UNION OF INDIA & ANR. ETC.versusANKUR GUPTA & ORS.

                          [2019] 4 S.C.R. 31                               31


                 UNION OF INDIA & ANR. ETC.                                A
                                   v.
                      ANKUR GUPTA & ORS.
                (Civil Appeal Nos. 2017-2020 of 2019)
                        FEBRUARY 25, 2019                                  B
        [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
       Juvenile Justice (Care and Protection of Children) Act,
2015 – s.57, 58 & 59 – Adoption Regulations, 2017 (framed u/s.
68(C) r/w. cl.(3) of s.2 of the Act, 2015) – r.41 – Respondent Nos.1
                                                                           C
& 2 submitted application to adopt a child as Indian Prospective
Adoptive Parents – At that time, only respondent No.2 had citizenship
of USA – When both the respondents were waiting for referral of a
child for adoption, the respondent no.1 was also granted the U.S.
citizenship – On communication of the aforesaid development, the
competent authority referred the respondents’ to second registration       D
under category ‘Overseas Citizen of India’– Respondents requested
to continue their registration on the basis of the first registration –
Meanwhile, a baby ‘S’ was referred to the respondents, for
adoption – Respondents accepted the referral – However, a High-
level Committee rejected their request for permission to continue
                                                                           E
the first application under the category India Prospective Adoptive
Parents – Consequently, respondents were informed to wait for a
referral of another child as ‘Overseas Citizen of India’ – Writ petition
filed by Respondents against the said decision was allowed – On
appeal, held: The fact that both respondents had become U.S.
citizens, they were not eligible for adoption as Indian Prospective        F
adoptive parents living in India – Mere fact that Act or Regulations
does not provide for any mechanism to upload any further
information in first registration cannot alter the legal position and
consequences of acquiring the foreign citizenship by an Indian –
The consequences of obtaining U.S. citizenship of respondent nos.
                                                                           G
1 & 2 shall take its effect immediately – Therefore, by virtue of s.58
& s.59 of the Act, 2015 baby ‘S’ referred to the respondents declared
as legally free for adoption and in event adoption is not taken by
Indian prospective adoptive Parents within sixty days, the baby ‘S’
to be given to respondents in inter-Country adoption.
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                                  31
32            SUPREME COURT REPORTS                        [2019] 4 S.C.R.


A          Disposing of the matters, the Court
            HELD: 1. The respondent Nos.1 and 2 submitted their
     application as prospective adoptive parents living in India.
     Although, on the date of submission of application, respondent
     No.2 was already a US citizen, the respondent No.1 being Indian
B    citizen, the application was fully maintainable as per the provisions
     of Regulations and as per the guidelines applicable at the relevant
     time as Indian prospective adoptive parents. Even Regulation
     21(1) of Adoption Regulations, 2017 provides that if one of the
     prospective adoptive parents is foreigner and other is an Indian,
     such case shall be treated at par with Indians living in India. After
C    the respondent No.1 acquired the US citizenship on 06.12.2016
     and ‘Overseas Citizen of India’ (OCI) card was issued to
     respondent No.1 on 27.04.2017, second application was submitted
     on 05.11.2017 by the respondents for inter-country adoption both
     having become US citizens. In view of the fact that both had
D    become US citizens by 06.12.2016, they were not eligible for
     adoption as Indian prospective adoptive parents living in India.
     Mere fact that Act or Regulations does not provide for any
     mechanism to upload any further information in first registration
     cannot alter the legal position and consequences of acquiring the
     foreign citizenship by an Indian. The consequences of obtaining
E    US citizenship of respondent Nos.1 and 2 shall take its effect
     immediately.[Para 12][42-G, H; 43-A-C]
            2. Section 58 and 59 of Juvenile Justice (Care and
     Protection of Children) Act, 2015 provides for two different
     mechanisms for adoption. As per Section 59(1), if an orphan or
F    abandoned or surrendered child could not be placed with an Indian
     or non-resident Indian prospective adoptive parents despite the
     joint effort of the Specialised Adoption Agency and State Agency
     within sixty days from the date the child has been declared legally
     free for adoption, such child shall be free for inter-country adoption.
G    Thus, sixty days period has to be elapsed from the date when the
     child has been declared legally free for adoption. In the present
     case, child was declared free for adoption on 14.12.2017 by Child
     Welfare Committee, Patna, Bihar. Before expiry of sixty days,
     child could not have been offered for adoption to parents, who
     are eligible for adoption under Section 59. This Court is, however,
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                     UOI v. ANKUR GUPTA                                33


not oblivious to the fact that respondent Nos.1 and 2 had been         A
bonafide pursuing their applications for adoption, initially as
resident Indians and thereafter even as overseas citizens of India.
As per Section 57, both the respondent Nos.1 and 2 are fully
eligible and competent to adopt the child. It was under the
circumstances as noticed above that the child ‘S’ was offered to
                                                                       B
respondent Nos.1 and 2, who rightly communicated their
acceptance and communicated with the child and are willing to
take child in adoption and to take all care and provide good
education to her. There is no doubt in the bonafide or the
competence of respondent Nos.1 and 2 in their effort to take the
child in adoption, but the statutory procedure and the statutory       C
regime, which is prevalent as on date and is equally applicable to
all aspirants, i.e., Indian prospective adoptive parents and
prospective adoptive parents for inter-country adoption, cannot
be lost sight. However, by virtue of Section 59(2), the respondent
Nos.1 and 2 can at best may be given priority in inter-country
                                                                       D
adoption, they being eligible overseas citizens of India and further
due to consequences of events and facts as noticed above.
Therefore, the competent authority shall again notify the child
‘S’ legally free for adoption, which notification shall be issued.
That in event, within sixty days from the date the child ‘S’ is
declared as legally free for adoption is not taken by or adopted       E
by Indian prospective adoptive parents, the child ‘S’ shall be given
in adoption to the respondent Nos.1 and 2 in inter-country
adoption. All consequential steps thereafter shall be completed.
[Paras 15 and 16][44-G-H; 45-A-E, G, H; 46-A]
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2017-            F
2020 of 2019.
      From the Judgment and Order dated 04.09.2018 of the High
Court of Karnataka (Division Bench) in Writ Appeal No. 2259 of 2018
(GM-RES) & Writ Appeal No. 2675 of 2018 (GM-RES), a/w C.C.C.
Nos. 1690-1691 of 2018.                                                G
     Aman Lekhi, ASG, Ms. Priyanka Das, Ms. Shraddha Deshmukh,
Gurmeet Singh Makker, Advs. for the Appellants.
      Ms. Jayna Kothari, Sr. Adv., Ms. Anindita Pujari, Ms. Nitya
Rajshekar, Ms. Aarti Krupa Kumar, Advs. for the Respondents.
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34            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A          The Judgment of the Court was delivered by
           ASHOK BHUSHAN, J. 1. Leave granted.
           2. The contesting respondent Nos. 1 and 2 having appeared through
     caveat, we have heard counsel for the parties and proceed to decide the
     matter finally.
B
            3. Union of India and Central Adoption and Resources Agency,
     Ministry of Women & Child Development is in appeal questioning the
     Division Bench judgment dated 04.09.2018 in Writ Appeal No. 2259 of
     2018 and Writ Appeal No.2675 of 2018. Two other appeals have been
     filed by two other appellants questioning a common order dated 04.09.2018
C    passed by the High Court in C.C.C. No. 1690 of 2018 and C.C.C. No.
     1691 of 2018.
           4. We first take the Civil Appeal filed against the Division Bench
     judgment in Writ Appeal No.2259 of 2018 and Writ Appeal No.2675 of
     2018. The brief facts giving rise to the appeal as has been noted by the
D    Division Bench of the High Court are to the following effect:-
           4.1 That after completing his studies from the Indian Institute of
              Technology and India Institute of Management, Ahmedabad,
              in the year 2000, Mr. Ankur Gupta, the respondent No.1
              migrated to United State of America (USA for short). In 2004,
E             Ms. Geetika Agarwal, the respondent No.2 went to USA for
              her Ph.D. During their stay in USA in June, 2006, the respondent
              Nos. 1 and 2 got married. They stayed in USA for a decade.
              They returned to India in 2016. While staying in USA, the
              respondent No.2 became an American Citizen; the respondent
F             No.1 applied for American citizenship. However, till 2016, when
              the couple returned to India, the respondent No.1 was not given
              the American Citizenship. Moreover, even after ten years of
              marriage, the couple was not blessed with any children.
              Therefore, upon their return to India, they eventually planned
              to adopt an Indian child.
G
           4.2 The respondent Nos.1 and 2 submitted an Application on
              19.07.2016 through Central Adoption Resource Information and
              Guidance System (CARINGS) to adopt a child as Indian
              Prospective Adoptive Parents. Just before submitting the
              application for adoption respondent No.2 had acquired the
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                UOI v. ANKUR GUPTA                                      35
                [ASHOK BHUSHAN, J.]

   citizenship of USA on 19.05.2016 which had been declared as          A
   such in application submitted on 19.07.2016.
4.3 According to the Guideline, 2015, a Home Study Report has
   to be prepared by a Specialized Adoption Agency in order to
   coordinate the efforts of a ‘Prospective adoptive parents’ to
   adopt a child. On 01.08.2016, Shishu Mandir Agency, a                B
   registered Specialized Adoption Agency, filed its Home Study
   Report. Thereafter, the respondents were in queue awaiting
   referral of a child for adoption. On 05.12.2016, during the time
   they were waiting for referral of a child for adoption, the
   respondent No.1 was granted the U.S. Citizenship on
   05.12.2016.                                                          C

4.4 According to the respondents, on the basis of the advice received
    by them, they informed CARA, the appellant No.2 about the
    change in citizenship status of respondent No.1. Moreover, on
    05.11.2017, the couple registered themselves as Overseas
    Citizens of India (OCI) residing in India. The said registration    D
    was made under the Adoption Regulations, 2017 (Regulations,
    2017, for short), which was notified on 4th January 2017 in
    supersession of the Guidelines Governing Adoption of Children,
    2015.
4.5 Since the respondents had informed the Specialised Adoption         E
   Agency about the change in their citizenship status, the
   Specialized Agency informed the appellant No.2, through e-
   mail dated 05.12.2017, about the change of citizenship status
   of the respondents. The Specialised Adoption Agency referred
   to the respondents’ second registration, namely,                     F
   CUSA201771205. On behalf of the respondents, the
   Specialised Adoption Agency requested the appellants that the
   respondent’s seniority for adoption of a child should be continued
   on the basis of the first registration.
4.6 By e-mail dated 06.12.2017, the appellant No.2 informed the         G
   Specialised Adoption Agency that the request for continuing
   the seniority of the couple would be considered with the
   approval of the competent authority. However, the eligibility of
   the couple for adoption would be in the category of “OCI living
   in India”.
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36      SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A    4.7 On 01.01.2018, Baby Shomya (born on 30.09.2017) was
        referred by the respondent No.3 for adoption by the respondent
        Nos. 1 & 2. The respondent Nos. 1 & 2 accepted the referral
        on 02.01.2018. The respondent Nos. 1 & 2 visited Baby Shomya,
        who was with the respondent No.3 at Patna. Therefore, on
        04.01.2018, the respondent Nos.1 & 2 wrote to the CEO of
B
        the appellant No.2 requesting for continual of the reference of
        Baby Shomya for adoption. The respondent Nos.1 & 2, who
        apprehended that the referral of Baby Shomya for adoption
        would expire on 18.01.2018, repeatedly corresponded with the
        appellants as a follow-up for completing the adoption of Baby
C       Shomya. Again, in the month of March 2018, the respondent
        nos. 1 & 2 visited Baby Shomya. During this visit, they were
        informed that in a High-Level Committee Meeting on
        27.02.2018, their request for permission to continue the first
        application dated 19.07.2016, as Indians living in India
        Prospective Adoptive Parents, was declared as invalid, because
D
        the respondent No.1 had also been given US citizenship. They
        were further informed that they will, instead, have to wait for
        a referral of another child as ‘Overseas Citizen of India’.
     4.8 Therefore, the respondent Nos. 1 and 2 filed writ petition,
        namely, W.P. Nos. 12427-428 of 2018, impugning the aforesaid
E       decision, which was communicated to them over an e-mail
        dated 15.03.2018. The Writ Court allowed the writ petitions by
        order dated 19.06.2018. The writ Court quashed the aforesaid
        decision communicated vide the e-mail dated 15.03.2018.
        Further, the High Court directed the appellants to consider and
F       examine the request of the respondent Nos.1 & 2 on the basis
        of their first application dated 19.07.2016 expeditiously, but
        within 15 days from the date of receipt of this order.
     4.9 The learned Single Judge vide its judgment and order dated
        19.06.2018 allowed the writ petitions by passing following
G       order:-
                               “ORDER
        (1) Writ petitions are hereby allowed.
        (2) Communication dated 15.03.2018-Annexure-Z is hereby
           quashed.
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                UOI v. ANKUR GUPTA                                      37
                [ASHOK BHUSHAN, J.]

   (3) Writ of mandamus is issued to respondents to consider and        A
       examine the application submitted by petitioners on the
       strength and basis of the application dated 19.07.2016 –
       Annexure-A/Annexure-R-2 expeditiously, at any rate, within
       15 days from the date of receipt of this order, by keeping in
       mind the observations made herein above. “
                                                                        B
4.10 Union of India and Central Adoption Resources Agency,
   Ministry of Women & Child Development filed Writ Appeal
   No. 2259 of 2018 and Writ Appeal No. 2675 of 2018 against
   the judgment. Two Contempt Applications being C.C.C. Nos.
   1690-1691 of 2018 were also filed by respondent Nos. 1 and 2,
   which were also considered and decided by Division Bench of          C
   High Court vide its judgment dated 04.09.2018. The Division
   Bench of the High Court vide its judgment dated 04.09.2018
   dismissed the writ appeals. The Division Bench affirmed the
   order of the learned Single Judge. While dismissing the writ
   appeals, the contempt petitions were also closed. It is useful       D
   to extract paragraph Nos. 30 and 31 of the judgment, which is
   relevant for the present case:-
     “30. For the aforesaid reasons, this Court is of the considered
     opinion that the Writ Court has rightly concluded that the
     appellants were not justified in denying the benefit of referral   E
     of the child, Baby Shomya, for adoption by the respondent
     Nos.1 and 2, and that no grounds are made out for
     interference with the exercise of extraordinary jurisdiction
     by the Writ Court under Article 226 of the Constitution of
     India in the peculiar facts and circumstances that congeal
     into exceptional circumstances. Therefore, the Writ appeal         F
     is rejected and consequentially, the pending applications are
     also disposed of. The appellants are directed to implement
     the directions of the Writ Court within a period of four weeks
     from the date of receipt of the certified copy of this order.
     31. In view of the dismissal of the writ appeal, and the further   G
     direction to the appellants to implement the directions of the
     Writ Court within the further period as stated above, the
     contempt proceeding is closed.”

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38             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A           4.11 The appellants aggrieved by the said judgment have filed
               these appeals.
            5. Shri Aman Lekhi, learned ASG appearing for the appellants
     submits that High Court, both learned Single Judge and Division Bench
     erred in not correctly construing the provisions of Sections 57, 58 and 59
B    of the Juvenile Justice (Care and Protection of Children) Act, 2015 as
     well as the Adoption Regulations, 2017. It is submitted that the respondent
     No.1 after submitting first application on 19.07.2016 for in country
     adoption having acquired US citizenship on 06.12.2016 went outside the
     zone of in country adoption. It is submitted that the second application
     was submitted by the respondents on 05.11.2017 for inter country adoption
C    but in that second application, the respondents have given their different
     identity and mobile numbers. It is submitted that the respondent having
     gone out of zone of consideration for in country adoption, their application
     cannot be directed to be considered on the basis of seniority for in country
     adoption. It is submitted that there are more than 22,000 parents waiting,
D    according to seniority, for in country adoption, respondents cannot stroll
     march over them. It is submitted that offer to adopt Shomya, which was
     sent on 01.01.2018 was on the basis of first application of the respondents
     and after the respondents informed in writing on 04.01.2018 about their
     second registration dated 05.11.2017, the communication was sent to
     the respondents that decision regarding their seniority will be taken by
E    the competent authority. The communication was sent on 15.03.2018 to
     the respondents that they cannot be given the benefit of their seniority
     on the basis of their first application and they have to wait for receiving
     an offer as overseas citizen of India. It is submitted that there were no
     special circumstances on the basis of which any exception can be made
F    in favour of the respondents as has been directed by the High Court.
            6. Learned counsel appearing for the respondents submits that
     the Act, 2015 and the Regulations, 2017 do not provide for any mechanism
     when Indian parents, who have already got themselves registered for
     adoption acquires the foreign citizenship. It is submitted that as per
G    Regulation 41 of the Regulations, 2017, a common seniority list is
     contemplated, which means that respondents shall retain their seniority
     position on the basis of first application. Thus, offer to adopt Shomya to
     the respondents cannot be faulted. It is submitted that respondent Nos.1
     and 2 being fully competent for applying for adoption, who are still qualified
     and economically stable and eager to adopt the child cannot be denied
H
                        UOI v. ANKUR GUPTA                                       39
                        [ASHOK BHUSHAN, J.]

their right merely because the respondent No.1 was conferred the US              A
citizenship on 06.12.2016, i.e., much after submission of their first
application as Indian parent.
       7. It is submitted that even though respondent Nos.1 and 2 have
been conferred US citizenship, both are residing in Bangalore, India and
in both the applications, their residence is shown as India, hence in peculiar   B
circumstances, they have rightly been offered child Shomya for adoption.
It is submitted that the respondent Nos. 1 and 2 bonafide has not
concealed any information and has bonafide submitted their application
on 05.11.2017 as Overseas Citizen of India and the fact that immediately
when they received offer for adoption of Shomya on 02.01.2018, on
04.01.2018, they sent an e-mail giving details of both the applications.         C
The respondents have been bonafide pursuing their claim for adoption,
they having not been blessed with a child even though after happy marital
life of more than ten years. It is submitted that the High Court has
rightly held that present case can be considered as an exceptional case
and without making it a precedent, the adoption in favour of the                 D
respondents be allowed to maintain.
      8. We have considered the submissions of the learned counsel for
the parties and have perused the records.
       9. The 2015 Act, Chapter VIII deals with adoption. Section 56
sub-section (1) provides that adoption shall be resorted to for ensuring         E
right to family for the orphan, abandoned and surrendered children, as
per the provisions of the Act, the rules made thereunder and the adoption
regulations framed by the authority. Section 57 deals with eligibility of
prospective adoptive parents, which is as follows:-
       57. Eligibility of prospective adoptive parents.—(1) The                  F
       prospective adoptive parents shall be physically fit, financially
       sound, mentally alert and highly motivated to adopt a child for
       providing a good upbringing to him.
       (2) In case of a couple, the consent of both the spouses for the
       adoption shall be required.                                               G
       (3) A single or divorced person can also adopt, subject to fulfilment
       of the criteria and in accordance with the provisions of adoption
       regulations framed by the Authority.

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40            SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A          (4) A single male is not eligible to adopt a girl child.
           (5) Any other criteria that may be specified in the adoption
           regulations framed by the Authority
            10. Section 58 deals with procedure for adoption by Indian
     prospective adoptive parents living in India, which is to the following
B    effect:-
           58. Procedure for adoption by Indian prospective adoptive
           parents living in India.—(1) Indian prospective adoptive parents
           living in India, irrespective of their religion, if interested to adopt
           an orphan or abandoned or surrendered child, may apply for the
C          same to a Specialised Adoption Agency, in the manner as provided
           in the adoption regulations framed by the Authority.
           (2) The Specialised Adoption Agency shall prepare the home study
           report of the prospective adoptive parents and upon finding them
           eligible, will refer a child declared legally free for adoption to them
D          along with the child study report and medical report of the child, in
           the manner as provided in the adoption regulations framed by the
           Authority.
           (3) On the receipt of the acceptance of the child from the
           prospective adoptive parents along with the child study report and
E          medical report of the child signed by such parents, the Specialised
           Adoption Agency shall give the child in pre-adoption foster care
           and file an application in the court for obtaining the adoption order,
           in the manner as provided in the adoption regulations framed by
           the Authority.
F          (4) On the receipt of a certified copy of the court order, the
           Specialised Adoption Agency shall send immediately the same to
           the prospective adoptive parents.
           (5) The progress and well-being of the child in the adoptive family
           shall be followed up and ascertained in the manner as provided in
G          the adoption regulations framed by the Authority.
           11. The next provision, which needs to be noticed is Section 59,
     which provides for procedure for inter-country adoption of an orphan or
     abandoned or surrendered child, which is as follows:-

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                 UOI v. ANKUR GUPTA                                       41
                 [ASHOK BHUSHAN, J.]

59. Procedure for inter-country adoption of an orphan or                  A
abandoned or surrendered child.—(1) If an orphan or
abandoned or surrendered child could not be placed with an Indian
or non-resident Indian prospective adoptive parent despite the joint
effort of the Specialised Adoption Agency and State Agency within
sixty days from the date the child has been declared legally free
                                                                          B
for adoption, such child shall be free for inter-country adoption:
Provided that children with physical and mental disability, siblings
and children above five years of age may be given preference
over other children for such inter-country adoption, in accordance
with the adoption regulations, as may be framed by the Authority.
                                                                          C
(2) An eligible non-resident Indian or overseas citizen of India or
persons of Indian origin shall be given priority in inter-country
adoption of Indian children.
(3) A non-resident Indian or overseas citizen of India, or person
of Indian origin or a foreigner, who are prospective adoptive             D
parents living abroad, irrespective of their religion, if interested to
adopt an orphan or abandoned or surrendered child from India,
may apply for the same to an authorised foreign adoption agency,
or Central Authority or a concerned Government department in
their country of habitual residence, as the case may be, in the
manner as provided in the adoption regulations framed by the              E
Authority.
(4) The authorised foreign adoption agency, or Central Authority,
or a concerned Government department, as the case may be,
shall prepare the home study report of such prospective adoptive
parents and upon finding them eligible, will sponsor their application    F
to Authority for adoption of a child from India, in the manner as
provided in the adoption regulations framed by the Authority.
(5) On the receipt of the application of such prospective adoptive
parents, the Authority shall examine and if it finds the applicants
suitable, then, it will refer the application to one of the Specialised   G
Adoption Agencies, where children legally free for adoption are
available.
(6) The Specialised Adoption Agency will match a child with such
prospective adoptive parents and send the child study report and
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42            SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A          medical report of the child to such parents, who in turn may accept
           the child and return the child study and medical report duly signed
           by them to the said agency.
           (7) On receipt of the acceptance of the child from the prospective
           adoptive parents, the Specialised Adoption Agency shall file an
B          application in the court for obtaining the adoption order, in the
           manner as provided in the adoption regulations framed by the
           Authority.
           (8) On the receipt of a certified copy of the court order, the
           specialised adoption agency shall send immediately the same to
C          Authority, State Agency and to the prospective adoptive parents,
           and obtain a passport for the child.
           (9) The Authority shall intimate about the adoption to the
           immigration authorities of India and the receiving country of the
           child.
D          (10) The prospective adoptive parents shall receive the child in
           person from the specialised adoption agency as soon as the
           passport and visa are issued to the child.
           (11) The authorised foreign adoption agency, or Central Authority,
           or the concerned Government department, as the case may be,
E          shall ensure the submission of progress reports about the child in
           the adoptive family and will be responsible for making alternative
           arrangement in the case of any disruption, in consultation with
           Authority and concerned Indian diplomatic mission, in the manner
           as provided in the adoption regulations framed by the Authority.
F          (12) A foreigner or a person of Indian origin or an overseas citizen
           of India, who has habitual residence in India, if interested to adopt
           a child from India, may apply to Authority for the same along with
           a no objection certificate from the diplomatic mission of his country
           in India, for further necessary actions as provided in the adoption
           regulations framed by the Authority
G
           12. The respondent Nos.1 and 2 submitted their application as
     prospective adoptive parents living in India. Although, on the date of
     submission of application, respondent No.2 was already a US citizen,
     the respondent No.1 being Indian citizen, the application was fully
     maintainable as per the provisions of Regulations and as per the guidelines
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                        UOI v. ANKUR GUPTA                                        43
                        [ASHOK BHUSHAN, J.]

applicable at the relevant time as Indian prospective adoptive parents.           A
Even Regulation 21(1) of Regulations, 2017 provides that if one of the
prospective adoptive parents is foreigner and other is an Indian, such
case shall be treated at par with Indians living in India. After the respondent
No.1 acquired the US citizenship on 06.12.2016 and OCI card was issued
to respondent No.1 on 27.04.2017, second application was submitted on
                                                                                  B
05.11.2017 by the respondents for inter-country adoption both having
become US citizens. In view of the fact that both had become US
citizens by 06.12.2016, they were not eligible for adoption as Indian
prospective adoptive parents living in India. Mere fact that Act or
Regulations does not provide for any mechanism to upload any further
information in first registration cannot alter the legal position and             C
consequences of acquiring the foreign citizenship by an Indian. The
consequences of obtaining US citizenship of respondent Nos.1 and 2
shall take its effect immediately.
     13. The submission of learned counsel for the respondents that
Regulation 41 deals with common seniority list also need to be noted.             D
Regulation 41 of the Regulations, 2017 is as follows:-
       41. Seniority of the prospective adoptive parents.- (1) The
       prospective adoptive parents shall be referred children on the basis
       of a single seniority list, which shall be maintained from the date
       of registration and other criteria as stipulated under these               E
       regulations.
       (2) The seniority of resident Indians shall be based on the date of
       online registration and submission of the documents, except for
       Home Study Report, in Child Adoption Resource Information and
       Guidance System.                                                           F
       (3) The seniority of Non Resident Indian or Overseas Citizen of
       India or foreign prospective adoptive parents shall be based on
       the date of online registration and submission of the requisite
       documents alongwith Home Study Report in Child Adoption
       Resource Information and Guidance System.                                  G
       (4) Prospective adoptive parents shall be allowed to change the
       State preference once within sixty days from the date of registration
       and in case they change the State preference after sixty days
       from the date of registration, they shall be placed at the bottom of
       the seniority list in the changed State.
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44             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A           (5) Seniority of prospective adoptive parents registered as single,
            but married later shall be counted from the date of registration as
            single after receipt of fresh Home Study Report.
            (6) Prospective adoptive parents registered for normal child, shall
            be able to adopt a special need child or hard to place child with
B           the same registration.
             14. It is also submitted that prior to Regulations, 2017, there were
     two separate seniority lists, which were maintained under the Guidelines,
     2015, which has been now made a single seniority list. Even if there is
     a single seniority list, now contemplated by Regulation 41, a placement
C    in the seniority list with regard to resident Indian and non-resident Indian
     or overseas citizen of India are based on different yardsticks as provided
     in Regulations 41(2) and 41(3). Even if the common seniority list has to
     be utilised for the purpose of in country adoption and inter-country
     adoption as per the respective categories, the difference between in
     country adoption and inter-country adoption cannot be lost sight or given
D    a go bye by the mere fact that a common seniority list is maintained. It
     is true that Regulation 41 or any other Regulation does not contemplate
     a situation when a resident Indian after acquiring the foreign citizenship
     submits a fresh registration, what is the consequence and value of its
     first registration. Even though regulations are silent and do not provide
E    for any mechanism or any answer to such fact situation, the natural
     consequences of acquiring foreign citizenship shall follow. We, thus,
     find force in the submission of the learned ASG that the right of respondent
     Nos. 1 and 2 for adoption as resident Indian is lost after respondent
     No.1 having acquired the US citizenship on 06.12.2016. Offer of the
     child to the respondent Nos. 1 and 2 was based on their first application
F    dated 19.07.2016, in which if the clause of foreign citizenship is ignored,
     was in accordance with the Act and the Rules. Further, whether the
     factum of respondent No.1 acquiring US citizenship on 06.12.2016 should
     be ignored for the purposes of adoption or not is the question, which is
     required to be addressed and answered in these appeals.
G           15. Section 58 and 59 provides for two different mechanisms for
     adoption. As per Section 59(1), if an orphan or abandoned or surrendered
     child could not be placed with an Indian or non-resident Indian prospective
     adoptive parents despite the joint effort of the Specialised Adoption Agency
     and State Agency within sixty days from the date the child has been
H    declared legally free for adoption, such child shall be free for inter-country
                       UOI v. ANKUR GUPTA                                        45
                       [ASHOK BHUSHAN, J.]

adoption. Thus, sixty days period has to be elapsed from the date when           A
the child has been declared legally free for adoption. In the present
case, child was declared free for adoption on 14.12.2017 by Child Welfare
Committee, Patna, Bihar. Before expiry of sixty days, child could not
have been offered for adoption to parents, who are eligible for adoption
under Section 59. We are, however, not oblivious to the fact that
                                                                                 B
respondent Nos.1 and 2 had been bonafide pursuing their applications
for adoption, initially as resident Indians and thereafter even as overseas
citizens of India. As per Section 57, both the respondent Nos.1 and 2
are fully eligible and competent to adopt the child. It was under the
circumstances as noticed above that the child Shomya was offered to
respondent Nos.1 and 2, who rightly communicated their acceptance                C
and communicated with the child and are willing to take child in adoption
and to take all care and provide good education to her. We have no
doubt in the bonafide or the competence of respondent Nos.1 and 2 in
their effort to take the child in adoption, but the statutory procedure and
the statutory regime, which is prevalent as on date and is equally applicable
                                                                                 D
to all aspirants, i.e., Indian prospective adoptive parents and prospective
adoptive parents for inter-country adoption, cannot be lost sight. However,
by virtue of Section 59(2), the respondent Nos.1 and 2 can at best may
be given priority in inter-country adoption, they being eligible overseas
citizens of India and further due to consequences of events and facts as
noticed above.                                                                   E
      16. In view of the foregoing discussions, we are of the view that
ends of justice be served in disposing the Civil Appeals arising out of
SLP (C) Nos. 1476-1477 of 2019 in following manner:
      (i) The decision dated 27.02.2018 as communicated to the
          respondent Nos. 1 and 2 by e-mail dated 15.03.2018 is upheld.          F

      (ii) Judgments of learned Single Judge as well as of Division Bench
           in so far as it directs to consider and examine the application
           of respondent Nos. 1 and 2 on the basis of first registration
           dated 19.07.2016 are set aside.
                                                                                 G
      (iii) The competent authority shall again notify the child Shomya
          legally free for adoption, which notification shall be issued within
          one week from today.
      (iv) That in event, within sixty days from the date the child
         (Shomya) is declared as legally free for adoption is not taken
                                                                                 H
46                SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A                 by or adopted by Indian prospective adoptive parents, the child
                  Shomya shall be given in adoption to the respondent Nos.1 and
                  2 in inter-country adoption. All consequential steps thereafter
                  shall be completed.
            17. Now, coming to Civil Appeals arising out of SLP (C) Nos.
B    1478-1479, these appeals have been filed against the order dated
     04.09.2018 passed in C.C.C. Nos. 1690-1691 of 2018, the contempt
     proceedings having been closed by the Division Bench by its impugned
     judgment dated 04.09.2018, nothing more is required to be said in that
     regard. We, however, observe that filing of the contempt applications in
     the fact situation of the present case was ill-advised. Both the contempt
C    applications deserve to be rejected. The appeals are allowed and
     contempt applications stand rejected. Parties shall bear their own costs.


     Ankit Gyan                                                  Matters disposed of.

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