Bombay High Court: In a case wherein, the petitioners having two biological children suffering from disabilities, wanted to adopt a third normal child, but their application was rejected, the Division Bench of G.S. Kulkarni and Advait M. Sethna, JJ. opined that in 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 to balance their life and to have an experience to raise a normal child, which they were missing. The Court opined that it could never be the intention of the statutory mandate that a couple which already had disabled children could be barred from adopting a normal child. The Court thus directed the respondents to reconsider the petitioners’ application in accordance with law and by applying the power of relaxation under Regulation 63 of the Adoption Regulations, 2022 (‘the 2022 Regulations’).
Background
The petitioners were Prospective Adoptive Parents (‘PAPs’) and had two daughters who suffered from disability. The first daughter was diagnosed with Nystagmus a few months after her birth, followed by a cyst in her brain and she was operated for the removal of the cyst, but the damage in the process was permanent, which caused her visual impairment. The younger daughter suffered from (i) no eye contact, (ii) hearing impairment, (iii) syndromic facial features and (iv) delayed milestones and so her case fell into Global Development Delay. Therefore, she was issued Unique Disability ID under the provisions of the Rights of Persons with Disabilities Act, 2016.
On 10-9-2022, the petitioners registered themselves as PAPs on the Child Adoption Resource Information and Guidance System (‘CARINGS’) portal of Respondent 1. When the application for adoption was made, the Adoption Regulations, 2017 (‘the 2017 Regulations’) were in force, but during the pendency of their adoption application, the 2022 Regulations were brought into force vide notification dated 23-9-2022. Thus, the 2022 Regulations were now made applicable by respondent in deciding the adoption applications. As per Regulation 5(7) of the 2022 Regulations, couples with two or more children should only be considered for ‘special needs child’ as specified in Regulation 2(25), and ‘hard to place child’ as stated in Regulation 2(13) unless they were relatives or stepchildren.
Respondent 1 issued an office memorandum dated 21-3-2023 providing that as PAPs already had two children, therefore, they would not be ineligible to adopt a normal child, effectively making the 2022 Regulations retrospectively applicable. On 17-9-2024, the petitioners made an application to the Relaxation Committee of Respondent 1, which was empowered to grant exemptions to any of the provisions of the 2022 Regulations, but the same was rejected and thus, the present petition was filed.
Counsel for the petitioners submitted that Respondent 1’s decision needs to be interfered with by this Court, as it did not take into consideration, the special circumstances of the petitioners’ case, that both their biological daughters were “children with disability”, hence, they intended to adopt a normal child. Thus, it was stated that Regulation 5(7) of the 2022 Regulations could not be applied in by a strait jacket
method and/or a mechanical computerized method, to reject the petitioners’ application, without considering the need to adopt a “normal child” which was certainly a legal right, as available to the petitioners prior to the 2022 Regulations , that is, under the 2017 Regulations read with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘the JJ Act’).
Analysis, Law, and Decision
The Court opined that the impugned order was not a reasoned order and the petitioners’ application deserved special consideration as their case was a special one with petitioners having two children with admitted disabilities.
The Court agreed with the petitioners’ contention that even if the 2022 Regulations were to be applied, the 2022 Regulations made 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, the Court opined that it was an obligation on Respondent 1’s part and its Steering Committee to be alive to such cases which invoked the legitimate applicability of Regulation 63.
The Court opined that the intention behind Regulation 63 was to remove the lacuna in dealing with cases which had special circumstances, or which warrant specific consideration or some relaxation of the 2022 Regulations, to make the procedure of adoption effective on case-to-case basis. The Court thus stated that such consideration of the petitioners’ application with appropriate application of mind was lacking in the rejection of the petitioners’ application.
The Court further opined that it was an obligation on the part of the officers concerned of Respondent 1 to provide appropriate reasons for their decision, and this should have been done after granting the petitioners an opportunity of being heard, so that the petitioners could explain their specific case.
The Court stated that even if there had to be some parity and 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.
The Court opined that it could never be the intention of the statutory mandate that a couple which already had disabled children could be barred from adopting a normal child. The 2022 Regulations were required to be read and applied, to forward the object and intention of Sections 56(1), 57 read with Section 58 of the JJ Act.
The Court opined that human life itself was a mixed bag, which had aspirations, expectations, and challenges. Feeling happiness and fulfillment were some of the key factors in one’s life and it was in such sheds of human life, deep fulfilling relationship/bonds with children contribute to have a meaningful life to derive satisfaction in the expectations such individual’s nurture. The Court opined that in 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 to balance their life and to have an experience to raise a normal child, which they were missing; while maintaining their love and devotion to the children suffering disability, who could never be neglected and would always be cared.
The Court thus opined that there was nothing wrong if they were 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.
The Court opined 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 by applying the power of relaxation under Regulation 63. The Court thus quashed and set aside the impugned communication rejecting the petitioners’ application for adopting a third child and held that the petitioners’ application was restored to file of the respondent, which should be decided after granting an opportunity of hearing to the petitioners.
[Bronson Barthol Dias v. Central Adoption Resource Authority, 2025 SCC OnLine Bom 1117, decided on 7-4-2025]
Advocates who appeared in this case :
For the Petitioner: Meenaz Kakalia, Gayatri Sathe i/b. Mulla & Mulla & CBC, for the Petitioners.
For the Respondents: A.I. Patel, Addl. GP, for the Respondent 4; Y.R. Mishra a/w Upendra Lokegaonkar, Sachidanand T. Singh, for Union of India.
