The Bombay High Court, hearing a case in which an American woman married to an Indian was facing problems in adopting an Indian boy, Thursday held that the case should be treated as in-country adoption and said rules involving foreign nationals did not apply here. The landmark ruling is likely to help the couple adopt a six-year-old child with special needs and can set a precedent for all such couples who have attained a People of Indian Origin (PIO) status.
“He (child) wanted to be with me and we wanted to be with him. I am overjoyed as I did not want him to go to a remand home. The faith in the Indian judicial system is strengthened. I will follow all procedures and be with him,” the American woman, currently fostering the child, told The Indian Express over phone from Pune.
Besides passing the order, Justices V M Kanade and B P Colabawalla are also likely to frame guidelines on July 30 for all such adoptive parents. They have observed in their judgment that the Central Adoption Resource Agency (CARA) had “misread” its rule for foreign nationals living in India.
The American national, in her fifties, had volunteered to work as a teacher for destitute children after realising her inability to bear children. At the Pune-based adoption agency’s centre, where the American national had volunteered to work, she got acquainted with the child. Born to an unwed woman, the six-year-old boy was put up for adoption by the agency in 2012. The biological mother had relinquished her rights over the child after giving birth and got married (not to the boy’s father). Under Indian laws, the adoption agency took care of the child till the age of six, after which advertisements were put out for adoption. The agency did not find it easy to get a suitable home for the child who needed a proper support system for his special needs.
The woman’s lawyer, Shireen Merchant, had argued that CARA did not have any provision for a case like this — an Indian national married to a person of different nationality. She had claimed the woman had been in India for the last six years and would live here permanently. “Therefore, it is not possible to procure a certificate of non-objection from the embassy or mission of my country,” said the couple’s petition.
Rule 40, which was applied by CARA, is for foreign nationals living in India. Foreign nationals are required to give an NOC from the respective embassies under this provision. The HC observed that prima facie it would not apply since the man was an India citizen and his wife had obtained PIO status.
“It, therefore, cannot be said that the petitioners are foreign nationals living in India,” the court observed. It further said Rule 8 (6) of the CARA guidelines would also not apply as it was for “order of priority” in inter-country adoptions. The Central agency had stressed that this rule would apply in the present case.
With Thursday’s ruling, the couple can file a petition in a district court and follow the same procedure as in the case of domestic adoptions. This will be followed by child being put in foster care, but six-year-old child in this case is already in such care.