Relatives Can't Adopt Foreign Child Who Isn't In Need Of 'Care & Protection' Or 'Conflict With Law' As Per JJ Act: Bombay High Court
The Bombay High Court has held that there is no provision under the Juvenile Justice (Care and Protection of Children) Act, 2015 or the Adoption Regulations, 2022, that permits the adoption of a foreign national child by Indian relatives, unless the child is in need of care and protection or is a child in conflict with law.A division bench of Chief Justice Alok Aradhe and Justice Neela...
The Bombay High Court has held that there is no provision under the Juvenile Justice (Care and Protection of Children) Act, 2015 or the Adoption Regulations, 2022, that permits the adoption of a foreign national child by Indian relatives, unless the child is in need of care and protection or is a child in conflict with law.
A division bench of Chief Justice Alok Aradhe and Justice Neela Gokhale dismissed a writ petition filed by an Indian couple seeking permission to adopt their biological nephew, a four-year-old US citizen, who had been brought to India and was residing with them.
“There is no fundamental right of the petitioners to adopt an American Child, which child does not fall within the applicability of the J J Act and the Regulations thereunder, even if he is born to Indian parents,” the court said.
The petitioners relied on Section 56(2) of the JJ Act, which permits the adoption of a child by relatives. CARA, however, contended that since the child is not a child in need of care and protection, the provisions of the JJ Act and Adoption Regulations are not attracted. It was argued that the JJ Act only applies to certain categories of children, and the Hague Convention prohibits private adoptions or adoption of foreign national children outside the authorised procedures.
The Court agreed with CARA's stand and observed that the definitions under Sections 2(12) and 2(14) of the JJ Act define the categories of children the Act applies to, and a foreign citizen child, not falling under those definitions, cannot be adopted under Indian law.
“There is no provision in the JJ Act nor the Adoption Regulations providing for adoption of a child of foreign citizenship even between relatives, unless the 'child is in need of care and protection' or a 'child is in conflict with law,” the Court said.
The Court also rejected the petitioners' argument that the adoption should be treated as an “in-country” adoption under Regulation 2(15), holding that this term must be understood in the context of the Act and the regulation cannot travel beyond the scope of the parent Act, i.e., the Juvenile Justice Act. The Court further remarked:
“Even if the present adoption is treated as an in-country adoption, the same has to follow the provisions of the parent Act and its applicability. Thus, in-country adoption must also be construed to be that of a 'child in need of care and protection' or a 'child in conflict with law'.”
The Court further rejected the proposition that the court, under its extraordinary jurisdiction, is vested with the power to allow such an adoption and issue directions to CARA.
Consequently, the writ petition was dismissed.
Case Title: Abdulkadir Lokhandwala & Anr. v. Central Adoption Resource Authority & Ors. [Writ Petition No. 6658 of 2024]