Bombay HC no for US kid’s adoption by Muslim couple from India

MUMBAI: Bombay high court refused to direct the Central Adoption Resource Agency (Cara) to approve the adoption of an American child by an Indian Muslim couple. It observed that neither the Juvenile Justice (Care and Protection of Children) Act nor the Adoption Regulations allow the adoption of a child of foreign citizenship unless the child is ‘in need of care and protection' or ‘in conflict with law.'
"There is no fundamental right of the petitioners to adopt an American child, which child does not fall within the applicability of the JJ Act and the regulations thereunder even if he is born to Indian parents.
 

Neither is there any violation of any fundamental right of the child of American nationality to be adopted by an Indian citizen," said Justices Revati Mohite Dere and Neela Gokhale on Wednesday.
They dismissed a petition by the childless couple from Pune who sought to adopt a child (now six years of age) from their California-based relatives. They brought him to India in Oct 2019.
As they are Muslims with no law for adoption, they approached the district court under Section 56 (2) for adoption from ‘a relative'. Cara, the regulator for in-country and inter-country adoption, refused to register them as prospective adoptive parents. They moved the high court, saying without valid adoption the child's stay in India may become illegal.
Their advocate, Shirin Merchant, argued that Section 56(2) provides for the adoption of a child from a relative. She said Cara is unnecessarily treating the adoption under AR 23 for NRI, OCI, and foreigners.

Cara's advocate, Y S Bhate, said the JJ Act and AR do not apply to the adoption of a child who is an American citizen by Indian parents.

The judges said the JJ Act applies to all matters concerning ‘child in need of care and protection' and ‘child in conflict with law'. Admittedly, the child does not fall within these definitions. "Hence, provisions of the Act… do not apply," Justice Gokhale wrote.

The judges said Section 56 (2) cannot operate independently of the Act. A relative must first relinquish the child for it to be a ‘child in need of care and protection'. Also, AR 23 provides for post-adoption procedures for bringing a foreign child adopted by Indian parents to India. The petitioners were "always at liberty to adopt this legal and regular procedure."

While Merchant insisted that the adoption be treated as in-country adoption provided under the AR, the judges said it has to follow the parent Act.

They said the petitioners' "predicament" can be resolved by Cara's suggestion to apply for Indian citizenship and following surrender by biological parents to follow the JJ Act or adopt the child in US.

The petitioners "were not inclined to accept the same".