Introduction
Delhi High Court delivered a significant ruling regarding adoption law, clarifying that the right to adopt children does not constitute a fundamental right. This article examines the details of the judgment, exploring amendments to the Adoption Rules and their implications for prospective adoptive parents (PAPs).
Overview of the Judgment
In the landmark judgment titled Debarti Nandee vs Ms Tripti Gurha & Anr, the Delhi High Court upheld revisions to the Adoption Rules under the Juvenile Justice (Care and Protection of Children) Act, 2015. The Single Judge Bench, led by Hon’ble Mr. Justice Subramonium Prasad, noted, “The right to adopt cannot be raised to the status of a fundamental right within Article 21... The adoption process operates on the premise of the welfare of children, placing the rights of PAPs in a secondary position.”
The court addressed petitions from PAPs wishing to adopt a third child despite already having two biological children, ultimately dismissing these petitions and any pending applications.
Key Findings of the Judgment
- Nature of the Challenge: The judgment began with the court assessing whether the decision of the Steering Committee of the Central Adoption Resource Authority (CARA) to apply the Adoption Regulations, 2022 retrospectively to pending applications was valid.
- Petition Background:
- Eligibility: The petitioners were PAPs with two biological children seeking to adopt a third child through CARA, adhering to Regulation 5(8) of the prior Adoption Regulations, 2017.
- New Provisions: Under Regulation 5(7) of the Adoption Rules, 2022, couples with two or more children may only adopt special needs or hard-to-place children unless they are related or step-children.
- CARA Recommendations: The court noted that on February 15, 2023, CARA determined that the new regulations would apply retrospectively, barring parents with two children from adopting normal children. This decision was confirmed in an Office Memorandum dated March 21, 2023.
Court's Analysis
The court emphasized:
- Right to Adopt: In paragraph 42, it reiterated, “The right to adopt cannot be elevated to a fundamental right within Article 21... There can be no expectation at the pre-referral stage towards the adoption of a normal child.”
- Legitimate Expectations: As mentioned in paragraph 43, legitimate expectations arise from accrued rights. The court highlighted that without consistent past practices, the petitioners’ claims toward adoption lacked a legal basis.
- Impact on Seniority Lists: The Bench dismissed concerns over the potential loss of seniority in CARA's lists as irrelevant.
- Adoption of Children with Special Needs: The court recognized that childless couples are more likely to pursue adoption of normal children. Thus, the policy aims to increase the adoption of special needs children (paragraph 49).
Recent Amendments and Changes
Bombay High Court Exception for Unique Cases (April 2025)
In XYZ vs CARA (April 7, 2025), the Bombay High Court permitted a couple with two disabled biological children to adopt a third "normal" child, citing the "power to relax" clause within the 2022 regulations for exceptional circumstances.
CARA Portal Enhancements (2024–2025)
- Foster Care Module: CARA launched an online module to streamline foster care applications.
- Hague Convention Compliance: In March 2025, CARA represented India at a workshop in Manila aimed at aligning inter-country adoptions with Hague Convention standards.
District Magistrate Empowerment
Following the 2022 amendments, District Magistrates now have the authority to issue adoption orders under Section 61 of the JJ Act, accelerating the adoption process. Over 2,625 adoption orders were granted from September 2022 to July 2023.
The developments in adoption laws underscore the ongoing evolution of child welfare policies in India, emphasizing a balanced approach to the rights of PAPs and the welfare of children in need of homes.