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Bombay High Court
Bronson Barthol Dias And Anr vs Central Adoption Resource Authority … on 7 April, 2025
Author: G.S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:16806-DB
PALLAVI 11-WP-3506-2025 (C) (1).doc
MAHENDRA
WARGAONKAR
Digitally signed by
PALLAVI MAHENDRA IN THE HIGH COURT OF JUDICATURE AT BOMBAY
WARGAONKAR
Date: 2025.04.12 CIVIL APPELLATE JURISDICTION
19:12:06 +0530
WRIT PETITION NO. 3506 OF 2025
1. Bronson Barthol Dias
2. Ruth Bronson Dias ...Petitioners.
Versus
1. Central Adoption Resource Authority,
2. Relaxation Committee,
3. The Union of India
through the Ministry of
Women and Child Development.
4. Maharashtra State Adoption Resource Authority.
5 Vatsalya Trust. ...Respondents
__________
Adv. Meenaz Kakalia, Gayatri Sathe i/b. Mulla & Mulla & CBC, for the
Petitioners.
Mr. A.I. Patel, Addl. GP, for the Respondent No.4.
Mr. Y.R. Mishra a/w Mr. Upendra Lokegaonkar, Mr. Sachidanand T. Singh, for
Union of India.
__________
CORAM : G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
DATE : 7 APRIL 2025
ORAL JUDGMENT (Per G.S. Kulkarni, J.) :-
1. The petitioners are Prospective Adoptive Parents (PAP). They have
two daughters born on 24 August 2014 and 20 June 2019 respectively. It
is the petitioners case that these biological children suffer disability. The
first daughter was diagnosed with Nystagmus a few months after her birth,
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followed by a cyst in her brain. She was operated for the removal of the
cyst, but the damage in the process was permanent, which caused her
visual impairment. So far as the younger daughter is concerned, it is stated
that her case was falling into Global Developmental Delay as she suffers
from (i) no eye contact, (ii) hearing impairment, (iii) syndromic facial
features and (iv) delayed milestones. She has been issued Unique
Disability ID under the provisions of the Persons with Disabilities Act,
2016.
2. It is in these circumstances, the petitioners on 10 September 2022
registered themselves as PAPs by registering on the Child Adoption
Resource Information and Guidance System (“CARINGS”) portal of
respondent no.1 being an application to adopt a child. At the time when
such application was made the ‘Adoption Regulations 2017’, were in force.
The receipt of the said application was confirmed. Also the
acknowledgment letter noted that the Adoption Regulation 2017 were to
be applied. The petitioners have contended that the petitioners also
uploaded requisite documents on 10 September 2022 and applied to the
recognized Specialized Adoption Agency recognized by respondent no.1
for conducting the home study report.
3. It is the petitioners’ case that during the pendency of their adoption
a new regime under the Adoption Regulations 2022 (for short “the 2022
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Regulations”) was brought into force vide notification dated 23 September
2022. Such rules are now made applicable by respondent in deciding the
adoption applications. Our attention is drawn to Regulation 5(7) of the
2022 Regulations which inter alia provide that couples with two or more
children shall only be considered for special needs children as specified in
clause (25) of regulation 2, and hard to place children as stated in clause
(13) of regulation 2 unless they are relatives or step-children. It is the
petitioners’ contention that in fact the said rules ought not to have been
applied to the petitioners’ application, considering the peculiar facts of the
petitioners case. Also for the reason that as the 2017 Regulations (supra)
were to be applied to the petitioners’ application as per the
acknowledgement made on the petitioners’ application. This more
particularly, as Regulation 9(10) of the 2017 Regulations required that a
Home Study Report (“HSR” for short) was to be complied within 30 days
from date of uploading of the requisite documents, hence, except for the
delay of the authorities, the adoption process was required to be completed
without the application of the 2022 Regulations of which, the petitioners
contend that the Steering Committee was well aware.
4. On the backdrop of the 2022 Regulations, respondent no.1 issued
an office memorandum dated 21 March 2023 providing that PAPs already
having two children will not be ineligible to adopt a normal child,
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effectively making the 2022 Regulation retrospectively applicable.
5. It is the petitioners contention that when the petitioners accessed
their account on the designated portal of the respondents, a message was
reflected, on the home page, which informed the petitioners of the
rejection of the petitioners’ application on the basis of the Office
Memorandum dated 21 March 2023. The said communication reads
thus:-
“Infot Congratulations! Your Home Study Report (HSR) has been
approved and it has been decided to disallow the PAPs already having
two children to adopt a normal child. Kindly see the office
memorandum dat : 21-03-2023 uploaded in the CARA website.”
6. It is thus clearly seen from the aforesaid rejection of the petitioners’
application that the same has been rejected by applying the Office
Memorandum dated 21 March 2023. It would be appropriate to note the
contents of the said memorandum which read thus:-
"E103493 CARA-LP07/14/2022 Date 21.03.2023
कार्याालर्या ज्ञापन
OFFICE MEMORANDUM
As per Regulation 5(7) of the Adoption Regulations 2022,
couples with two or more children shall only be considered for
special needs children as specified in clause (25) of Regulation 2, and
hard-to-place children as stated in clause (13) of Regulation 2 unless
they are relatives or step-children.
The Steering Committee of the Authority in its 34th meeting
held on 15 February 2023 has taken a decision in Agenda No. 34.06
to disallow the Prospective Adoptive Parents (PAPs) already having
two children to adopt a normal child. However, such PAPs shall be
eligible to reserve children available on the Immediate Placement or
Special Needs portal.
While the decision is being executed, all registered Prospective
Adoptive Parents (PAPs) may be informed by the
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SARAS/DCPUs/SAAs and the CAS/IDMs/AFAAs about NOTA on
the aforementioned issue.
(डॉ जगन्नाथ पति ) (Dr. Jagannath Pati)
तिनदे शक (कार्याक् रम) Director (Programme)
Copy to:
i. All State Adoption Resource Agencies (SARAS), District Child
Protection Units (DCPUs) and Specialised Adoption Agencies
(SAAS)ii. All Central Authorities (CAs), Indian Diplomatic Mission (IDMs)
and Authorized Foreign Adoption Agencies (AFAAS).”
7. In the aforesaid circumstances, on 17 September 2024, the
petitioners made an application to the Relaxation Committee of
respondent no.1, which is empowered to grant exemptions, to any of the
provisions of the 2022 Regulations. In their application, the petitioners
requested respondent No.1 that an exception be made in the petitioners’
case to the application of Regulation 5(7) of the 2022 Regulations. As
there was no response on such application, and the petitioners’ application
was erroneously/ arbitrarily rejected by the impugned communication as
noted hereinabove, the present petition is filed praying for the following
substantive reliefs:-
“(a) That this Hon’ble Court be pleased to issue a Writ of Certiorari, or Writ,
Order or Direction in the nature of Certiorari to quash and set aside the
O.M. dated 21st March 2024 bearing no.E103493 CARA-LP07/14/2022
issued by the Respondent No.1 herein:
(b) That this Hon’ble Court be pleased to issue a Writ of Certiorari or Writ,
Order or Direction in nature of Certiorari to quash and set aside the
decision of Respondent No.1 to disallow the Petitioner’s application for
adoption on the basis of the O.M. dated 21 st March 2023 bearing
no.E103493 CARA-LP07/14/2022 issued by the Respondent No.1.
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(c) That this Hon’ble Court be pleased to direct the Respondent No.1 to place
the Petitioners on the waiting list for referral of a child and that their
seniority be determined from the date on which their seniority be
determined from the date on which their application was made on the
Designated Portal of the Respondent No.1, i.e. 13th August 2022.”
8. The learned counsel for the petitioners has made submissions
drawing our attention to the averments as made in the petition, to which
we have made a reference in the foregoing paragraphs, on the genuine
need of the petitioners to have adoption of a child, over and above their
two biological children. Our attention is also drawn to the 2022
Regulations which are sought to be applied in informing the petitioners
that the petitioners’ case would stand covered by the applicability of the
Regulations 5(7) of the 2022 Regulations. To appreciate the applicability
of the 2022 Regulations, we extract Regulations 2(13), 2(25) and
Regulation 5(7) of the 2022 Regulations which read thus:-
“2(13) “Hard to place child” refers to a child who has not been placed in
adoption after going through the procedure as mentioned below:
(a) a normal child under the age of five who has not been placed in
adoption with a resident Indian or non-resident Indian or
Overseas Citizen of India Card holder prospective adoptive
parents within sixty days after referral;
(b) or a child over the age of five or siblings who has not been placed
in adoption with a resident Indian or non-resident Indian or
Overseas Citizen of India Card holder prospective adoptive
parents within thirty days after referral;
(c) categories of children mentioned in clause (a) and (b) above, who
have not been placed in adoption within the prescribed time limit
shall further be shown to all the prospective adoptive parents
referred to in clause (a) and (b) for another seven days period;
(d) after expiry of the stated time line in clause (c), the child shall be
referred to foreign prospective adoptive parents for fifteen days;
(e) the child not placed in adoption after clause (a) to (d) above
stipulated timeline shall be categorised as hard to place.
2(25) “special needs child” means a child who is suffering from any disability
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as provided in the Rights of Persons With Disabilities Act, 2016(49 of
2016)as given in Schedule XVIII and Schedule III (Part E) of these
Regulations.
5. Eligibility criteria for prospective adoptive parents.― (1) The
prospective adoptive parents shall be physically, mentally, emotionally
and financially capable, they shall not have any life threatening medical
condition and they should not have been convicted in criminal act of
any nature or accused in any case of child rights violation.
(2) ………………
(3) ...................
(4) ..................
(5) ..................
(6) ..................
(7) Couples with two or more children shall only be considered for special
needs children as specified in clause (25) of regulation 2, and hard to
place children as stated in clause (13) of regulation 2 unless they are
relatives or step-children.”
9. Learned counsel for the petitioners would submit that such decision
of the respondents, needs to be interfered by this Court, for the reason that
it does not take into consideration, the special circumstances of the
petitioners’ case, namely that both the biological daughters are “children
with disability”, hence, what the petitioners intend is to adopt a normal
child. In such context, the learned counsel for the petitioner has drawn our
attention to the provisions of Regulation 63 of the 2022 Regulations
which provide for power to relax and interpretation. The said Regulation
reads thus:-
“63. Power to relax and interpretation. – (1) The power of relaxation
and grant exception to any provision of these regulations in
respect of a case or class of cases shall be vested with the
Relaxation Committee of the Authority.
(2) Relaxation Committee of the Authority shall be chaired by the
chairperson of Steering Committee of the Authority and two
members consisting of its Chief Executive Officer and a member
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(3) No decision of the Relaxation Committee of the Authority shall
ordinarily have the effect of altering the seniority of any
prospective adoptive parents unless reasons are recorded in
writing and the primary consideration being the best interests of
the child.
(4) In case of any ambiguity in interpretation of any of the provisions
of these regulations, the decision of the Authority shall prevail.”
10. It is therefore, the petitioners’ case that it could not be that
Regulation 5(7) of the 2022 Regulations is applied in by a straight jacket
method and/or a mechanical computerized method, to reject the
petitioners’ application, without considering the specific case of the
petitioner for the need to adopt a “normal child” which was certainly a
legal right, as available to the petitioners prior to the 2022 Regulations
namely under Adoption Regulations 2017 read with the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
11. On the other hand, Mr. Mishra, learned counsel for the respondent
opposing the petition would place reliance on a decision of the learned
Single Judge of the Delhi High Court in the case of Debarati Nandee vs.
Tripti Gurha1, to contend that the learned Single Judge has held that the
application of the petitioners therein for adoption and was not entertained
in view of the specific Regulations, albeit the case therein was of a
simplicitor adoption of a third child falling under the regime of the 2022
Regulations. Hence, Mr. Mishra’s contention is that the petition be not
entertained which in fact would deserve to be dismissed applying 2022
1 (2024) 307 DLT 422
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Regulations.
12. Having heard the learned counsel for the parties and having
perused the record, we are of the opinion that there is much substance in
the contentions as urged on behalf of the learned counsel for the
petitioners.
13. At the outset, we may observe that the impugned order simplicitor
nay mechanically applies the provisions of Regulation 5(7) of the 2022
Regulations, merely on the basis that the petitioners have two biological
children, hence, they are held to be permitted to adopt a third normal
child, as clearly seen from the impugned rejection. The impugned order is
not a reasoned order. In our opinion, what was imperative to be
considered by respondent no.1 was that the petitioners’ specific case which
was certainly a special case, namely of these applicants with two children
having admitted disabilities. Hence, the petitioners’ application deserved a
special consideration. It is not well founded that the petitioners case could
be decided by mechanically applying the 2022 Regulations. Mr. Mishra
does not submit that 2022 Regulations applied retrospectively. In any case,
even if the 2022 Regulations are to be applied as rightly contended on
behalf of the petitioners, the 2022 Regulations makes a provision in
Regulation 63 to relax the application of the 2022 Regulations i.e., to
consider some cases by not applying the 2022 Regulations. Thus, it was an
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obligation on the part of Respondent No.1 and its Steering Committee to
be alive to such cases which invoked the legitimate applicability of
Regulation 63. The intention behind Regulation 63 is to remove the
lacuna in dealing with cases which have special circumstances or which
warrant specific consideration or some relaxation of the Regulations, so as
to make the procedure of adoption effective, on case to case basis. Such
consideration of the petitioners’ application with appropriate application
of mind is certainly lacking in the impugned computer generated rejection
reflected on the portal, in rejecting the petitioners’ application.
14. Also in our opinion, it was certainly an obligation on the part of the
concerned officers of respondent no.1 to provide appropriate reasons
considering the application as made by the petitioners and on its merits.
This should have been after granting the petitioners an opportunity of
being heard, so that the petitioners could explain the specific case as
contained in their application.
15. Even if the Petitioners’ application was to be decided by applying
the Office Memorandum dated 21 March 2023 (OM), it cannot be
considered that the said OM in any manner, would bring about a regime
contrary to the statutory Regulations, which was in force. A holistic
application of the 2022 Regulations which encompasses applicability of
Regulation 63 as invoked by the Petitioners was certainly necessary in the
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facts of the present case. This is exactly what had not been done, in the
impugned rejection of the petitioners’ application. Even assuming that
there was to be some parity and more particularly in Regulation 5(8) of
the 2017 Regulations and Regulation 5(7) of the 2022 Regulations,
nonetheless, by virtue of Regulation 63 of the 2022 Regulations PAPs
having two disabled children, desiring to adopt a normal child could have
been a subject matter of consideration in exercising powers under
Regulation 63. Thus look from both angles namely on applicability of
Regulation 5(8) of the 2017 Regulations and Regulation 5(7) of the 2022
Regulations, the petitioner’s case warranted a different consideration. We
may also observe that it can never be intention of the statutory mandate
that a couple which already has disabled children could be barred from
adopting a normal child. This would certainly be not a correct reading of
the Regulations as also cannot be considered to be the correct applicability
of what has been provided in office memorandum dated 21 March 2023.
Also the 2022 Regulations are required to be read and applied so as to
forward the object and intention of Sections 56(1), 57 read with Section
58 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
The impugned decision certainly does not take into consideration such
legitimate application of law.
16. In so far as Mr. Mishra’s reliance on the decision of the Delhi High
Court in the case of Debarati Nandee (supra) is concerned, it is not well
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founded, as the facts of the said case were totally in variance and distinct
with the case in hand. As noted hereinabove, it was simplicitor a case of
the PAP having two natural biological children and the PAP, wanted to
have a third child in adoption. It is in these circumstances, applying the
provisions of Regulation 5(7) of the 2022 Regulations, such request was
not entertained. In the facts of the present case, the rejection of the
petitioners’ application is not simplicitor on the applicability of strict
parameters of Regulation 5(8) as it stood under 2017 Regulations or on a
strict application of Regulation 5(8) of the 2022 Regulations, as clearly
seen from the impugned rejection (as extracted hereinabove), but merely
on the applicability of the Office Memorandum dated 21 March 2023.
The said decision hence would not assist the respondents.
17. Before parting we may observe that human life itself is a mixed bag,
which has aspirations, expectations and challenges. Feeling of happiness
and fulfillment are some of the key factors in the successful journey of
one’s life. It is too personal and subjective, as to from what, individuals
would derive happiness and fulfillment. This more particularly when they
intend to overcome things, which engulf their mind on issues which
deprive them of wholesome happiness, fulfillment and emotional
satisfaction. It is in such sheds of human life, deep fulfilling
relationship/bonds with children contribute to have a meaningful life so as
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to derive satisfaction in the expectations such individuals nurture. In our
opinion it is in such complex and emotional mindset the parents of the
children with disabilities naturally would have an intense dedication,
desire and happiness to receive a normal child in adoption so as to balance
their life and to have an experience to raise a normal child, which they are
missing. This of course, and undoubtedly, while maintaining their love
and devotion to the children suffering disability, who can never be
neglected and would always be cared. There is nothing wrong if they are
looking for a new hope and optimism with their ability of receiving an
additional member in their family and by doing so achieve a mutual
fulfillment to make life more meaningful towards fulfillment of the dream
they cherish. These are some of the passing thoughts which have touched
us considering the basic humanitarian needs and considerations thereof.
Be it so, it is the Steering Committee which would possess the expertise on
the nuances of such issue so as to deliberate and apply itself to the peculiar
human needs, which certainly would differ from case to case, however
within the parameters of law.
18. In the aforesaid circumstances, we are of the clear opinion that the
petition would be required to be allowed by setting aside the impugned
communication and directing the respondents to reconsider the
petitioners’ application in accordance with law and more particularly, by
applying the power of relaxation as conferred under Regulation 63.
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Hence, the following order:-
ORDER
(i) The impugned communication rejecting the petitioners’
application for adopting a third child, is quashed and set
aside.
(ii) The petitioners’ application is restored to file of the
Respondent/Competent Authority, which shall be decided in
accordance with law and after granting an opportunity of
hearing to the petitioners and more particularly, by
considering the application of Regulation 63 of the 2022
Regulations [“Power to Relax”].
(iii) Let the decision on the petitioners’ application be taken
within a period of six weeks from the date a copy of the
order is presented before the concerned authority.
(iv) All contentions of the parties on the fresh order to be passed
by the respondents are expressly kept open.
(v) Needless to observe that in the event the petitioners’
application succeeds, the regular procedure in law be
immediately set into motion.
(vi) Disposed of in the aforesaid terms. No costs.
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