In W.P.(C) 14069/2022-DEL HC- No prospective adoptive parent can claim right in law to be entitled to adopt child of his or her choosing or desire, rules Delhi HC
Justice Yashwant Varma [25-11-2022]
New Delhi, November 28, 2022: Noting that the act of adoption is not available to be exercised with respect to a child specific, the Delhi High Court has made it clear that whenever a question of adoption does arise, the need or the desire of a Prospective Adoptive Parent would always be subservient to the interest of the child.
A Single-Judge bench of Justice Yashwant Varma allowed the present writ petition instituted to assail the communication issued by the Central Adoption Resource Authority (CARA) informing the Specialized Adoption Agency (SAA) concerned and where Child “S” presently stands housed, of a complaint which had been received by the National Commission for Protection of Child Rights (NCPCR) alleging violation of the adoption regulations which apply. CARA in terms of that communication apprised the SAA that till the aforesaid complaint is investigated, it should withdraw the Adoption Petition which had been presented before the competent court.
Factual background of the case was such that "Child “S” was found abandoned in a cremation ground.On a preliminary medical examination, the child was found to have been born prematurely and therefore was referred for further examination. The attending doctor on November 5, 2019 apprised the CWC that considering that the child was suffering from meningitis, she would require further medical treatment. Consequently, Child “S” remained hospitalized and underwent treatment.
The child was ultimately declared legally free for adoption by the CWC and the petitioners, the Prospective Adoptive Parents (PAPs) made a reservation in favour of Child “S” thereafter.
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. The inspecting team of CARA has 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. It is disclosed that it was only after the period of 15 days from 05 November 2021 had expired that the petitioners acting as the PAPs’ had reserved Child “S”.
After considering the submissions from both the sides, the Court took into account section 38 of the Care and Protection of Children Act, 2015 which sets out the procedure which is to be followed for adoption of the orphaned or abandoned children. Further Section 58 and 59 of the Act and Regulations 2017 were also considered.
Coming onto the case, the Court noted that “Child “S” was not only orphaned, but one who was found to be of “special needs”. It thus becomes the bounden duty of the Court 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, the Court further stated.
“The act of adoption is not available to be exercised with respect to a specific child. This for each child is a gift of God and thus entitled to an equal right to be embraced by a family and be fostered and nurtured. Neither colour, caste, creed nor nationality should on a fundamental plane have any role to play at all”, the Court further remarked.
The Bench noted that it couldnot possibly be said that the priority principles adopted in the 2017 and 2022 Regulations were violated. CARA had categorically averred that the adoption procedure was completed by adhering to a fair and transparent process and in accordance with the procedure prescribed under the regulations. Undisputedly no reservation came to be made by a resident Indian, NRI or OCI card holder within the stipulated period prescribed under the regulations, the Court added.
The Bench further said, “The registration of a PAP on the system is solely aimed at enabling a reservation being made in respect of a child who may at any given point of time become available for adoption on the CARINGS portal. However, no PAP can claim a right in law to be entitled to adopt a child of his or her choosing or desire.”
The Bench opined that Child “S” was made available for inter-country adoption only when no reservation from a resident Indian, NRI or OCI card holder was forthcoming.
“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 Bench held.
The Court in any case was of the firm opinion that the validity of an adoption can neither be doubted nor questioned merely on an asserted “possibility of irregularity. In view of such observations stated above, the petition was allowed.
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