as well as of Division Benchin so far as it directs to consider and examine the applicationof respondent Nos. 1 and 2 on the basis of first registrationdated 19.07.2016 are set aside.

(iii) The competent authority shall again notify the child Shomyalegally free for adoption, which notification shall be issued withinone 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 A

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46SUPREME COURT REPORTS

Aby or adopted by Indian prospective adoptive parents, the childShomya shall be given in adoption to the respondent Nos.1 and2 in inter-country adoption. All consequential steps thereaftershall be completed.

17. Now, coming to Civil Appeals arising out of SLP (C) Nos.B1478-1479, these appeals have been filed against the order dated04.09.2018 passed in C.C.C. Nos. 1690-1691 of 2018, the contemptproceedings having been closed by the Division Bench by its impugnedjudgment dated 04.09.2018, nothing more is required to be said in thatregard. We, however, observe that filing of the contempt applications inthe fact situation of the present case was ill-advised. Both the contemptCapplications deserve to be rejected. The appeals are allowed andcontempt applications stand rejected. Parties shall bear their own costs.

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Ankit Gyan

Matters disposed of.

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