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‘Each child is a gift of God’: Delhi HC allows Maltese couple to adopt child with special needs

The court was dealing with a petition by the couple challenging a communication issued by the Central Adoption Resource Authority (CARA), where the child was housed, about a complaint received by the National Commission for Protection of Child Rights (NCPCR) from the child's uncle.

delhi high court, delhi child adoption news, malta couple child adoption news, indian expressWith respect to the video advertisement on YouTube, the high court noted that the packaging of the product with which Britannia Milk Bikis is compared in the video advertisements is similar to the plaintiff’s Parle-G. (File)

The Delhi High Court has allowed a couple from Malta to adopt a child with special needs holding that “prospective adoptive parents do not have the right to pick or choose a particular child”.

In a 46-page judgment delivered on November 25, a single-judge bench of Justice Yashwant Varma observed that the fundamental precept of adoption is that the need or the desire of prospective adoptive parents would always be subservient to the interest of the child. The court observed: “The act of adoption is not available to be exercised with respect to a child-specific. 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”.

Noting that the child’s adoption process has taken almost three years, the court said that this “arduous and torturous process of placement of a special needs child must thus be conferred a closure. Her confusing and disturbing initial years have undoubtedly been traumatic. It is time that she finds the quiet and comfort of a home and a family”.

The court thereafter directed Central Adoption Resource Authority to take further steps to complete the process of adoption in accordance with the no-objection certificate which has been issued by it. The court said that it expects all concerned authorities to aid and assist in the expeditious conclusion of all legal formalities relating to the child’s adoption by the couple from Malta.

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The court was dealing with a petition by the couple challenging a communication issued by the Central Adoption Resource Authority (CARA) informing the specialised adoption agency, where the child was housed, about a complaint received by the National Commission for Protection of Child Rights (NCPCR).

The child was found abandoned in a cremation ground in October 2019 and thereafter was placed in an orphanage in Bareilly, Uttar Pradesh, for a period of two years before she was matched for adoption. She is categorised as a special needs child who suffers from epilepsy among other ailments. The child was declared legally free for adoption on July 28, 2020, and was offered for reservation on two separate occasions.

In the two rounds when she was made available for adoption under the special needs category, the petitioners alone applied and no resident Indian, non-resident Indian (NRI) or overseas citizen of India (OCI) exercised the choice to reserve the adoption.

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The complaint before the NHRC alleged a violation of adoption regulations that the adoption was illegal as it violated the priority principle, which grants preference to Indian parents over foreign parents. Through its communication, the CARA told the specialised adoption agency to withdraw the couple’s adoption petition from the competent court till the complaint is investigated. The complaint was made by the uncle of the child who asserted that it was his family members who had rescued the child and had been taking care of her needs and her medical expenses throughout. It was further asserted that in the course of their interactions with the child, both the complainant as well as his wife had become emotionally attached to her. They consequently applied for adoption and registered on the CARA’s portal on 13 November 2019. It is alleged that on the website, they could not see the details of the child under the category of special needs children.

On the concept of adoption and family, the high court observed that the bonds of family are not forged merely by blood but bonded by the love and care that we extend to those around us. “The court shudders at even imagining the first waking hours of Child “S” as she entered this world. Her fate thus cannot be left to the vagaries of litigation or to competing forces which seek to stake a claim upon her very existence and life, her body and soul”, the court said.

Referring to the regulations on the adoption of children in India, the court further opined that every child who enters this world must be recognised in law to have basic rights, a right and an opportunity to not just survive but to strive towards finding its true place amongst us. The bench said that while legal systems may adopt and incorporate principles of preference and priority amongst prospective parents, “none of them countenance, recognize or foster a right to choose a child”.

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Setting aside the CARA’s communication to the couple, the court noted that no adoption reservation with respect to the child was made by a resident Indian, NRI or OCI cardholder within the stipulated period prescribed under the regulations. It was only thereafter that the child was made available for inter-country adoption. “This was therefore not a case where the priority accorded to resident Indians including the complainant was violated or ignored. While the regulations accord primacy to resident Indians, NRIs and OCI cardholders, they cannot be interpreted to require CARA to continually defer the process of adoption till such time as a prospective adoptive parents falling in the aforesaid genre condescends to make a reservation”, the court held.

With respect to the complaint made by the child’s uncle to the NHRC, the court said that while his acts of rescuing and taking care of the child are laudable and deserve praise and gratitude, “the validity of an adoption and the proceedings undertaken by CARA cannot be adjudged based upon the support or succor that may have been provided to an abandoned or orphaned child”.

The court said that if this is done, it would amount to according to recognition to a right inhering in that “caregiver to claim a superior right when it comes to adoption and the creation of a priority which is otherwise neither envisaged nor sanctioned” under the adoption laws.

The court further rejected the NCPCR argument that a large number of placements are made in favour of adoptive parents who were residents of Malta. The NCPCR also alluded to “a possibility of irregularity being involved in the adoption process of the minor…”.

The court said that no breach of a fundamental procedure pertaining to the child’s adoption could be either pointed out or established by NCPCR.

First published on: 28-11-2022 at 11:27 IST
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