In a landmark ruling, the Bombay High Court on Thursday held that if a married couple of which one is an Indian and the other is a foreign national, wants to adopt a child, then all such cases will be treated as an in-country adoption and not a foreign adoption.
The ruling by Justice V M Kanade and B P Colabawalla comes after an American woman, living in India for the past six years, and married to an Indian national moved High Court saying the central adoption agency had stalled adoption proceedings for her in this very ground.
The court, in a first, will also set detailed guidelines so that there is no ambiguity in such cases of adoption.
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After the ruling, the central adoption agency sought a stay on the order but the court rejected his plea.
The woman, in her 50s, wanted to adopt the six-year-old child but the Central Adoption Resource Agency (CARA) asked her to get a no-objection certificate from the American embassy.
The woman’s lawyer, Shirin Merchant, had argued that CARA does not have any provision for a case like hers – one Indian national and another with a different nationality. Merchant had earlier pointed out that people dither and eventually back out of adoption as a result of complex CARA rules and procedures.
She claimed the woman has been in India for the past six years and will live here permanently.
“Therefore, it is not possible to procure a certificate of non-objection from the embassy or mission of my country,” the woman says in the petition.
However, Nalawade informed that she had in May 2014, procured an NOC from the American embassy.
“Lay persons like my clients do not know the procedure and as asked by the authorities had then procured one,” the woman’s lawyer contested.
The HC had then said that the six year old’s welfare as the “topmost priority”. “ The child and mother have developed affinity. They are happy. Rules say love and affection don’t matter. But if a person can take care of the child, then there is no need to go into technicalities. The most important thing is the welfare of the child,” the judges said.
CARA had submitted that adoption proceedings would be “jeopardised” if people would start taking a legal recourse like the present one. Going by the instructions from CARA secretary Veerendra Mishra, the lawyer said there were thousands prospective parents waiting the queue.
Situation where a child develops a bond with the adoptive parent has to be considered irrespective of rules, the court, however, observed.
The six-year-old male child was born to an unwed woman and was put in a Pune-based adoption agency in 2012. The biological mother relinquished her rights over the child and went for a re-marriage. Under the Indian law, the adoption agency took care of the child till the age of six, after which advertisements were put out for adoption. The agency didn’t find it easy to find a suitable home as the child needed a proper support system for his special needs.
After a long time, a single mother showed willingness to adopt the child and he was placed in her care. However, she had to return him to the agency, after she failed to adapt with the needs for the child. The American national, in her fifties, has been living in India for the past six years. She had volunteered to work as a teacher for destitute children after realising her inability to bear children. It was at the agency’s centre, where the American national had volunteered, that she got acquainted with the child.