Delhi High Court Paves Way For Inter Country Adoption By Foreign Couple, Orders Expeditious Completion Of Legal Formalities

Paving way for an inter country adoption by a foreign couple, the Delhi High Court on Friday directed the authorities to expeditiously conclude all legal formalities relating to adoption of a minor child with special needs, who was found abandoned in October 2019 in a cremation ground.

Justice Yashwant Varma observed that the child must be placed in the warmth of a loving family and a home enabling her to find her place in the world in the years to come.

"It is important to bear in mind that the bonds of family are not forged merely by blood but bonded by the love and care that we extend to those around us. The Court shudders at even imagining the first waking hours of Child "S" as she entered this world. Her fate thus cannot be left to the vagaries of litigation or to competing forces which seek to stake a claim upon her very existence and life, her body and soul. The Court notes that the process of adoption has stretched over three years already," the court said.

The court allowed a plea filed by the foreign couple who had been earlier granted a no objection certificate (NOC) by CARA for adoption of the child, who was in an orphanage situated in Uttar Pradesh's Bareilly for a period of over two years before she was matched for adoption.

However, before the adoption could be finalised, a letter was issued by the orphanage - the adoption agency, to the couple on August 10 informing them that an instruction had come from CARA to withdraw the pending adoption petition, in respect of the child's adoption, before the district court.

The proposed adoption was stated to be under investigation after a complaint was made to the National Commission for Protection of Child Rights (NCPCR) alleging that the adoption was illegal as it violated the priority principle, which grants preference to Indian parents over foreign parents.

Setting aside the said communication, Justice Varma directed CARA to take further steps to complete the process of adoption in accordance with the NOC which was issued by the agency.

The bench observed that undisputedly no reservation came to be made by a resident Indian, NRI or OCI card holder within the stipulated period prescribed under the regulations, adding it was only thereafter that Child "S" was made available for inter-country adoption.

The court further said while the regulations accord primacy to resident Indians, NRIs and OCI card holders, they cannot be interpreted to require CARA to continually defer the process of adoption till such time.

"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 court said.

Observing that the act of adoption is not one of redemption or grace, Justice Varma said that an evolved human being "cannot perhaps perform a more pious duty than to embrace an infant who is left abandoned in this world."

"There perhaps can be no greater imaginable tragedy in the world than of a child who is orphaned or abandoned. An orphaned or abandoned child impacts the very foundation of civilised society and shakes the core of our conscience. This for every child, nay every living being, must be loved, provided care and comfort, a home and a family, the opportunity to breathe and exist," the court said.

Noting that the child was not only orphaned but was found to be of "special needs", the bench said it is the court's bounden duty to not only "empower her to erase and overcome the trauma that she underwent" but to also enable her to "find the warmth of a home and enable her to stand on her feet as expeditiously as possible."

However, the court added that while legal systems may adopt and incorporate principles of preference and priority amongst prospective parents, none of them countenance, recognize or foster a right to choose a child.

"... No PAP (Prospective Adoptive Parents) can claim a right in law to be entitled to adopt a child of his or her choosing or desire," the court said.

It added: "While a PAP may be recognised to have the right to exercise a choice based on gender or to adopt one based on his/her special needs, no legal system prevalent in civilised nations entitles one to specifically select or choose a particular child."

The court took note of the objection taken by the NCPCR in its counter affidavit stating a number of adoptions were being finalized in favour of parents residing in Malta. The commission also alluded to a possibility of irregularity being involved in the adoption process of the minor.

However, the court said it is unable to appreciate the insinuation which is sought to be raised especially when no breach of a fundamental procedure pertaining to the extant adoption could be either pointed out or established. 

"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 said.

At the outset of the judgment, Justice Varma quoted a paragraph from Thomas Hardy's Jude the Obscure:

"The beggarly question of parentage--what is it, after all? What does it matter, when you come to think of it, whether a child is yours by blood or not? All the little ones of our time are collectively the children of us adults of the time, and entitled to our general care…."

Senior Advocate Menaka Guruswamy along with Advocates Tara Narula, Maanac Kumar, Sonal Chopra, S. Debabrata Reddy, Yash S. Vijay and Utkarsh Pratap appeared for the petitioners.

Title: Michelle Camilleri & Anr. v. Central Adoption Resource Authority & Ors.

Citation: 2022 LiveLaw (Del) 1114

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