According to the 2011 census around 2% of the Indian population have some sort of disability. Though disabled persons have been provided with all fundamental rights other citizens enjoy in the Indian constitution and even reservation facilities have been provided in educational institutions and government jobs.
According to National trust welfare of persons with Autism, Cerebral Palsy, mental Retardation and multiple disabilities, rules 2000 and Board of Trust Regulation 2001 which prohibit the foreign national from becoming the guardian of a child under rule 17 and regulation 12, having Indian citizenship is a prerequisite.
A division bench led by Satish Chandra Sharma and justice Yashwant Verma of Delhi High Court has endorsed the above rules and regulations and held that the Board of Trustees and central government have the right to decide the parameter to the guardianship of a child.
The court expressed concern regarding the enforcement and monitoring of child custody due to the relocation of a child outside the jurisdiction of statutory authority.
Court has rejected the contention of the Petitioner who is having American Citizenship to get guardianship of his adopted son who suffers 90% disability. As petitioner is living in India as an Overseas citizen of India since 2009.
It was alleged that the words “Parent” and “relative” as mentioned in section 14 do not necessarily demand that a person should be a citizen of India to get guardianship of a child and the Rule and regulation in section 14 are ultra vires which defeat the enabling provision.
In Gaurav Nagpal v Sumedha Nagpal supreme court has held that :
The Principles in Relation to the custody of the minor child are well settled. In determining the question of who should be given custody of a minor child Paramount consideration is welfare of the Child, not the right of parents under the statute from the time being in force.