Sumanlal
Chhotalal Kamdar Vs. Miss Asha Trilokbhai Shah [1995] INSC 267 (9 May 1995)
Sahai,
R.M. (J) Sahai, R.M. (J) Hansaria B.L. (J) R.M. Sahai, J.
CITATION:
1995 AIR 1892 1995 SCC (3) 700 JT 1995 (5) 165 1995 SCALE (3)553
ACT:
HEAD NOTE:
THE
9TH DAY OF MAY, 1995 Present:
Hon'ble
Mr. Justice R.M.Sahai Hon'ble Mr. Justice B.L.Hansaria Mr. P.H. Parekh, Ms. Smrita
Mishra, Mr. N.K.Sahoo, Advs. for the appellants. Mr. S.Ganesh, Mr. C.H.Patel,
Ms. Reema Bhandari, Mr. M.N.Shroff, Mr. K.V.Sreekumar and Ms. Kamini Jaiswal,
Advs. for the Respondents.
The
following Judgment of the Court was delivered:
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 5403-04
OF 1995 [Arising out of S.L.P.(C) Nos.3662-63 of 1989] Sumanlal Chhotalal Kamdar
etc. ..... Appellants Versus Miss Asha Trilokbhai Shah etc. ..... Respondents
An
important question in relation to the adoption of infants from orphanage or
ashrams by foreign nationals is raised by the appellants, who claim to be
social workers.
They
approached the High Court, invoked its appellate jurisdiction against the order
passed by the District Judge, Rajkot, allowing the application filed by
Superintendent, Kathiawar Nirashrit Balashram as Power of Attorney holder of a
Norwegian couple under Section 7 of the Guardians and Wards Act, 1890 and
appointing the Norwegian couple as the guardian of the child with certain
conditions mentioned in the order. By the time the appeal came up for hearing,
the law of adoption by foreign nationals was streamlined by this Court in two
decisions: Lakshmi Kant Pandey v. Union of India (1984) 2 SCR 795 and Laxmi
Kant Pandey v. Union of India & Anr. (1985) Supp. 3 SCR 71. The learned
Single Judge, therefore, after examining the conditions imposed by the District
Judge held that the guidelines laid down by this Court had been scrupulously
followed. The order was maintained in appeal as well.
The
guidelines laid down by the Court are quite exhaustive. What is urged is that
they are not being carried out either in letter or spirit. It is, therefore,
necessary to reiterate the guidelines laid down by this Court in the case of Lakshmi
Kant Pandey (supra) and further make it clear that whenever an application is
filed for permission to adopt a child by a foreign national then the guidelines
would be strictly adhered to. The authority permitting adoption should explain
to the biological parent of the child about the nature and effect of the
adoption and the possible permanent loss of contact from the child. In absence
of a finding that the authorised officer took precaution to explain the effect
of adoption it may be rendered infirm. This is demonstrated by the facts of
this case as the Superintendent, as holder of Power of Attorney of the
Norwegian couple, became the applicant and as Superintendent of the Ashram gave
the child in adoption.
That
was not proper. It was the duty of the Superintendent to have contacted the
mother and the father, if they were known, and to explain to them the effect of
adoption unless they were not available. However, we do not interfere with the
orders passed by the courts below, but as indicated above, the guidelines have
to be enforced strictly, as violation of the same may not only render the
adoption infirm, but may lead to proceeding against the person infringing the
same.
The
appeals are thus disposed of by reiterating the guidelines laid down by this
Court and stating that any violation of these or non-compliance may lead to
adoption being declared invalid and expose the persons concerned to strict
action including prosecution.
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