Bombay HC Rejects Indian Couple’s Plea To Adopt US-Born Nephew, Says Juvenile Justice Act Doesn’t Apply

Mumbai: In a significant ruling on cross-border adoption, the Bombay High Court has refused to grant relief to an Indian couple seeking to adopt their nephew born in the United States, holding that the adoption cannot be processed under India’s Juvenile Justice (Care and Protection of Children) Act, 2015, as the child is a US citizen and not a “child in need of care and protection”.

A bench of Justices Revati Mohite-Dere and Neela Gokhale dismissed the plea by the couple, who are Indian citizens residing in India, seeking directions to the Central Adoption Resource Authority (CARA) to register them as prospective adoptive parents on its CARINGS portal and issue a pre-approval letter to adopt the minor boy.

The court refused to exercise its extraordinary jurisdiction to allow the adoption and said there is no “fundamental right” of the petitioners to adopt an American child and neither is there any violation of any fundamental right of the child of American nationality to be adopted by an Indian citizen.

The child was born in California on July 2, 2019, to the wife’s sister and brother-in-law, who are also Indian citizens but living in the US. The petitioners, unable to bear children, brought the child to India in October 2019 intending to adopt him through the Pune District Court under the JJ Act’s provisions for “relative” adoption.

However, CARA refused to register the couple, arguing that the JJ Act and the Adoption Regulations, 2022, do not provide for adoption of a foreign national child who does not fall into the categories of an orphan, abandoned, or surrendered child, or one in conflict with law.

The petitioners contended that since the child resides in India with them and they are Indian citizens, the adoption should be treated as an in-country adoption. They also highlighted the child’s growing vulnerability, citing concerns that his US passport may not be renewed without a valid adoption order, making his stay in India illegal.

But the court ruled that “Section 56(2) of the JJ Act cannot operate independent of the Act itself” and applies only when the child is first declared to be in need of care and protection. “Even if the present adoption is treated as in-country, it must conform to the applicability of the parent Act,” the bench noted.

“There is no provision in the Juvenile Justice 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’,” HC said.

CARA’s counsel submitted that the adoption can only be processed under US laws, or the child must acquire Indian citizenship. “There is no provision in the JJ Act or the Adoption Regulations providing for adoption of a foreign citizen by Indian relatives unless the child falls within the statutory categories,” the court said.

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