Sahil Gupta vs Union Of India And Anr.
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 30.09.2026
Judgment pronounced on: 15.10.2026
Judgment uploaded on: 16.10.2026
# CNR No. DLHC010154742026
+ W.P.(C) 4937/2026 & CM APPL. 24285/2026
SAHIL GUPTA .....Petitioner
Through: Ms. Tara Narula, Mr.
Harshvardhan Jain and Ms.
Gauri Ramachandran,
Advocates.
versus
UNION OF INDIA AND ANR ......Respondents
Through: Mr. Rajesh Kumar, SPC for
UOI with Mr. Yash Narain,
Ms. Pragya Nath, Mr. Sumit
Bhargava and Mr. Nimit
Kumar, Advocates for
respondent/CARA.
CORAM:
HON’BLE DR. JUSTICE SWARANA KANTA SHARMA
J U D G M E N T
Index to the Judgment
FACTUAL BACKGROUND ................................................................... 2
SUBMISSIONS BEFORE THE COURT .............................................. 9
ANALYSIS & FINDINGS .................................................................... 18
A. The Statutory Framework ........................................................................... 20
B. Whether the Petitioner was Eligible to be Considered for Adoption
of Baby K? .................................................................................................... 24
C. Whether the Referral of Baby K, and its Acceptance by the Petitioner,
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Creates any Vested Right in his favour? ......................................................... 31
D. The Best Interests of the Child vis-à-vis the Petitioner’s Claim for
Adoption ....................................................................................................... 38
E. Administrative Lapses and the Need for Institutional Safeguards ........ 42
F. Decision ......................................................................................................... 45
DR. SWARANA KANTA SHARMA, J.
1. The present writ petition has been preferred by the petitioner, a
prospective adoptive parent residing in Singapore, who assails the
action of respondent no. 2, the Central Adoption Resource Authority
[hereafter ‗ CARA ‘], whereby his application for inter-country
adoption was reflected on the Designated Portal as ― Application
Rejected – Withdrawn ‖ on 30.03.2026, resulting in the withdrawal of
the referral of a female child ‗Baby K‘, which had been made in his
favour and accepted by him on 23.01.2026. The petitioner has,
therefore, approached this Court seeking following reliefs:
―i. Issue a writ of Mandamus or any other appropriate writ,
Order or direction to Respondent No. 2 to restore the petitioner'
application dated 21.12.2020 on the portal and reinstate the
referral of the Baby K to the petitioner; and
ii. Issue a writ of Mandamus or any other appropriate writ,
Order or direction to Respondent No. 2 to issue the No
Objection Certificate forthwith; or/and
iii. Pass any such further Order as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
instant case and / or in the interest of justice.‖
FACTUAL BACKGROUND
2. Briefly stated, the facts of the case, as discernible from the
record, are that the petitioner and his spouse were born and brought
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up in India and have, over the years, settled in Singapore, where they
presently reside. They got married in the year 2015 and were blessed
with their first son in the year 2018. On 21.12.2020, the petitioner
and his spouse registered themselves as Prospective Adoptive Parents
[hereafter ‗ PAPs ‘] for inter-country adoption on the then Designated
Portal, i.e. the Child Adoption Resource Information and Guidance
System [hereafter ‗ CARINGS ‘], under the Non-Resident Indian
category, through the High Commission of India in Singapore. Since
Singapore is not a signatory to the Hague Adoption Convention,
1993, the Indian Diplomatic Mission in Singapore [hereafter ‗ IDM,
Singapore ‘] was to facilitate their adoption process, including the
conduct and uploading of their Home Study Report [hereafter
‗ HSR ‘]. At the time of registration, the petitioner and his spouse had
one biological child, and their HSR, prepared after a home visit on
17.12.2020, recorded their preference for adoption of a healthy girl
child in the age group of 0 to 2 years.
3. On 17.03.2022, the petitioner and his spouse were blessed with
their second biological son. Thereafter, on 23.09.2022, the Adoption
Regulations, 2022 [hereafter ‗ 2022 Regulations ‘] came into force,
superseding the Adoption Regulations, 2017 [hereafter ‗ 2017
Regulations ‘]. Regulation 5(7) of the 2022 Regulations, in a
departure from Regulation 5(8) of the 2017 Regulations which had
placed the restriction upon couples with three or more children,
provided that couples with two or more children shall only be
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considered for special needs children and hard to place children,
unless they are relatives or step-children.
4. The HSR of the petitioner, which had been prepared in
December 2020, was valid for a period of three years in terms of
Regulation 5(8) of the 2022 Regulations, and thus expired in
December 2023. It is not in dispute that the petitioner did not seek
revalidation of the same till the year 2025. The revalidated HSR of
the petitioner was prepared after a home visit on 06.09.2025 by a
social worker engaged through the IDM, Singapore, was
countersigned by the First Secretary, High Commission of India,
Singapore on 23.09.2025, and was uploaded on the portal on
14.10.2025. The relevant portion of the said revalidated HSR, which
has been placed on record by CARA as Annexure R-2, reads as
under:
―I visited the aforementioned PAP on 06/09/2025. The PAP's
have been wanting to adopt a child and are looking forward to
welcome a child. They are happy to adopt a single girl child of
age 2-4. The couple have 2 biological sons of age 7 & 3. The
children are also excited to have another sibling. Their
preference in the system remains the same Single Girl, 2-4, All
of India. Presently they are residing in a fully furnished 5 BHK
house…‖
(Emphasis supplied)
5. The case of the petitioner is that the revalidated HSR was not
reflected on the portal on account of technical glitches, and despite
repeated e-mails to the helpdesk of CARA, no response was received.
The petitioner, therefore, raised a grievance on 08.12.2025 on the
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Centralised Public Grievance Redress and Monitoring System, in
response to which CARA, on 02.01.2026, informed him as under:
―…it is informed that the matter has been examined. The re-
validation of your application is approved and under active
consideration for child referral. Updated information shall be
relayed to you accordingly.‖
6. In the meantime, Baby K, who was born on 03.11.2025 and
was abandoned at birth, had been admitted in a Government
Specialised Adoption Agency [hereafter ‗ SAA ‘] in the State of
Rajasthan on 03.12.2025, after having remained in a Government
hospital from the date of her birth till 03.12.2025. Her Medical
Examination Report dated 16.01.2026 [hereafter ‗ MER ‘] recorded
her birth weight as 2.215 kg and a history of respiratory distress
syndrome with septicaemia at birth, and classified her health status as
‗ Normal ‘.
7. On 22.01.2026, when the petitioner contacted the technical
support team of CARA for updation of his profile, he was informed
that a referral had already been generated in his favour on
21.01.2026. However, neither the petitioner nor the IDM, Singapore
could view the said referral on the portal. On the grievance raised by
the petitioner, the Assistant Director (Inter-Country Programme),
CARA, vide e-mail dated 22.01.2026, informed him as under:
―Your grievance has been taken up and forwarded to the
technical team for resolution. Please wait. It will be resolved by
today. But in rare case, if it is not resolved we will maintain
your seniority and one referral will be managed.‖
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8. Upon the issue being escalated, the referral of Baby K was
made visible to the petitioner. On 23.01.2026, the petitioner reserved
the child, and the signed Child Study Report and MER were
uploaded on the portal on the same day, as confirmed by the IDM,
Singapore vide e-mail dated 23.01.2026.
9. It is the case of the petitioner that, thereafter, during February
and March 2026, the petitioner and the IDM, Singapore, uploaded,
and repeatedly re-submitted, the documents required for issuance of
the No Objection Certificate [hereafter ‗ NOC ‘], including the power
of attorney, family photographs, birth certificates of both the
biological children, the consent letter of the elder son and the new
passport of the petitioner, since several of these documents were not
visible to the concerned team of CARA on the portal. The grievances
raised by the petitioner during this period elicited responses from
CARA to the effect that – ― the NOC of the child is under active
consideration for approval at multiple levels ‖ (13.02.2026 and
18.02.2026), that the case of NOC ― is under review… as per
Adoption Regulation 2022 ‖ (27.02.2026 and 06.03.2026), and that
― your request is currently under process for NOC ‖ (23.03.2026). In
the meantime, the petitioner travelled to India and visited Baby K at
the SAA on 27-28.02.2026, spent time with her, and also handed over
the original documents to the SAA. The family of the petitioner also
remained in touch with the child through video calls. It is further
stated that on 23/24.03.2026, the SAA informed the petitioner that
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CARA had sought its address for dispatch of the physical copy of the
NOC.
10. According to the petitioner, on the morning of 30.03.2026, the
helpline of CARA informed him that the NOC would be issued on
the same day or within one or two days. However, in the afternoon of
the same day, the petitioner was unable to log into the portal, and the
status of his application was shown as ― Application Rejected –
Withdrawn ‖, though neither the petitioner nor the IDM, Singapore
had ever withdrawn the application. The IDM, Singapore raised a
grievance on the same day, since it could no longer view the
application of the petitioner. On 30.03.2026, the petitioner also raised
the issue in a live interactive session conducted by CARA on
YouTube, in which, according to the petitioner, the Member
Secretary and Chief Executive Officer of CARA observed that a
rejection at such a late stage could only be a misunderstanding or a
technical glitch. In response to the grievance of the petitioner dated
31.03.2026, CARA, on 01.04.2026, merely informed him that ― as per
the PAP profile…, the application has currently been rejected ‖. On
01.04.2026 itself, the petitioner was informed by the SAA that Baby
K had been moved to the queue of children legally free for adoption
and had been referred to another family.
11. On 02.04.2026, the petitioner met the Member Secretary and
Chief Executive Officer of CARA in person and, by an e-mail of the
same date, requested that the referral of Baby K be kept on hold
pending examination of his case. On the same date, i.e. 02.04.2026,
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CARA addressed the following communication to the IDM,
Singapore which has been placed on record as Annexure R-3:
―…The matter was reviewed at the level of issuance of No
Objection Certificate (NOC). It was observed that at the time
of registration on the portal dated 21.12.2020, the prospective
adoptive parents had declared one biological child. However,
as per the re-validation of their Home Study Report (HSR)
dated 06/09/2025, it has been confirmed that currently they
have two biological sons, aged 7 and 3 years.
In view of two biological children of PAPs, attention is invited
to the Regulation 5(7) of Adoption Regulations, 2022 which
provided that prospective adoptive parents who already have
two children are not eligible to adopt a normal child.
As per the Regulation 5(7) of Adoption Regulations, couples
with two or more children shall only be considered for special
needs children as specified in clause (25) of regulation 2, and
hard to place children as stated in clause (13) of regulation 2
unless they are relatives or step-children. Accordingly, the
same may be informed to the PAPs and CARA may be
apprised of the decision of PAPs regarding adoption of a child
with special needs. In view of above, the adoption case of
child [Baby K]… for PAPs Mr. Sahil Gupta and Ms.
Paulami Khan… was not considered on the portal.
This issues with the approval of Competent Authority.‖
(Emphasis supplied)
12. The petitioner also approached various other authorities,
including the National Human Rights Commission, which, on
10.04.2026, took cognizance of his complaint and called for an action
taken report from the Secretary, Ministry of Women and Child
Development.
13. Aggrieved by the aforesaid action of CARA, the petitioner
filed the present writ petition on 12.04.2026.
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14. On 13.04.2026, notice was issued in the present petition, and it
was directed that status quo be maintained with respect to the child,
i.e. Baby K, who was referred to the petitioner on 23.01.2026. The
said interim order has continued since then. CARA filed its counter
affidavit, to which the petitioner filed his rejoinder. Vide order dated
06.07.2026, this Court had also directed that the medical examination
of the child be conducted and the report thereof be placed before this
Court. On 31.08.2026, a report in a sealed cover was handed over to
this Court, which was taken on record. Both the parties have also
placed on record their written submissions.
SUBMISSIONS BEFORE THE COURT
15. The learned counsel appearing for the petitione r argues that
Sections 57 and 59 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 [hereafter ‗ JJ Act ‘], read with Regulations 5, 16
and 17 of the 2022 Regulations, prescribe a structured procedure for
inter-country adoption, under which the eligibility and suitability of
PAPs are required to be scrutinised before a child is referred to them.
It is submitted that Regulation 5 lays down the eligibility criteria for
PAPs, including the specific restriction under sub-regulation (7) in
respect of couples having two or more children, while Regulation
16(5) expressly mandates CARA to scrutinise the HSR and other
documents of the PAPs to determine their eligibility and suitability. It
is contended that only after such scrutiny does the process of referral,
reservation and acceptance of a child commence, in accordance with
the timelines prescribed under Regulations 16 and Schedule XIV of
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the 2022 Regulations. The learned counsel further submits that
Regulation 17(1) mandates issuance of the NOC within ten days of
receipt of the acceptance of the child and the requisite approval of the
receiving country, as reflected in Schedule X. According to the
petitioner, the statutory scheme places the responsibility of verifying
eligibility upon CARA at the stage of scrutiny preceding referral, and
once the HSR and accompanying documents have been examined
and the referral accepted, CARA cannot reopen the question of
eligibility at the NOC stage on the basis of facts which were already
disclosed in the record and available to it. It is, therefore, argued that
having approved the petitioner‘s revalidated HSR and referred Baby
K to him, despite the HSR expressly recording that the petitioner and
his spouse had two biological children, CARA could not
subsequently withhold the NOC on the very same ground,
particularly when Regulation 17 prescribes a specific timeline for its
issuance.
16. It is further argued on behalf of the petitioner that Regulations
10 and 16 of the 2022 Regulations contemplate a detailed scrutiny of
the PAPs, including their social, financial, medical and family
background, before their eligibility and suitability are determined by
CARA under Regulation 16(5). It is submitted that the HSR, once
prepared after the requisite enquiry and uploaded on the Designated
Portal, remains valid for a period of three years, subject to
revalidation, and that the subsequent stages of referral, reservation
and acceptance are structured to minimise uncertainty once a child
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has been matched with prospective adoptive parents. It is contended
that while the Regulations permit further scrutiny in respect of
matters requiring verification at subsequent stages, they do not
authorise CARA to retrospectively nullify a referral, which has
already been accepted, on the basis of facts concerning the eligibility
of the PAPs that were fully disclosed in the HSR and were available
to CARA at the time of scrutiny and revalidation. It is submitted that
Regulation 44, read with the timelines prescribed under Schedule
XIV of the 2022 Regulations, is intended to ensure certainty and
stability in the adoption process, particularly after a child has been
reserved and accepted.
17. The learned counsel for the petitioner further contends that
Regulation 17(1), by employing the expression ‗ shall issue ‘,
mandates CARA to issue the NOC within ten days of receipt of the
acceptance of the child and the requisite documents. In the present
case, the petitioner accepted the referral on 23.01.2026, whereas the
adverse action was taken only on 30.03.2026, after a lapse of more
than two months, without any reasoned order or exceptional
circumstance being communicated to him during this period. It is
further submitted that even on the morning of 30.03.2026, the
helpline of CARA had assured the petitioner that the NOC was
imminent and would be issued either that day or within the next one
or two days, making the subsequent rejection of his application all
the more arbitrary and inexplicable. According to the petitioner, the
prescribed ten-day period is a substantive safeguard intended to
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prevent prolonged uncertainty for both the child and the prospective
adoptive parents, and CARA's failure to adhere to the same, without
adequate justification, cannot be countenanced.
18. It is further argued that the petitioner never concealed any fact
from CARA, and that the petitioner, being conscious of the 2022
Regulations, had always been ready and willing to adopt a child with
special needs. It is submitted that the petitioner did not seek
revalidation of his HSR earlier since the family had a young child
and was not ready at that stage, and that even thereafter, the
petitioner had much lesser time on account of the technical glitches
on the portal. It is contended that the petitioner is not, per se , barred
from adoption, and that a reading of the definition of ‗hard to place
children‘ in Regulation 2(13) of the 2022 Regulations would show
that even a child of the normal health category may fall within the
said category; therefore, the petitioner is not barred from adopting
every child of the normal health category. It is also contended that
any attempt by CARA to argue that placement of Baby K with the
petitioner would not be in conformity with the principle of placing a
child in her own socio-cultural environment has no basis, since the
petitioner and his spouse are of Indian origin.
19. The learned counsel argues that the constant communications
from CARA to the effect that the application of the petitioner was
approved and was under active consideration, and thereafter that the
NOC was under process, cannot be brushed aside as technical
glitches. Reference is made to paragraphs 25 to 27 of the counter
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affidavit filed by CARA to argue that CARA has itself admitted that
the revalidated HSR was approved and the referral was generated in
favour of the petitioner, and that the oversight, if any, was entirely
that of CARA. It is submitted that the petitioner had accepted the
referral within a few hours of its becoming visible; that the petitioner
had personally travelled to India in February 2026 to meet the child;
that the family, including the elder son of the petitioner, who has
even written a letter for his sister, has continued to remain in touch
with the child; that the family has moved to a five-bedroom house;
and that the family has an annual income of about ₹3 crores and is
capable of providing the best possible care to the child. It is therefore
argued that the best interests of Baby K, which constitute the
paramount consideration under Section 2(9) of the JJ Act, must guide
the decision in the present case. The learned counsel further submits
that Baby K, who had suffered from respiratory distress syndrome
and septicaemia at birth, had been accepted by the petitioner and his
spouse, who were ready to provide her with a stable and loving
home. According to the petitioner, the abrupt withdrawal of the
referral, attributable entirely to CARA‘s administrative and technical
lapses, disrupted the prospect of a family placement and prolonged
the child‘s stay in institutional care. It is, therefore, contended that
the adoption process exists to secure a permanent family for a child,
and that administrative errors ought not to defeat the child‘s welfare,
particularly where a family has already come forward to welcome
and care for her.
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20. It is further argued, with reference to the format of the Medical
Examination Report provided in Schedule III of the 2022
Regulations, that children with a history of perinatal adverse events,
such as respiratory distress syndrome and neonatal sepsis, have been
categorised as ‗high risk infants‘ who require detailed neuro
developmental evaluation; that in case of a child below one year of
age, the special needs, if any, are to be reported by a pediatrician; and
that Baby K, being a premature child with a history of respiratory
distress syndrome and septicaemia at birth, low hemoglobin and
thalassaemia trait, cannot be said to be a ‗normal‘ child in the true
sense, and her status as a ‗normal‘ or ‗special needs‘ child is not
fixed. It is submitted that the petitioner was, and even today remains,
ready to take the child home, irrespective of her health status.
21. In the rejoinder and the written submissions, it has also been
contended on behalf of the petitioner that the conduct of CARA gave
rise to a legitimate expectation in favour of the petitioner, that CARA
is estopped from resiling from its representations, and reliance in this
regard is placed on several decisions of the Hon‘ble Supreme Court.
It is also argued that the status of the application of the petitioner was
changed without any notice or opportunity of hearing, in violation of
the principles of natural justice, and that the reason recorded, i.e.
‗ withdrawn ‘, was factually incorrect. It is lastly contended that the
best interest of the child lies in continuity of the bond which had
developed between her and the family of the petitioner, and
correction of the error of CARA by restoring the referral would better
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serve her interest than placing her with another family. It is therefore
prayed that the present petition be allowed.
22. Conversely, the respondent no. 2/ CARA, in its counter
affidavit and written submissions placed on record, has contended
that the HSR of the petitioner had expired in December 2023 in terms
of Regulation 5(8) of the 2022 Regulations, and the petitioner sought
revalidation only in the year 2025, nearly three years after the birth of
his second child; therefore, his case was necessarily to be scrutinised
on the basis of the facts and the regulations prevailing in the year
2025. It is stated that the Designated Portal was undergoing migration
from CARINGS to the Mission Vatsalya Portal from September
2025, during which technical inconsistencies arose in the reflection
of updated particulars; that the referral process is system-driven at the
preliminary stage; and that at the stage of initial scrutiny, the fact that
the petitioner had two biological children ‗ was inadvertently missed
due to an oversight ‘, which led to the approval of the revalidated
HSR and contributed to the referral of the child to the petitioner. It is
contended that the adoption process is subject to multi-tier scrutiny,
and the stage of issuance of NOC is a substantive and independent
level of scrutiny, the very purpose of which is to identify and rectify
any such inadvertent error or incorrect referral before final approval.
It is stated that upon such scrutiny, the petitioner was found ineligible
under Regulation 5(7), and thus, the NOC was rejected on
30.03.2026, which, as per the system architecture of the portal,
resulted in automatic closure of the profile of the PAPs. It is stated
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that IDM, Singapore was informed of the decision on 02.04.2026,
along with the reasons, and was also informed that the petitioner
remained eligible for adoption of children with special needs and
children in the immediate placement category. It is also stated that
the profile of the petitioner has since been revived and updated, and
is presently active for the categories permissible under the 2022
Regulations.
23. It has also been contended on behalf of CARA that the
revalidated HSR recorded the preference of the petitioner for a girl
child in the age group of 2 to 4 years, whereas the child referred was
an infant, and the petitioner never pointed out this mismatch or his
own ineligibility. It is further contended that infants of such tender
age are not capable of forming stable attachments through limited
virtual interactions or isolated meetings, and that the adoption
framework is child-centric, intended to find a suitable family for a
child and not to secure a particular child for PAPs.
24. The learned Senior Panel Counsel appearing for the
respondents argues that the issue raised in the present petition is
squarely covered by the decision of a Coordinate Bench of this Court
in Debarati Nandee v. Union of India: 2024 SCC OnLine Del 1075 ,
wherein the challenge to the application of Regulation 5(7) of the
2022 Regulations to PAPs who had registered under the 2017
Regulations was rejected, and it was held that no vested right accrues
to PAPs till the final adoption order is passed. Reliance is placed on
paragraphs 2, 2.1, 25, 35, 42 and 43 of the said decision. It is
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submitted that though the said decision is under challenge, there is no
stay of its operation, and the same is binding upon this Court in view
of the principles of judicial discipline explained by the Hon‘ble
Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra :
(2014) 16 SCC 623 .
25. It is further argued on behalf of CARA that the legislature, in
its wisdom, has progressively tightened the restriction on adoption of
a normal child by PAPs having biological children, i.e. from couples
with more than four children under the framework of the year 2015,
to couples with three or more children under the 2017 Regulations,
and further to couples with two or more children under the 2022
Regulations, and that the legislative intent behind such reduction has
to be given effect to. It is submitted that on one hand, there are PAPs
who are ineligible to adopt a normal child, and on the other, there are
about 27,000 PAPs who are waiting for a child, of whom about 87%
are childless couples. It is argued that mere progression in the process
of adoption, on account of an error, cannot confer any right upon the
petitioner to adopt a particular child, contrary to the statutory
mandate.
26. It is further contended by the learned counsel appearing for the
respondents, that in terms of Regulation 3 of the 2022 Regulations,
the best interest of the child is the paramount consideration, and
preference is to be given to placement of the child with Indian
citizens, in her own socio-cultural environment, as far as possible. It
is also submitted that the cost of medical treatment in Singapore is
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very high, which is also a relevant consideration from the perspective
of the child. It is contended that no right accrues in favour of PAPs
unless and until the District Magistrate passes an order of adoption,
since all the stages of the process are subject to statutory scrutiny,
and the District Magistrate, being the final authority, can decline the
adoption even at the final stage, if it is found that any statutory
requirement has been overlooked by any authority. It is therefore
prayed that the present petition be dismissed.
27. In rebuttal , the learned counsel for the petitioner submits that
the PAPs to whom Baby K was subsequently referred also have a
biological child, and that Baby K, prior to her referral to the
petitioner, had been referred to and not accepted by other PAPs. It is
also contended that the decision in Debarati Nandee ( supra ) was
rendered in the context of PAPs who were at the pre-referral stage,
whereas in the present case, the referral had already been made and
accepted; therefore, the said decision has no application to the facts
of the present case.
28. This Court has heard arguments addressed by the learned
counsels appearing for either side and has perused the material
available on record, including the written submissions filed by the
parties.
ANALYSIS & FINDINGS
29. The present case brings before this Court a situation where the
law, and the emotions of a family which had begun to see a child as
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its own, appear to pull in different directions. On one hand, there is a
family which, after waiting for over five years, was referred a child
by the statutory authority, which accepted her within hours, travelled
across the seas to hold her, and began preparing for her homecoming.
On the other hand, the statutory authority itself now relies on a
statutory regulation which provides that couples with two or more
children shall only be considered for adoption of ‗special needs‘ or
‗hard to place‘ children. This Court is thus conscious that the task
before it is to determine whether the law, as it stands, permits the
relief which the petitioner seeks, in the facts and circumstances of the
case.
30. Having considered the rival contentions, the issues which arise
for consideration before this Court can be set out as under:
(i) Whether the petitioner, admittedly having two biological
children, was eligible to be considered for adoption of Baby K
under the 2022 Regulations, and whether Baby K could be
treated as a ‗special needs child‘ or a ‗hard to place child‘?
(ii) Whether the referral of Baby K to the petitioner and its
acceptance by him, read with the doctrine of legitimate
expectation and the alleged lapses on the part of CARA,
including its failure to scrutinise the petitioner‘s eligibility
before referral and the delay in processing the NOC, confer
any enforceable right upon the petitioner to seek a writ of
mandamus directing CARA to issue the NOC or to restore the
referral?
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(iii) Whether the best interest of the child warrants the grant
of the reliefs sought?
(iv) Whether any guidelines/directions are required to be
issued to CARA to address the administrative lapses identified
in the present case?
A. The Statutory Framework
31. Before adverting to the issues, it would be apposite to take note
of the statutory framework governing adoption in our country.
Section 56(1) of the JJ Act provides that adoption shall be resorted to
for ensuring the right to family for orphan, abandoned and
surrendered children, as per the provisions of the Act, the rules made
thereunder and the adoption regulations framed by the Authority.
32. Section 57 of the JJ Act, which lays down the eligibility of
PAPs, reads as under:
― 57 . Eligibility of prospective adoptive parents.—(1) The
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.
(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.
(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. ‖
(Emphasis supplied)
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33. Section 59 of the JJ Act, which deals with inter-country
adoption of orphan, abandoned or surrendered children, insofar as
relevant, provides as under:
― 59 . Procedure for inter-country adoption of an orphan or
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 for adoption, such child shall be free for
inter-country adoption…
(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.
xxx
(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 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 Adoption Agencies, where children legally free
for adoption are available…‖
(Emphasis supplied)
34. Section 68 of the JJ Act, which lays down the functions of
CARA, entrusts it, inter alia , with the functions of regulating inter-
country adoptions and framing regulations on adoption and related
matters.
35. In exercise of these powers, CARA has framed the 2022
Regulations, which came into force on 23.09.2022. Regulation 3 of
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the 2022 Regulations lays down the fundamental principles
governing adoption, which include the following:
―(a) the child‘s best interests shall be of paramount
consideration, while processing any adoption placement;
(b) preference shall be given to place the child in adoption with
Indian citizens with due regard to the principle of placement of
the child in their own socio-cultural environment, as far as
possible;
(c) all applications for adoptions shall be registered on the
Designated Portal and confidentiality of the same shall be
maintained by the Authority.‖
36. Regulation 5 of the 2022 Regulations prescribes the eligibility
criteria for PAPs, and sub-regulations (7) and (8) thereof, which are
relevant for the present case, read as under:
―(7) Couples with two or more children shall only be
considered for special needs children as specified in clause
(25) of regulation 2, and hard to place children as stated in
clause (13) of regulation 2 unless they are relatives or step-
children.
(8) The prospective adoptive parents have to revalidate their
Home study report after a period of three years.‖
(Emphasis supplied)
37. The expressions ‗hard to place child‘ and ‗special needs child‘
have been defined in clauses (13) and (25) of Regulation 2 of the
2022 Regulations in the following terms:
―(13) ‗hard to place child‘ refers to a child who has not been
placed in adoption after going through the procedure as
mentioned below:—
(a) a normal child under the age of five who has not been
placed in adoption with a resident Indian or non-resident Indian
or Overseas Citizen of India Card holder prospective adoptive
parents within sixty days after referral;
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(b) or a child over the age of five or siblings who has not been
placed in adoption with a resident Indian or non-resident Indian
or Overseas Citizen of India Card holder prospective adoptive
parents within thirty days after referral;
xxxxxxxxx
(25) ‗special needs child‘ means a child who is suffering from
any disability as provided in the Rights of Persons With
Disabilities Act, 2016…‖
38. Chapter IV of the 2022 Regulations governs the procedure for
inter-country adoption. Regulation 16(5) provides that the HSR and
other documents of the PAPs shall be scrutinised at the Authority in
order to determine their eligibility and suitability. Regulation 45(2)
provides that in case the non-resident Indian and the Overseas Citizen
of India cardholder PAPs desire to initiate the process in a country
which is not a signatory to the Hague Adoption Convention, the
Indian Mission shall arrange to conduct the home study of such
parents and facilitate the adoption process, including uploading of the
HSR on the Designated Portal. Regulation 17(1), which governs
issuance of NOC, reads as under:
―(1) The Authority shall issue No Objection Certificate in
favour of the proposed adoption in the format provided in the
Schedule X, within ten days from the date of receipt of the
acceptance of the child by the prospective adoptive parents and
letter of approval or permission of the receiving country as per
Article 5 and Article 17 of the Hague Adoption Convention,
wherever applicable; and the No Objection Certificate shall be
generated online through the Designated Portal.‖
39. Thereafter, the order of adoption is passed by the
Court/District Magistrate, who, under Section 61 of the JJ Act, is
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required to satisfy himself, inter alia , that the adoption is for the
welfare of the child, before issuing the adoption order.
B. Whether the Petitioner was Eligible to be Considered for
Adoption of Baby K?
40. Admittedly, the petitioner and his spouse have two biological
children, the younger of whom was born on 17.03.2022, i.e. prior to
the coming into force of the 2022 Regulations on 23.09.2022. It is
also not in dispute that the original HSR of the petitioner expired in
December 2023, and the revalidation of the same was sought only in
the year 2025, when the 2022 Regulations had already been in force
for nearly three years. Thus, it is evident that at the time when the
HSR of the petitioner was revalidated, as well as at the time when
Baby K was referred to him in January 2026, the petitioner fell
squarely within the ambit of Regulation 5(7) of the 2022 Regulations,
and could only have been considered for adoption of a special needs
child or a hard to place child.
41. The argument of the learned counsel for the petitioner that
Section 59 of the JJ Act does not contain any restriction based on the
number of biological children of the PAPs, and that Regulation 5 of
the 2022 Regulations travels beyond Section 57 of the JJ Act, is not
of any help to the petitioner. Section 57(5) of the JJ Act itself
expressly contemplates that the eligibility of PAPs shall also be
governed by ‗ any other criteria that may be specified in the adoption
regulations framed by the Authority ‘. Regulation 5(7) has been
framed in exercise of this very power. The eligibility criteria laid
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down in Regulation 5 apply to all PAPs, whether resident Indians,
non-resident Indians, Overseas Citizens of India or foreigners, and
nothing in Chapter IV of the 2022 Regulations, which governs the
procedure of inter-country adoption, carves out any exception in
favour of non-resident Indian or Overseas Citizen of India PAPs.
Section 59(4) of the JJ Act also makes it clear that the process of
inter-country adoption is to be carried out ‗ in the manner as provided
in the adoption regulations framed by the Authority ‘. Similarly, the
argument that Section 59 does not mention the requirement of a NOC
is also unmerited, since CARA is the statutory authority entrusted
with the function of regulating inter-country adoptions under Section
68 of the JJ Act, and the requirement of NOC has been prescribed by
Regulation 17 of the 2022 Regulations framed under the JJ Act itself.
Notably, the validity of Regulation 5(7) of the 2022 Regulations has
not been challenged in the present petition.
42. The question as to whether Regulation 5(7) of the 2022
Regulations would apply even to those PAPs who had registered
themselves prior to the coming into force of the 2022 Regulations is
also no longer res integra , and has been answered by a Coordinate
Bench of this Court in Debarati Nandee v. Union of India: 2024
SCC OnLine Del 1075 . In the said case, the petitioners, who had two
biological children and had registered as PAPs under the 2017
Regulations, had assailed the decision of CARA to apply Regulation
5(7) of the 2022 Regulations to pending applications. Rejecting the
challenge, the Coordinate Bench held that the change was only in the
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eligibility criteria, that no vested right of PAPs had been taken away,
and that the policy behind Regulation 5(7) was intended to ensure
that more children with special needs find families. The relevant
observations are extracted hereunder:
―33. The aforesaid regulation was amended in the year 2022
where the figure three has now been brought down to two. The
policy of the legislature, therefore, is that the rush of a number
of couples, who already have more than four children, who are
available to adopt a child was felt in the year 2015. The said
figure of four was brought down to three in the year 2017 and
the same has now been brought down to two in the year 2022.
This indicates that there is no right amongst the PAPs to
insist on the child whom they want to adopt till the
adoption does not go through. The change is only in the
eligibility criteria.
34. ……In the case at hand, the introduction of the 2022
Regulations and the change in the position from Regulation
5(8) of 2017 to Regulation 5(7) of 2022 Regulations have not
altered an already vested right in the PAPs. Regulation 5(8) of
2017 merely put a bar on consideration of PAPs with three or
more children for the adoption of a normal child i.e. "shall not
be considered for adoption" of a normal child. The right to be
within the zone of consideration as a PAP continues and they
may still choose to opt for a special needs child as specified in
clause (25) of Regulation 2, and hard to place children as stated
in clause (13) of Regulation 2, unless they are relatives or step-
children.
35. Viewed in this light, it cannot be said that a pre-existing
right has been taken away by virtue of Regulation 5(7) of 2022
Regulations. The pre 2022 position nowhere stipulated a
positive right and a mandate thereof towards PAPs with less
than three or more biological children towards being
considered for the adoption of a "normal" category child since
it merely provides for a negative right of non-consideration in
certain cases, here being that of having three or more pre-
existing biological children. Any positive right as a corollary
as asserted by the petitioners towards adoption would only
accumulate and come into force after the District
Magistrate passes a final adoption order under Section
58(3) read with Section 61 of the Juvenile Justice (Care and
Protection of Children) Act, 2015. The mere recognition as a
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suitable PAP which falls out of a procedure established within
the statute and the regulations, cannot be stretched to entail a
vested right to be placed for consideration towards the adoption
of a normal child.
xxx
47. Above and beyond all opposing contentions and
considerations is the fundamental premise within which the
framework of the Juvenile Justice (Care and Protection of
Children) Act, 2015 and regulations thereunder operate which
is the principle of welfare and safety of the child. The best
interest of the child and their right to be adopted into a
suitable family triumphs all accruals of expectations of
PAPs corollary to adoption of a child. Due heed must be paid
to the submissions of the counsel for the respondents behind
the policy motivation of reducing the number the number of
biological children of PAPs to exclude them from the adoption
of a normal child from three to two. The long wait for
prospective parents including those who are devoid of even one
biological child must be seen in the backdrop of a grave
mismatch between the number of normal children available for
adoption and the number of PAPs in expectation of adopting a
normal child. A balanced approach therefore ought to be
welcomed which attempts to reduce the wait for parents with a
single child or devoid of even that, in anticipation of adoption
and the interests of the child while being matched with a family
with lesser number of already existing biological children.
xxx
49. This Court can take judicial notice of the fact that there are
a number of childless couples and parents with one child, who
are interested in adopting one more child, will adopt a normal
child, whereas the chances of a specially abled child being
adopted is remote. This policy has been brought in only to
ensure that more and more children with special needs get
adopted. That being the intention of the policy, the decision
taken by Respondent 2 to make it applicable for pending
applications cannot be said to be arbitrary.‖
(Emphasis supplied)
43. It has been informed by the learned counsel for the respondents
that though the decision in Debarati Nandee ( supra ) has been
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assailed, there is no stay of its operation, and the same has not been
disputed by the learned counsel for the petitioner.
44. Therefore, it is clear that in view of Regulation 5(7) of the
2022 Regulations, the petitioner could have been considered only for
adoption of a special needs child or a hard to place child. The
petitioner, however, has also raised a contention that Baby K was, in
fact, not a ‗normal‘ child, or at least that her status was not fixed, and
that she could also fall within the category of hard to place children.
(i) Whether Baby K is a ‘special needs child’
45. As taken note of in the preceding discussion, a ‗special needs
child‘ under Regulation 2(25) of the 2022 Regulations means a child
who is suffering from any disability as provided in the Rights of
Persons with Disabilities Act, 2016.
46. In the present case, the MER of Baby K, prepared on
16.01.2026, on the basis of which the referral was made and which
was accepted by the petitioner, classified her health status as
‗Normal‘. Furthermore, pursuant to the order of this Court dated
06.07.2026, a fresh medical examination of the child was conducted
in July 2026, when she was about eight months old. This Court notes
that the fresh MER of Baby K also classifies her health status as
‗Normal‘. It inter alia records that there is no developmental delay,
regression, or neurobehavioural or neurodevelopmental disorder;
describes her developmental status as ‗ appropriate for age ‘; records
her general mood as ‗ happy, content ‘; and records that she has passed
the hearing screening (otoacoustic emissions) in both ears. Her
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haemoglobin is recorded at 11.10 g/dl, which is within the biological
reference interval, and her thyroid profile shows a normal TSH value
with a marginally elevated T3 value.
47. In the considered opinion of this Court, the classification of a
child as ‗normal‘ or as a child with ‗special needs‘ is a matter which
falls within the domain of medical experts, in accordance with the
procedure prescribed under the 2022 Regulations, and this Court, in
exercise of its writ jurisdiction, cannot substitute its own opinion for
that of the medical experts, nor can it proceed on the basis of a mere
possibility that the child may, at some future point of time, be found
to have special needs.
48. Thus, on the material placed on record, Baby K cannot be
treated as a ‗special needs child‘ within the meaning of Regulation
2(25) of the 2022 Regulations.
(ii) Whether Baby K is a ‘hard to place child’
49. Insofar as the contention that a normal child may also fall
within the category of hard to place children is concerned, this Court
notes that as per Regulation 2(13)(a) of the 2022 Regulations, a
normal child under the age of five, who has not been placed in
adoption with a resident Indian, non-resident Indian or Overseas
Citizen of India cardholder PAP within sixty days after referral, is a
hard to place child.
50. However, it is apparent that the said category, by its very
definition and in the context of Regulation 5(7), is meant for those
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children who, despite having been referred, do not find a family
within the stipulated period. The expression “has not been placed in
adoption… within sixty days after referral” clearly refers to a child
for whom, despite referral, no eligible PAPs come forward, and not
to a child who has been reserved and accepted by PAPs, but whose
adoption could not be completed on account of administrative delay
or litigation.
51. In the present case, Baby K was referred to the petitioner on
21.01.2026 as a normal child, and was reserved by him within hours
of the referral becoming visible. Thereafter, upon her profile being
released into the referral pool on 01.04.2026, she was referred to, and
reserved by, other eligible PAPs. Baby K, therefore, was not a child
who could not find a family; rather, she has remained without one
only on account of the delay in the processing of the NOC, and
thereafter, on account of the pendency of the present proceedings.
Thus, such period cannot be counted so as to bring Baby K within the
category of hard to place children, and thereby render the petitioner
eligible.
52. In view of the aforesaid, this Court is of the considered opinion
that the petitioner, having two biological children, was not eligible to
be considered for adoption of a child of the ‗normal‘ category under
the 2022 Regulations, and that Baby K, on the material placed on
record, can neither be treated as a special needs child, nor as a hard to
place child. The referral of Baby K to the petitioner was, therefore,
contrary to Regulation 5(7) of the 2022 Regulations.
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C. Whether the Referral of Baby K, and its Acceptance by the
Petitioner, Creates any Vested Right in his favour?
53. The principal argument of the learned counsel for the
petitioner is that, in the present case, the referral had already been
made by CARA after due scrutiny of all the documents, and the same
had been accepted by the petitioner, and only the issuance of the
NOC remained pending, which the CARA was obliged to issue and it
could not have reopened the question of eligibility at this stage. It is
also argued that the decision in Debarati Nandee ( supra ) was
rendered in the context of PAPs who were at the pre-referral stage,
which is distinguishable from the present case.
54. In this regard, this Court notes that while there is no dispute
that the petitioners in case of Debarati Nandee ( supra ) were at the
pre-referral stage, and the Coordinate Bench, in that context,
observed that no expectation or vested right accrues at the pre-
referral stage, the ratio of the said decision however is not confined to
the pre-referral stage. The Coordinate Bench has, in clear terms, held
that at any step or stage of the process – before the passing of the
final order of adoption by the District Magistrate – a decision can be
taken to disqualify a PAP, and that any positive right would accrue
only after the final adoption order is passed. The relevant
observations are as under:
―24. … The PAPs, therefore, have a right to adopt a child
subject to the final adoption order of the DM under Section
61 of the Act. The short question, therefore, that arises for
consideration before this Court as to whether there is a right in
the PAPs to decide on which child they want to adopt or as to
whether the rules and regulations regarding the child available
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for adoption can be altered by the legislation. In the step by
step procedure for adoption as envisaged under the Act and
Regulations, at any step/stage a decision can be taken to
disqualify a PAP. Similarly, the parents can also decide to
abandon the proposal for adoption. It, therefore, cannot be
said that at any point of time before the final order of
adoption is passed by the District Magistrate that there is a
right in a PAP to adopt a particular child.
25. In light of this, this Court is of the opinion that there is no
right at all to insist on the adoption of a particular child…
xxx
42. Therefore, it is settled that the right to adopt cannot be
raised to the status of a fundamental right within Article 21 nor
can it be raised to a level granting PAPs the right to demand
their choice of who to adopt. The adoption process in entirety
operates on the premise of welfare of children and therefore the
rights flowing within the adoption framework does not place
the rights of the PAPs at the forefront. There can be no
expectation at the pre-referral stage towards the adoption of a
normal child, in the absence of any vested rights of legislative
assurance towards consideration for the same.
43. It is settled law that ―legitimate expectations‖ flow from the
accrual of rights which follows consistent past practices.
However, as elucidated above, since subsequent to the stage at
which the petitioners are present, there may be multiple
eventualities which may revoke their considerations towards
adoption till the passage of the District Magistrate's order under
Section 58(3) read with Section 61 of the Act, such a consistent
past practice which causes the accrual of a right cannot be
made out here.‖
(Emphasis supplied)
55. Moreover, the question as to whether the referral of a child and
its acceptance by PAPs creates any right which can override the
statutory regime is also not res integra . The Hon‘ble Supreme Court
in Union of India v. Ankur Gupta: (2019) 18 SCC 276 , which has
also been noticed by the Coordinate Bench in Debarati Nandee
( supra ), was dealing with a case where a child had been offered to
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the PAPs, who had communicated their acceptance and had also
communicated with the child; however, their case could not be
processed under the procedure applicable to resident Indians, since
one of them had acquired foreign citizenship during the process.
While setting aside the decisions of this Court which had directed
reconsideration of their case, the Hon'ble Supreme Court held that,
notwithstanding the bona fides of the PAPs and the fact that they had
accepted the child, the statutory procedure and the statutory regime
could not be lost sight of. The relevant observations of the Supreme
Court are set out hereunder:
―13. ……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 the regulations are silent and do not provide for any
mechanism or any answer to such fact situation, the natural
consequences of acquiring foreign citizenship shall follow…
14. ……We are, however, not oblivious to the fact that
Respondents 1 and 2 had been bona fide pursuing their
applications for adoption, initially as resident Indians and
thereafter even as overseas citizens of India. As per Section 57,
both Respondents 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 Respondents 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. We have no doubt in the bona fide or the
competence of Respondents 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 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), Respondents 1 and 2 can at best may
be given priority in inter-country adoption, they being eligible
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overseas citizens of India and further due to consequences of
events and facts as noticed above.‖
(Emphasis supplied)
56. Thus, it is evident that even at the post-referral stage, where
the child had been offered to and accepted by the PAPs, and where
the PAPs had also communicated with the child, the Hon‘ble
Supreme Court held that the statutory regime must prevail, though it
also observed that the PAPs therein could, at best, be given priority in
the category for which they were eligible.
57. In the present case, however, it is not even the case that the
ineligibility of the petitioner arose on account of any subsequent
change during the process; rather , the petitioner was ineligible to be
considered for a normal child on the very date on which his HSR was
revalidated and the referral was made by CARA.
58. The learned counsel for the petitioner has also vehemently
argued on the aspect of issuance of NOC, that under Regulations 10
and 16 of the 2022 Regulations, the HSR is prepared only after
extensive enquiry, and Regulation 16(5) places responsibility on
CARA to scrutinise the HSR and other documents to determine
eligibility and suitability, and that after this scrutiny, referrals,
reservation and acceptance occur within the ambit of these
Regulations. It is accordingly argued that once acceptance is received
from PAPs, Regulation 17 & Schedule XIV impose a strict 10 days
limit on CARA to issue the NOC, which makes it clear that the
process cannot be reopened at this stage. On the other hand , the
learned counsel for the respondents has contended that issuance of
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NOC is not an empty formality and the stage for issuance of an NOC
arises only after all documents prescribed under Schedule VI to the
Adoption Regulations, 2022 (both pre-referral and post-referral), are
duly furnished through the AFAA/ IDM and examined by CARA in
accordance with the statutory framework.
59. Having given its thoughtful consideration to these rival
submissions, this Court is of the view that the issuance of NOC under
Regulation 17 of the 2022 Regulations cannot be termed as a mere
formality, inasmuch as it is the stage at which CARA, as the central
statutory authority regulating inter-country adoptions, accords its
approval to the proposed adoption, which forms the basis of the
subsequent proceedings before the District Magistrate. The fact that
Regulation 17(1) uses the word ‗shall‘ or prescribes a period of ten
days for issuance of the NOC cannot mean that NOC is mandatorily
to be granted, even if during this period, it comes to the notice of
CARA that the petitioner is ineligible, or that upon expiry of the said
period of ten days, the PAPs acquire a right to the NOC, irrespective
of their eligibility. There can be no two views on the fact that the said
timeline is meant to ensure expeditious completion of the process in
the interest of the child, however , it cannot, in absence of any specific
provision, confer eligibility upon PAPs who are otherwise statutorily
ineligible to adopt a ‗normal‘ child. The delay on the part of CARA,
though worthy of strong disapproval of this Court, cannot result in a
deemed NOC, which neither the JJ Act nor the 2022 Regulations
contemplate.
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60. It is, however, relevant to note that CARA has explained that
the delay and the erroneous referral occurred in the backdrop of the
migration of the Designated Portal from CARINGS to the Mission
Vatsalya Portal, during which certain technical inconsistencies arose,
and that the petitioner's ineligibility was inadvertently overlooked at
the stage of initial scrutiny. This Court also cannot lose sight of the
fact that the said error came to light before the issuance of the NOC
and, consequently, before the passing of any final order of adoption
by the District Magistrate. Thus, notwithstanding the lapse on the
part of CARA, the same was detected at a stage when the adoption
process had not culminated in a final adoption order, and the
statutory authority, therefore, cannot be precluded from correcting
the error and ensuring compliance with the applicable statutory
framework.
61. It is also well settled that a writ of mandamus can be issued
only for enforcement of a legal right and a corresponding legal duty,
and no mandamus can be issued directing a statutory authority to act
in a manner contrary to the statute or the regulations governing it. A
direction to CARA to issue the NOC in favour of the petitioner for
adoption of a normal child, despite the bar contained in Regulation
5(7), would certainly amount to directing CARA to act in
contravention of the 2022 Regulations.
62. The learned counsel for the petitioner has also argued that
there was a legitimate expectation on the part of the petitioner, and
has also relied on the principles of promissory estoppel. Insofar as
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this argument is concerned, it would be apposite to take note of the
decision of the Hon‘ble Supreme Court in Sivanandan C.T. v. High
Court of Kerala: (2024) 3 SCC 799 , on which reliance has been
placed by the petitioner himself in the grounds of the petition,
wherein the Supreme Court has explained the contours of the
doctrine of legitimate expectation in the following words:
―27. In Union of India v. Hindustan Development Corporation,
this Court clarified the contours of the doctrine of legitimate
expectation in the following terms: (i) legitimate expectation
arises based on a representation or past conduct of a public
authority; (ii) legitimacy of an expectation can be inferred
only if it is founded on the sanction of law or custom or an
established procedure followed in regular or natural
sequence; (iii) legitimate expectation provides locus standi to a
claimant for judicial review; (iv) the doctrine is mostly
confined to a right of a fair hearing before a decision and does
not give scope to claim relief straightaway; (v) the public
authority should justify the denial of a person's legitimate
expectation by resorting to overriding public interest; and (vi)
the Courts cannot interfere with the decision of an authority
taken by way of policy or public interest unless such decision
amounts to an abuse of power.
xxx
49. ……In a nutshell, an individual who claims a benefit or
entitlement based on the doctrine of legitimate expectation has
to establish: (i) the legitimacy of the expectation and (ii) that
the denial of the legitimate expectation led to the violation of
Article 14.‖
(Emphasis supplied)
63. In the present case, the expectation of the petitioner, though
may be genuine from his perspective in view of the initial action on
the part of CARA by referring Baby K despite she being a normal
child, cannot wish away the fact that such referral was itself contrary
to Regulation 5(7) of the 2022 Regulations, which was subsequently
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noticed by CARA prior to issuance of the NOC and any final order
being passed by the District Magistrate.
64. In the opinion of this Court, an expectation which is founded
upon some actions of the authority done in contravention of the
statutory regulations, though later corrected before issuance of NOC
and passing of final order, cannot be said to be founded on the
sanction of law, and therefore, cannot be termed a ‗legitimate‘
expectation in law. For the same reason, the plea of promissory
estoppel is also of no avail to the petitioner, since it is settled that
there can be no estoppel against a statute or statutory regulations, and
a statutory authority cannot be compelled, on the basis of its
representation or conduct, to do something which the law prohibits.
65. In view of the foregoing discussion, and also in view of the
decision of the Coordinate Bench of this Court in Debarati Nandee
( supra ) and the Hon‘ble Supreme Court in Ankur Gupta ( supra ), this
Court is of the considered opinion that neither the referral of Baby K
to the petitioner and its acceptance by him, nor the subsequent
conduct of CARA in processing the application for issuance of the
NOC, conferred any vested or enforceable right upon the petitioner to
seek adoption of a child for whose adoption he was statutorily
ineligible.
D. The Best Interests of the Child vis-à-vis the Petitioner’s
Claim for Adoption
66. This Court now turns to another aspect of the present case, i.e.,
the petitioner‘s argument that the family had begun to develop an
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emotional bond with Baby K and thus, the best interest of child has to
be kept in consideration while deciding the present case. It is not in
dispute that the petitioner travelled to India, met the child, and spent
time with her, while his family, including his wife and other children,
remained in touch with her through video calls. This Court is thus
conscious of the distress which the petitioner and his family must
have experienced when the referral was withdrawn by CARA, after
they had begun preparing for arrival of the baby.
67. However, while the petitioner‘s interaction with Baby K and
the attachment which his family may have developed with her cannot
be disregarded, the question of the child‘s welfare has to be
considered independently of the expectations of the prospective
adoptive parents. The nature and extent of any bond between the
PAPs and the baby, and its bearing on the child‘s welfare, will also
have to be assessed in the context of the baby‘s age and the limited
period of their interaction. Therefore, the emotions of the prospective
adoptive parents, howsoever genuine, cannot be the sole basis for
determining what would serve the best interests of the child.
68. The expression ‗best interest of the child‘ has been defined in
Section 2(9) of the JJ Act in following words:
― 2 . In this Act, unless the context otherwise requires,—
xxx
(9) ―best interest of child‖ means the basis for any decision
taken regarding the child, to ensure fulfilment of his basic
rights and needs, identity, social well-being and physical,
emotional and intellectual development…‖
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69. Section 3 of the JJ Act elevates this to a fundamental principle,
requiring as under:
― 3 . The Central Government, the State Governments, the
Board, and other agencies, as the case may be, while
implementing the provisions of this Act shall be guided by the
following fundamental principles, namely:––
xxx
( iv ) Principle of best interest: All decisions regarding the child
shall be based on the primary consideration that they are in the
best interest of the child and to help the child to develop full
potential.‖
70. Further, Regulation 3(a) of the 2022 Regulations also provides
as follows:
― 3 . Fundamental principles governing adoption.― The
following fundamental principles shall govern adoptions of
children from India, namely:―
(a) the child‘s best interests shall be of paramount
consideration, while processing any adoption placement…‖
71. In this Court‘s opinion, the meaning of scope of ―best interests
of the child‖ cannot be considered in isolation from the statutory
framework which governs the adoption process. It is material to note
that Regulation 5(7) of the 2022 Regulations embodies a policy
decision, that PAPs having two or more biological children shall be
considered only for the adoption of special-needs children or hard-to-
place children, subject to the exceptions specified therein. This
restriction operates alongside the broader objective of ensuring that
children with special needs find adoptive families, and that the
limited number of children in the ‗normal‘ category are matched in
accordance with the prescribed eligibility criteria. In this regard, it
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would also be pertinent to consider certain observations in Temple of
Healing v. Union of India: 2023 SCC OnLine SC 1590 , wherein the
Hon‘ble Supreme Court, took note of the mismatch between the
number of children legally available for adoption and the number of
prospective adoptive parents awaiting referrals, which are extracted
hereunder:
―...despite these timelines, it is apparent that as a result of the
mismatch between the number of children legally available for
adoption and PAPs who are registered on the portal, the
process of adoption is interminably long. By CARA's official
estimate, at least three to four years elapse in the process...‖
72. Therefore, it is of utmost importance that the adoption
framework in the country operates in a fair, impartial and consistent
manner, to ensure that the interests of children, and the legitimate
expectations of all eligible prospective adoptive parents, are
protected. Accordingly, the eligibility criteria cannot be treated as
dispensable, only because its application in an individual case may
cause hardship or distress to the prospective adoptive parents.
73. In the present case, the referral of Baby K to the petitioner was
made contrary to Regulation 5(7) of the 2022 Regulations, as she was
classified as a normal child and the petitioner, having two biological
children, was not eligible to be considered for her adoption, and as
already noticed, such error was attributable to the administrative
lapse and oversight on the part of CARA. Nevertheless , in case the
emotional bond, if any, arising from an erroneous referral made by
CARA is held sufficient to override the prescribed eligibility criteria
in the statutory regulations, it would open the door for every
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ineligible PAP to claim that a child had been referred to him or her
on account of an error or oversight, and that the bond formed in the
interregnum entitles him or her to adopt the child. Such an approach
would not only defeat the aim of Regulation 5(7), but would also
render the entire process of adoption uncertain and also unequal for
thousands of PAPs who wait patiently for years in accordance with
the Adoption Regulations.
74. Therefore, the principle of the child‘s best interests cannot be
invoked to circumvent the very safeguards designed to secure
suitable and lawful adoptive placements. Accordingly, this Court is
of the opinion that, notwithstanding the circumstances in which the
referral was withdrawn by CARA and the emotions of the petitioner
and his family, the best interests of Baby K do not call for grant of
the reliefs sought in the present petition, as one of the paramount
considerations remains the child‘s placement in a suitable family –
through a process that conforms to the governing statutory
framework, i.e. as per the 2022 Regulations.
E. Administrative Lapses and the Need for Institutional
Safeguards
75. The present case cannot be concluded only by holding that the
petitioner was ineligible to adopt Baby K, since the facts of the case
reveal several lapses in the functioning of CARA which, if left
unaddressed, may cause similar distress to other PAPs and, more
importantly, adversely affect children awaiting adoption. The
petitioner, after waiting for over five years, was referred a child by
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CARA itself; was informed that the NOC was under process; and was
given reason to believe that the NOC was nearing issuance. Yet,
without any prior intimation, his application was reflected as
―Application Rejected – Withdrawn‖, even though he had not
withdrawn it. The child was thereafter referred to another family. The
consequences of these lapses have not been confined to the petitioner
and his family. The subsequent prospective adoptive parents, who
reserved Baby K after she was released into the referral pool, have
also been affected by the present litigation, despite no fault on their
part. Above all, the child‘s placement in a family has also been
delayed. In this Court‘s opinion, while the eligibility criteria, as set
out in the statutes, has to be enforced uniformly to all, the process
leading to a referral, its withdrawal and the issuance of an NOC must
also be conducted with due care, transparency and sensitivity.
76. In these circumstances, this Court considers it appropriate to
issue the following directions to CARA, to be implemented in
coordination with the concerned Specialised Adoption Agencies,
State Adoption Resource Agencies, authorised foreign adoption
agencies and Indian Diplomatic Missions, wherever applicable:
(i) Verification of eligibility before referral : CARA must
ensure that the eligibility of PAPs is verified and recorded at
the stage of registration and revalidation of the HSR, as well as
before the generation of a child referral. Such verification
should specifically include the criteria prescribed under
Regulation 5 of the 2022 Regulations, including Regulation
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5(7). The Designated Portal shall be configured, to the extent
technically feasible, to prevent referrals that are inconsistent
with the recorded eligibility of the prospective adoptive
parents.
(ii) Audit of profiles affected by portal migration : In view of
the technical inconsistencies arising during the migration of the
Designated Portal, CARA must undertake an audit of profiles
revalidated or updated during the migration period, so as to
identify and rectify discrepancies between the information
submitted by prospective adoptive parents and the particulars
reflected on the portal.
(iii) Time-bound processing of NOCs : CARA must adhere to
the timeline prescribed under Regulation 17(1) of the 2022
Regulations. Where deficiencies in the requisite documents
prevent processing of the NOC, CARA must communicate the
deficiencies in writing, preferably through a consolidated
communication, to the concerned PAPs and the authorised
agency or IDM, as applicable.
(iv) Accuracy of portal status and grievance redressal :
CARA must ensure that the status of an application on the
Designated Portal accurately reflects the action taken by it
alongwith brief reasons. An application should not be marked
as ―withdrawn‖ unless the PAPs have specifically withdrawn
it. Any rejection or closure of an application shall be
communicated to the concerned parties with brief reasons. The
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grievance redressal mechanism shall provide specific
responses, and assurances regarding the issuance of an NOC
shall not be conveyed unless supported by the status of the
matter before the competent authority.
(v) Accountability and implementation: CARA shall examine
the lapses identified in the present case, take appropriate
corrective measures and fix responsibility wherever
necessitated. It shall also issue necessary instructions and
standard operating procedures, and sensitise the officers and
staff dealing with eligibility verification, referrals, NOCs and
grievances, to ensure compliance with the above directions.
F. Decision
77. In view of the foregoing discussion, the interim order dated
13.04.2026 stands vacated. CARA shall, forthwith , take all necessary
steps for the placement of Baby K in adoption, in accordance with
law.
78. Before parting with this judgment, this Court also clarifies that
nothing in this judgment shall be construed as a reflection upon the
bona fides or the suitability of the petitioner and his spouse as
adoptive parents. This Court can only hope that the petitioner and his
family, who have shown remarkable warmth, will find their way to a
child who needs them, perhaps a child with special needs, for whom
the doors of a loving home are not opened as often as they should be.
This Court also expects that CARA will treat this case as an occasion
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to introspect itself, since behind every profile on its portal, is a family
waiting for a child, and a child waiting for a family.
79. With these observations and directions, the writ petition stands
dismissed, alongwith pending application(s).
80. The judgment be uploaded on the website forthwith.
DR. SWARANA KANTA SHARMA, J
OCTOBER 15, 2026/ns
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