Karnataka High Court
Union Of India vs Mr Ankur Gupta on 4 September, 2018
Bench: Raghvendra S.Chauhan, B M Shyam Prasad
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER 2018
PRESENT
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
WRIT APPEAL NO. 2259 OF 2018(GM-RES)
AND
WRIT APPEAL NO. 2675 OF 2018(GM-RES)
A/W.
C.C.C. NOS. 1690-1691 OF 2018
IN W.A.NOs.2259/2018 & 2675/2018:
BETWEEN:
1. UNION OF INDIA
MINISTRY OF WOMEN AND CHILD
DEVELOPMENT, SHASTRI BHAVAN
NEW DELHI-110 001
REP BY ITS UNDER SECRETARY.
2. THE CENTRAL ADOPTION AND RESOURCES AGENCY
MINISTRY OF WOMEN AND CHILD DEVELOPMENT
1ST FLOOR, R.K. PURAM, NEW DELHI-110 066
NOW REP BY ITS JOINT DIRECTOR
APPELLANT NO.2 IS
REPRESENTING APPELLANT NO.1.
... APPELLANTS
(BY SRI. NATARAJ. R, CGC)
2
AND:
1. MR. ANKUR GUPTA
S/O SRI. KRISHNA KANT
AGED ABOUT 42 YEARS
RESIDING AT VILLA 555
ADARSH PALM RETREAT
PHASE-3, DEVARABISANHALLI
OUTER RING ROAD, BENGALURU-560 103.
2. DR. GEETIKA AGARWAL
W/O MR. ANKUR GUPTA
AGED ABOUT 37 YEARS
RESIDING AT VILLA 555
ADARSH PALM RETREAT
PHASE-3, DEVARABISANHALLI
OUTER RING ROAD, BENGALURU-560 103.
3. PRAYAS BHARTI TRUST
HEMPLAZA BUILDING
FRAZER ROAD
DAKBANGLA CHAWRAH
OPP. JAGAT TRADE CENTRE
PATNA, BIHAR-800 001
REP. BY ITS SECRETARY.
... RESPONDENTS
(BY SMT. JAYNA KOTHARI, ADV. FOR C/R-1 & R-2)
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 19.06.2018 IN W.P. 12427-428 OF 2018
PASSED BY THE LEARNED SINGLE JUDGE AND THE W.A. PAPERS
WERE NOTIFIED ON 20.07.2018 FOR RECTIFICATION OF OFFICE
OBJECTIONS AND ETC.
IN C.C.C. NOS. 1690-1691 OF 2018:
BETWEEN:
1. MR. ANKUR GUPTA
S/O. SRI. KRISHNA KANT
AGED 42 YEARS
RESIDING AT: VILLA 555
ADARSH PALM RETREAT PHASE-3
DEVARABISANHALLI,
OUTER RING ROAD,
BENGALURU - 560 103.
3
2. DR. GEETIKA AGARWAL
W/O MR. ANKUR GUPTA
AGED 37 YEARS
RESIDING AT: VILLA 555
ADARSH PALM RETREAT PHASE-3,
DEVARABISANHALLI,
OUTER RING ROAD,
BENGALURU - 560 103.
... COMPLAINANTS
(BY SMT. JAYNA KOTHARI, ADV.)
AND:
1. CAPT. DEEPAK KUMAR, C.E.O.
THE CENTRAL ADOPTION AND
RESOURCES AGENCY
MINISTRY OF WOMEN AND
CHILD DEVELOPMENT
1ST FLOOR, R.K. PURAM
NEW DELHI-110 066.
2. SRI. RAKESH SHRIVASTAV
UNDER SECRETARY
MINISTRY OF WOMEN AND
CHILD DEVELOPMENT
SHASTRI BHAVAN
NEW DELHI.
... ACCUSED
(BY SRI. R. NATARAJ, CGC, FOR A-1 & A-2)
THESE CCCs ARE FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, 1971, AND THE CONTEMPT
PROCEEDINGS RULES, 1987 READ WITH ARTICLE 215 OF THE
CONSTITUTION OF INDIA, BY THE COMPLAINANTS, WHEREIN THEY
PRAY THAT THE HON'BLE HIGH COURT BE PLEASED TO INITIATE
APPROPRIATE CONTEMPT PROCEEDINGS AGAINST THE ACCUSED
FOR DELIBERATE DISOBEDIENCE OF THE ORDERS PASSED BY THIS
HON'BLE COURT DATED 19.06.2018 IN W.P.NO.12427-12428 OF 2018.
THESE APPEALS AND CCCs COMING ON FOR ORDERS THIS
DAY, B.M. SHYAM PRASAD J., DELIVERED THE FOLLOWING:
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JUDGMENT
The Writ Appeal is filed by the Union of India, represented by the Ministry of Women and Child Development, appellant No.1, and by the Central Adoption and Resources Agency ('CARA', for short), the appellant No.2. The writ appeal is listed, in the category of 'Orders', on interim application, namely, I.A.No.2/2018, filed by the appellants. Simultaneously, the contempt petition, namely CCC No. 1690- 1691/2018 filed by the second and third respondents is also listed today. But, with the consent of the learned counsel for the parties, both the writ appeals, and the contempt petitions are taken up for final disposal.
2. The brief facts of the case are that after completing his studies from the Indian Institute of Technology and India Institute of Management, Ahmedabad, in the year 2000, Mr. Ankur Gupta, the 5 respondent No.1, migrated to United States of America ('USA' for short). In 2004, Ms. Geetika Agarwal, the respondent No.2 went to USA for her Ph.D. During their stay in USA in June, 2006, the respondent Nos.1 and 2 got married. They stayed in USA for a decade. They returned to India in 2016. While staying in USA, the respondent No.2 became an American Citizen; the respondent No.1 applied for American citizenship. However, till 2016, when the couple returned to India, the respondent No.1 was not given the American Citizenship. Moreover, even after ten years of marriage, the couple was not blessed with any children. Therefore, upon their return to India, they eventually planned to adopt an Indian child.
3. According to the Guidelines governing Adoption of Children, 2015 (' the Guidelines, 2015', for short), a couple, one of whom is an Indian Citizen, could register for the purpose of adopting a child as 'Indians in India', 6 despite the fact that the other partner is a non-Indian Citizen. Since the respondent No.1 continued to be an Indian Citizen, while the respondent No.2 was U.S. citizen, the couple (the respondent No. 1 and 2) registered themselves for adoption on 19.7.2016 as 'Indians living in India' in accordance with Guideline No.15 of the Guidelines, 2015.
4. According to the Guidelines, 2015, a Home Study Report has to be prepared by a Specialized Adoption Agency in order to co-ordinate the efforts of a 'prospective adoptive parents' to adopt a child. On 01.08.2016, Shishu Mandir Agency, a registered Specialized Adoption Agency, filed its Home Study Report. Thereafter, the respondents were in queue awaiting referral of a child for adoption on 05.12.2016. However, during the time they were waiting for referral of a child for adoption, the respondent No.1 was granted the U.S. Citizenship on 05.12.2016. This turn 7 of event spiraled into the present proceedings.
5. According to the respondents, on the basis of the advice received by them, they informed CARA, the appellant No.2, about the change in citizenship status of respondent No.1. Moreover, on 05.11.2017, the couple registered themselves as Overseas Citizens of India (OCI) residing in India. The said registration was made under the Adoption Regulations, 2017 ("Regulations, 2017", for short), which was notified on 4th January 2017 in supersession of the Guidelines Governing Adoption of Children, 2015.
6. Since the respondents had informed the Specialised Adoption Agency about the change in their citizenship status, the Specialised Agency informed the appellant No.2, through e-mail dated 5.12.2017, about the change of citizenship status of the respondents. The Specialised Adoption Agency referred to the 8 respondents' second registration, namely, CUSA201771205. On behalf of the respondents, the Specialized Adoption Agency requested the appellants that the respondents' seniority for adoption of a child should be continued on the basis of the first registration. Therefore, the Specialised Adoption Agency requested the appellant No.2 that the seniority of the respondents should be continued on the basis of their first registration.
7. By e-mail dated 6.12.2017, the appellant No.2 informed the Specialised Adoption Agency that the request for continuing the seniority of the couple would be considered with the approval of the competent authority. However, the eligibility of the couple for adoption would be in the category of 'OCI living in India'.
8. On 1.1.2018, Baby Shomya (born on 30.9.2017) was referred by the respondent No.3 for 9 adoption by the respondent Nos. 1 & 2. The respondent Nos. 1 & 2 accepted the referral on 2.1.2018. The respondent No. 1 & 2 visited Baby Shomya, who was with the respondent No.3 at Patna. Thereafter, on 4.1.2018, the respondent No. 1 & 2 wrote to the CEO of the appellant No.2 requesting for continual of the reference of Baby Shomya for adoption. The respondent No.1 & 2, who apprehended that the referral of Baby Shomya for adoption would expire on 18.1.2018, repeatedly corresponded with the appellants as a follow- up for completing the adoption of Baby Shomya. Again in the month of March 2018, the respondent Nos.1 & 2 visited Baby Shomya. During this visit, they were informed that in a High Level Committee Meeting, on 27.2.2018, their request for permission to continue the first application dated 19.7.2016, as Indians living in India Prospective Adoptive Parents, was declared as invalid, because the respondent No.1 had also been given US citizenship. They were further informed that 10 they will, instead, have to wait for a referral of another child as 'Overseas Citizen of India'.
9. Therefore, the respondent Nos. 1 and 2 filed a writ petition, namely WP Nos. 12427-428 of 2018, impugning the aforesaid decision, which was communicated to them over an e-mail dated 15.3.2018 (Annexure - Z). The Writ Court allowed the writ petition by the impugned order dated 19.6.2018. The Writ Court quashed the aforesaid decision communicated vide the e-mail dated 15.3.2018. Further, the High Court directed the appellants to consider and examine the request of the respondents Nos.1 & 2 on the basis of their first application dated 19.7.2016 expeditiously, but within 15 days from the date of receipt of this order.
10. The Writ Court examined the rival assertions in the light of the decision of the Hon' ble Supreme Court in the case of Stephanie Joan Baker vs. State 1 and 1 Reported in a AIR 2013 SC 3495 11 the Regulations, 2017. The Writ Court concluded that the respondent Nos.1 and 2 had not suppressed any material fact when they filed the second application dated 05.11.2017 for adoption as 'Overseas citizens of India living in India prospective adoptive parents'. Moreover, no fault could be found in the manner in which they had filed the first and the second applications. Further, the Writ Court concluded that the appellants extended hope to the respondents No.1 and 2 of becoming proud parents, when Baby Shomya was referred for adoption. Furthermore, the Writ Court concluded that the respondent No. 1 and 2 were in a peculiar situation and therefore, they would be entitled to pursue the first application filed by them on 19.7.2016 as 'Indians living in India'.
11. Mr. R Nataraj, the learned counsel for the appellants, urged that the respondents No. 1 and 2 had not furnished their passport number in their first 12 application dated 19.7.2016, and had furnished different telephone number when they filed their second application as 'Overseas Citizens of India living in India'. The application for adopting a child is submitted and the referral for adoption are through online 'Child Adoption Resource Information and Guidance System'. The appellants have adopted the online process to eliminate room for any mischief. The online referral is made through this system for adoption to the prospective adoptive parents based on their seniority. The seniority amongst the prospective adoptive parents is determined as per the stipulations in that regard in Regulations, 2017. The referral of Baby Shomya for adoption by the respondent Nos. 1 and 2 was based on their first application dated 19.7.2016, for Indians living in India adoption, which is a separate category. If the respondents had entered the passports numbers in the first application dated 19.7.2016, and the same telephone number when they filed the second 13 application on 05.11.2017 as Overseas Citizens living in India - another distinct category - the online Child Adoption Resource Information and Guidance System would have automatically invalidated their first application dated 19.7.2016 and no referral would be made. As such, the respondent Nos. 1 and 2 cannot claim any equity to adopt first Baby Shomya pursuant to their application dated 19.7.2016.
12. Furthermore, the learned standing counsel contended that the respondents 1 and 2 are not entitled to continue with their first application dated 19.07.2016 for adoption as 'Indian living in India' after the respondent No. 1 was given the US citizenship; the respondents No. 1 and 2 could only adopt as 'Overseas Citizens of India living in India.' The learned counsel propped up this contention on two-fold submissions:
firstly, placing reliance upon the provisions of Section 59 of the Juvenile Justice (Care and Protection of 14 Children) Act, 2015 (for short, the 'Juvenile Justice Act'), the learned counsel contended that as per the provisions of this section, a child declared legally free for adoption, must be offered first for adoption by Indians/ Non-resident Indians, and only if the child is not taken in adoption by Indians/ Non-resident Indians within 60 days, then the child would be offered for adoption for 'Inter-Country adoption'. After the change in citizenship of the respondent No.1, the couple are 'Overseas Citizens of India living in India' and cannot be considered on par with 'Indians living in India or Non-
resident Indians'. Baby Shomya is referred for adoption by the respondents 1 and 2 without first being referred for adoption by Indians/Non-Resident Indians. As such if the respondents 1 and 2 are permitted to adopt Baby Shomya, the provisions of Section 59 of the Juvenile Justice Act will be contravened.
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13. Secondly, the referral for adoption is entirely based on the seniority determined in terms of the stipulations in that regard in Regulations, 2017. In terms of such stipulations, the seniority for Resident Indian Prospective Adoptive Parents is determined separately as a distinct category, and the seniority for other categories of Prospective Adoptive Parents is determined separately as distinct categories. The referral of Baby Shomya is based on the seniority of the first application dated 19.7.2016 by the respondent Nos.1 and 2, treating them on par with 'Indians living in India' because the respondent No.1 was an Indian citizen. But, with the first application dated 19.7.2016 being rendered invalid after the respondents No. 1 and 2 submitted the second application on 05.11.2017 as Overseas Citizens of India living in India, the respondents No.1 and 2 cannot stake claim for seniority based on the first application dated 19.7.2016. Most importantly, the respondents 1 and 2 will have to wait 16 for a referral to adopt based on their seniority depending upon the second application dated 5.11.2017 as 'Overseas Citizens of India living in India'.
14. On the other hand, Ms. Jayna Kothari, the learned counsel for the respondent Nos.1 and 2, argued that these respondents had been earnest and bona fide in furnishing the details as required while submitting their two applications, and also in updating the change in citizenship status of the respondent No. 1. The learned counsel emphasised that the online 'Child Adoption Resource Information and Guidance System' has no definite procedure for updating any change in the circumstances of the Prospective Adoptive Parents during the period between the date of registration, and the referral of a child for adoption. Therefore, respondents No.1 and 2 informed their Specialised Adoptive Agency, who in turn updated the appellants, 17 about changing the citizenship status of the respondent No.1.
15. Secondly, the Specialised Adoptive Agency also informed the appellants about the request of the respondent Nos.1 and 2 to permit them to continue their first application dated 19.7.2016. The respondents were bona fide in submitting the second application as 'Overseas Citizens of India living in India' based on the advice that they had in the matter. Thus, no mala fides can be alleged in the submission of the second application on 5.11.2017. Even the appellants have acknowledged the change in status: firstly, when the appellant No. 2 sent an email to the respondent No.
2. Secondly, when the second Home Study Report was approved referring to these respondents' second application registration number. In this regard, the learned counsel for the respondents No. 1 and 2 invited the attention of this court to the email correspondences 18 between the appellants and the respondents No.1 and 2 which are appended to the writ petition.
16. Thirdly, in the circumstances, as borne out by these emails, which are undisputed, the Writ Court is justified in concluding that these respondents' piquancy was by turn of an event (change in the citizenship of the respondent No. 1) that was beyond the control of these respondents. Therefore, it was an appropriate case for the writ Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in directing the appellants to consider and examine the claim of the respondent Nos. 1 and 2 on the strength of their first application dated 19.7.2016. Such directions are issued, given these respondents' peculiar circumstances and the appellant's own conduct, to do complete justice to the respondent Nos. 1 and 2 subject to the condition that its decision shall not be construed as a precedent.
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17. In view of the rival contentions, the question that arises for consideration is: whether the appellants have made out any case for interference with the discretion exercised by the Writ Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India or not?.
18. The first contention on behalf the appellants is that the respondents No. 1 and 2 did not furnish their passport numbers in the first application dated 19.7.2016, and they furnished different phone numbers when they submitted their second application on 05.11.2017. Therefore, the online Child Adoption Resource Information and Guidance System could not invalidate the first application by the respondents No.1 and 2. If the respondent Nos.1 and 2 had furnished all the details as well as similar details as aforesaid, the online system would not have referred Baby Shomya for adoption by these respondents. This contention will 20 have to be negatived for different reasons: firstly, the Writ Court on appreciation of the material on record has observed that it was not mandatory for the respondent Nos. 1 & 2 to furnish the passport number in the first application, and as such the respondent Nos.1 and 2 cannot be found fault with in that regard. Secondly, the Writ Court after examining the applications, has concluded that the respondent Nos.1 and 2 had neither withheld any information, nor furnished any false information. Thirdly, the Writ Court has also concluded that it cannot be said that the respondent Nos. 1 and 2 had either furnished false, or withheld any information because the details furnished by these respondents had been verified twice while submitting the Home Study Report as mandated under the Regulations, 2017. These conclusions are reasonable and justified in view of the material on record. The appellants have not been able to demonstrate that the findings by the Writ Court 21 in these regards suffer from any infirmities or irregularity.
19. The Writ Court, even as regards the respondents Nos.1 and 2 updating the change in citizenship status of the respondent No.1 and filing of the second application 05.11.2017, has concluded (upon scrutiny of all the material relied upon by the appellants) that the respondents Nos.1 and 2 had intimated the appellant No. 2 about the change in citizenship status of the respondent No.1, that a separate Home Study Report had been subsequently updated on the aforesaid Child Adoption Resources Information and Guidance System, that the appellant No.2 had acknowledged the intimation of change in the citizenship status of the respondent No.1, and that the appellants, despite such intimation, had not only assured to consider the request of these respondents to continue their first application, but had also extended a 22 ray of hope to them by congratulating them on their acceptance of the referral of Baby Shomya for adoption and requesting them to contact the respondent No.3 to spend time with the child. The appellants have failed to make out any ground for interference even as regards these findings by the Writ Court.
20. The next contention on behalf the appellants is that the respondents No.1 and 2 cannot be permitted to pursue their first application after they submitted the second application on 05.11.2017 as 'Overseas Citizen of India Prospective Adoptive Parents living in India' consequent to the change in the citizenship status of the respondent No.1. This submission is pivoted on the contention that the first application by the respondent Nos.1 and 2 was under a separate category whereby they were entitled to a referral based on their seniority in that particular category. But with both the respondent Nos. 1 and 2 becoming Overseas Citizens of 23 India, perforce they migrate to another category. Hence, they would be entitled to referral of a child for adoption based only on their seniority in such category.
21. These contentions will have to be considered in the light of another important intervening change in the law governing the procedure for adoption during the period between these respondents' first application dated 19.7.2016 and the second application dated 05.11.2017.
22. As of the date of the first application by the respondent Nos.1 and 2 i.e., 19.7.2016, the extant Guidelines, 2015 issued in exercise of the powers conferred by sub-section 3 of Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000, governed the procedure for adoption. But, as of the date of the second application by the respondent Nos.1 and 2 i.e., 05.11.2017, the Juvenile Justice (Care and Protection of Children) Act, 2000 was re-enacted by the 24 parliament in enacting the Juvenile Justice (Care and Protection of Children) Act, 2015 ('Juvenile Justice Act', for short), and Regulations, 2017 were issued in exercise of the powers conferred under Section 68(C) read with Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act 2015 superseding the Guidelines, 2015.
23. There are significant differences in the provisions of the Guidelines, 2015,and the Regulations, 2017 insofar as seniority of the prospective adoptive parents when they migrate from one category of prospective adoptive parents to other categories; such differences in this regard are as follows:
i. Guidelines, 2015 provided separate procedure for adoption by Resident Indians (under Chapter III) and a separate procedure for adoption by Non-Resident Indian, Overseas Citizen of India and foreign prospective adoptive parents (under chapter IV) 25 with a slightly modified procedure for adoption by Overseas Citizens of India or foreign nationals living in India.
Under the Guidelines, 2015, an Overseas Citizen of India (as well as foreign national who is a citizen of a country that has ratified the Hague Convention) could adopt under the category of 'living in India', if such Overseas Citizen of India or foreign national had been living in India for one year or more as of the date of applying for adoption.
However, Regulations 2017 retaining the separate procedure under Guidelines, 2015 (with certain improvements) insofar as the procedure for adoption by Resident Indian, Non-resident Indian, Overseas Citizen of India and foreign prospective adoptive parents living in a country that has ratified the Hague Convention, stipulate that an Overseas Citizen of India or a foreign national of a country that has ratified the Hague convention would qualify to adopt under the 'living in India' 26 category if such Overseas Citizen of India or Foreign national is a habitual resident of India (emphasis added).
ii. As regards the seniority of the prospective adoptive parents, Guidelines, 2015 stipulated that there shall be two seniority lists - one list consisting of Resident Indian and Non-resident Indian Prospective Adoptive Parents, and another common list consisting only of Resident Indian, Non-resident Indian, Overseas Citizen of India and Foreign Prospective Adoptive Parents. Further, the Guidelines, 2015 stipulated that the seniority of Resident Indians shall be reckoned from the date of online registration and submission of the documents, except for Home Study Report, in Child Adoption Resource Information and Guidance System, while the seniority of Non-resident Indian/Overseas Citizen of India and Foreign Prospective Adoptive Parents shall be reckoned from the date of online 27 registration and submission of all documents including the Home Study Report in Child Adoption Resource Information and Guidance System.
However, in Regulations, 2017, the requirement of two separate lists is done away with. Regulation 41 of Regulations, 2017 stipulates that "all prospective adoptive parents shall be referred children on the basis of a single seniority list which shall be maintained from the date of registration and other criteria as stipulated under these regulations". But, the difference in the date for determining the seniority between resident Indians and Non-resident Indian/Overseas Citizen of India/Foreign Prospective Adoptive parents is retained.
24. Further, the appellants have not been able to point out any provision from the Regulations, 2017 which contemplate, and provide for, a situation where 28 the status of the prospective adoptive parents change during the pendency of their application for adoption.
25. The aforesaid differences between the Guidelines, 2015 and Regulations, 2017, namely, treating Overseas Citizens of India who are habitually residing in India as Overseas Citizens of India living in India and prescribing a common seniority list is juxtaposed with the Regulations, 2017 being silent about the change in status of the prospective adoptive parents during the period between the date of application for adoption and completion of the adoption process. Such a juxtaposed reading indicates that the seniority of Prospective Adoptive Parents would not be lost when such Prospective Adoptive Parents migrate from one category to one another category. Otherwise, the Regulations, 2017 would not have stipulated that all the Prospective Adoptive Parents shall be referred children on the basis of a single seniority list. 29
26. Therefore, the appellants will not be justified in contending that the respondent Nos.1 and 2 lose their seniority or entitlement on the basis of their first application with the change in citizenship status of respondent No.1. Further, the undisputed fact that the respondent Nos.1 and 2 are entitled to adopt an Indian child despite the change in citizenship status of respondent No.1, and the appellants' own conduct in referring Baby Shomya for adoption acknowledging the subsequent application by these respondents as Overseas Citizen of India habitually living in India would also be relevant in this regard.
27. Insofar as the provisions of Section 59 of the Juvenile Justice Act, which requires a child, who is legally declared to be free for adoption, to be first offered for adoption by Indian/Non-resident Indian Prospective Adoptive Parents, before such child is offered for adoption by other Prospective Adoptive Parents, the Writ 30 Court has examined the true import and significance of the provisions of Section 59 of the Juvenile Justice Act. It has concluded that the true import and significance of Section 59 of the Juvenile Justice Act is to ensure that an orphaned child is adopted by Indian parents (or Indians who have acquired the status of Non-resident Indians) so that the child gets an opportunity to grow in similar and congenial environs.
28. Significantly, from the undisputed facts and circumstances, and the grounds canvassed on behalf of the respective parties, it emerges that the parties do not join issue on the point that if the change in citizenship status of the respondent no.1 were to be delayed, meanwhile a reference was made to the respondents Nos.1 and 2 for adoption based on the first application dated 19.7.2016 (and the legal process for adoption completed), the respondent No.1 and 2 would not have been in the present quagmire, as they would have 31 adopted the child before there was a change in the citizenship status of the respondent No. 1.
29. The question therefore is, should the respondent Nos. 1 and 2 be denied the preference contemplated under Section 59 of the Juvenile Justice Act, because the respondent No.1 is also a US citizen though the respondent Nos.1 and 2 continue to habitually reside in India? Indeed, as held by the Writ Court, the true import of the provisions of Section 59 of the Juvenile Justice Act is to ensure that, to the extent possible, an Indian child gets an opportunity to be with Indian parents in a similar and congenial environs. Therefore, if the respondent Nos.1 and 2, who continue to habitually reside in India, are permitted to pursue their first application (as an exception in the peculiar circumstances of the case and in the light of their entitlement to seniority on the basis of such application), it cannot be said to violate the 32 provisions of Section 59 of this enactment. This would be especially so when it is intended only as an exception in the peculiar circumstances and not as a precedent.
30. For the aforesaid reasons, this Court is of the considered opinion that the Writ Court has rightly concluded that the appellants were not justified in denying the benefit of referral of the child, Baby Shomya, for adoption by the respondent Nos. 1 and 2, and that no grounds are made out for interference with the exercise of extraordinary jurisdiction by the Writ Court under Article 226 of the Constitution of India in the peculiar facts and circumstances that congeal into exceptional circumstances. Therefore, the writ appeal is rejected and consequentially, the pending applications are also disposed of. The appellants are directed to implement the directions of the writ Court within a period of four weeks from the date of receipt of the certified copy of this order.
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31. In view of the dismissal of the writ appeal, and the further direction to the appellants to implement the directions of the writ Court within the further period as stated above, the contempt proceeding is closed.
Sd/-
JUDGE Sd/-
JUDGE nv*