Justice Revati Mohite Dere, Justice Neela Gokhale, Bombay High Court
Foreign Child Can’t Be Adopted By Relative Unless He Is In Need Of Care & Protection Or Is In Conflict With Law: Bombay High Court
|The Bombay High Court said that there is no fundamental right of the relatives to adopt an American child, who does not fall within the applicability of the JJ Act and the Regulations thereunder, even if he is born to Indian parents.
The Bombay High Court held that a foreign child cannot be adopted by a relative unless the “child is in need of care and protection” or a “child is in conflict with law”.
The Court held thus in a Writ Petition in which the issue arose regarding the applicability of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) and the Adoption Regulations, 2022 (AR), to the adoption of a child being a citizen of the United States of America (USA) by the relatives of the child’s biological parents.
A Division Bench comprising Justice Revati Mohite Dere and Justice Neela Gokhale observed, “In view of the aforesaid discussion, it is clear that there is no provision in the JJ Act nor the Adoption Regulations providing for adoption of a child of foreign citizenship even between relative unless the ‘child is in need of care and protection’ or a ‘child is in conflict with law.”
The Bench said that there is no fundamental right of the Petitioners-relatives to adopt an American child, who does not fall within the applicability of the JJ Act and the Regulations thereunder, even if he is born to Indian parents.
Advocate Shirin Merchant appeared for the Petitioners while GP Neha Bhide, Advocates Y.S. Bhate, and Yugandhara Khanwilkar appeared for the Respondents.
Factual Background
A child was born to the Respondents (parents) in 2019 and the Petitioners (relatives) were married in 2011. They were Indian citizens, domiciled in India. The Respondents although Indian citizens, were residing in California, USA. As per the Petitioners, they were unable to bear children and hence, desirous of adopting the said child from the Respondents. The said child was a US citizen and the Petitioners with an intention to adopt him, brought him to India. They contacted Central Adoption Resource Agency (CARA) to complete all the requisite legal formalities to adopt the child. It was their grievance that the Adoption Regulations do not contemplate facilitating adoption of an American citizen.
The Petitioners professing Muslim region did not have a codified enactment regulating adoption and hence, they approached the District Court by filing a Civil Miscellaneous Application under Section 56(2) of JJ Act, under the category of ‘relative’ adoption. The said Application was pending on account of CARA refusing to approve the adoption and submit the requisite approval letter. The Petitioners complained that USA authorities are likely to refuse renewal of the child’s passport without a valid adoption order and his stay in India may become illegal. Therefore, they approached the High Court, seeking reliefs.
Reasoning
The High Court in view of the facts and circumstances of the case, noted, “Firstly, the child in question in neither a ‘child in need of care and protection’ nor a ‘child in conflict with law’. Hence the JJ Act itself does not apply to the adoption of Moiz. Moreover, the expression ‘in-country’ adoption is defined in the Adoption Regulations. These Regulations are notified by CARA in exercise of powers conferred upon it under Section 68(c) read with Section 2(3) of the JJ Act. These regulations are delegated legislation.”
The Court added that the Adoption Regulations cannot travel beyond the scope of the parent Act, i.e., the JJ Act.
“It is presumed that the Regulations are aligned with its parent Act, lest the said regulations become invalid. At this stage, it is apposite to state about the Rule/Regulation making power of a delegating authority. If a Rule/Regulation goes beyond the regulation making power conferred by the statute, the same has to be declared ‘invalid’; if the Rule/Regulation supplants any provisions for which the power has been conferred, it becomes ‘invalid”, it said.
Moreover, the Court observed that a Rule/Regulations must be in accordance with the parent statute, as it cannot travel beyond it and it is not anybody’s case that Regulation 2(15) relating to ‘in-country’ adoption is invalid.
“Thus, even if the present adoption is treated as an in-country adoption, the same has to follow the provisions of the parent Act and its applicability. Thus in-country adoption must also be construed to be that of a ‘child in need of care and protection’ or a ‘child in conflict with law’. As mentioned above, Moiz is neither”, it further remarked.
The Court rejected the plea of the Petitioners and Respondents that in the absence of any provision in the JJ Act or the Regulations, the Court under its extra ordinary jurisdiction is vested with the power to allow such an adoption and issue directions to CARA.
“Neither is there any violation of any fundamental right of the child of American Nationality to be adopted by an Indian citizen. The predicament of the Petitioner can be easily resolved in a manner suggested by CARA, i.e., for the child to apply for Indian citizenship under the Citizenship Act, 1955 and then follow the procedure under the JJ Act or to process the adoption in US under the applicable laws of that country”, it concluded.
Accordingly, the High Court dismissed the Petition.
Cause Title- ABC & Anr. v. The Central Adoption Resource Agency & Ors. (Neutral Citation: 2025:BHC-AS:29271-DB)
Appearance:
Petitioners: Advocates Shirin Merchant and Stuti Oswal.
Respondents: GP Neha Bhide, AGP P.J. Gavhane, Advocates Y.S. Bhate, Yugandhara Khanwilkar, and Viraj Y. Bhate.