Laxmi Kant Pandey Vs. Union of India
& ANR [1985] INSC 210 (27 September 1985)
BHAGWATI, P.N. (CJ) BHAGWATI, P.N. (CJ)
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION: 1986 AIR 272 1985 SCR Supl. (3) 71
1985 SCC Supl. 701 1985 SCALE (2)849
CITATOR INFO:
E 1987 SC 232 (4,5,6,8,9,11,13)
ACT:
Adoptions- Inter-country adoption of children
- Adoption of Indian Children by foreign parents - Principles and norms laid
down by Supreme Court - Clarification and alteration of.
HEADNOTE:
The applicants - social or child welfare
agencies engaged in placement of children in inter-country adoption after
having felt that there were certain difficulties in implementing the principles
and norms adopted and the procedure laid down by Supreme Court in its judgment
in Laxmi Kant Pandey v. Union of India, W.P. (Crl.) No. 1171/82, made the
present applications seeking clarification on the various points " namely
(i) whether a scrutinizing agency must be distinct from a placement agency;
(ii) what steps must be taken where there is disruption in the family of the
petitioner either before or after the adoption; (iii) what is the role which a
scrutinising agency is expected to play in the procedure relating to
inter-country adoptions;
(iv) whether it is desireable to permit a child
to be taken from one State to another for the purpose of being given in
adoption and,, if so, what guidelines should be followed;
(v) Clarification in regard to the reports to
be made by the social or child welfare agency sponsoring the application after
the foreigner is appointed guardian of the child and he takes the child to his
own country; (vi) what is the role which the representatives of foreign
agencies should be allowed to play in inter-country adoption; (vii) whether the
requirement that the certificates, declarations and documents required to be
submitted along with the application of `the foreigner for taking a child in
adoption should be duly notarised by a Notary Public and the signature of the
Notary Public should be duly attested either by an officer of the Ministry of
External Affairs or Justice or social welfare of the country of the foreigner
or by an officer of the Indian Embassy or High Commissioner or Consulate in
that country, must be insisted upon; (viii) whether the court, while making an
order for appointment of a foreigner as guardian should not insist on deposit
being made by way of security for enabling the child to 72 be repatriated to
India, should it become necessary for any reason and instead a bond to be
executed by the foreigner should be sufficient; (ix) Direction regarding
extension of time of 2 years to complete the adoption process in bona fide
cases; (x) whether the sum of Rs. 60 per day fixed as the maximum for
reimbursement of maintenance expenses which may be incurred by a social or
child welfare agency on the child was to High and that it should be reduced to
Rs. 500 per month; (xi) whether suitable directions be given to district courts
to expedite proceeding for appointment of a prospective adoptive parent as guardian
of the child. (xii) whether the courts must require the foreign parents wishing
to take a child in adoption to come down to India for the purpose of meeting
the child before approving the child for adoption and (xiii) what efforts be
made to give a child in adoption to Indian parents before considering the
possibility of placing it in adoption with foreign parents.
Disposing of the applications, ^
HELD: 1. The scrutinizing agency appointed by
the Court for the purpose of assisting it in reaching the conclusion whether it
would be in the interest of the child to be given in adoption to the foreign
parents must not in any manner be involved in placement of children in
adoption. The scrutinizing agency must be an expert body having experience in
the area of child welfare and it should have nothing to do with placement of
children in adoption, for otherwise objective and impartial evaluation may not
be possible. [80 H; 81 A-B]
2. The social or child welfare agency
sponsoring the application must undertake that in case of disruption of the
family of the foreigner before adoption can be effected it will take care of
the child and find a suitable alternative placement for it with the approval of
the concerned social or child welfare agency in India and report such
alternative placement to the Court handling the guardians-ship proceedings and
such information shall be passed on both by the court as also by the concerned
social or child welfare agency in India to the Secretary, Ministry of Social
Welfare, Government of India. The social or child welfare agency sponsoring the
application should also, in the event of disruption of the family of the
foreigner before adoption can be effected, give intimation of this fact to the
Indian Embassy or High Commission, as the case may be, and the Indian Embassy
or High commission shall also be kept informed about the whereabouts of the
child so that they can take the necessary steps for ensuring that the child is
properly taken 73 care of and a suitable alternative placement for it is found.
If a disruption in the family of the foreigner takes place after the child is
adopted, nothing can be done by the social or child welfare agency sponsoring
the application, because, on adoption, the child would acquire the nationality
of its adoptive parents and would then be entitled to all the rights of a
national in that country.
[81 E-H]
3. The scrutinizing agency should not be
asked to make any inquiries before a child is offered in adoption to a
foreigner or a petition for appointment of a foreigner as guardian is filed in
Court. The primary responsibility for ensuring that the child is legally free
for adoption must be that of the social or child welfare agency processing the
application of the foreigner for guardian-ship of the child.
Whatever inquiries are necessary for the
purpose of satisfying itself that the child has been voluntarily relinquished
by its biological parents after understanding all the implications of adoption
must be the responsibility of the social or child welfare agency processing the
application for guardianship. But so far as the scrutinizing agency is
concerned it should not come into the picture at this stage. It has a vital
role to play after a foreigner has approved of the child to be taken in adoption
and a petition is filed in court for appointment of the foreigner as guardian
of the child and it is at that stage that the scrutinising agency is expected
to assist the court in coming to the conclusion whether it would be in the
interest of the child to be given in adoption to the foreigner. The
scrutinising agency should not at that stage try to ascertain who are the
biological parents' of the child and whether they are willing to take back the
child. That is primarily the responsibility of the social or child welfare
agency processing the application. The Court should, in order to make sure that
the child is legally free for adoption, require the social or child welfare
agency processing the application to place material before the court stating what
efforts have been made to trace the biological parents and what are the
circumstances in which the child came into the possession of such social or
child welfare agency. Where the court feels some doubt as to how the child has
been obtained and in what manner, the Court may ask the scrutinising agency to
make inquiries with a view to finding out how the social or child welfare
agency processing the application has got the child and if the child has been
obtained by such social or child welfare agency from another institution or
agency, how that institution or agency got the child and from what source and
in what manner and the scrutinising agency may then make discreet inquiries for
this purpose without disclosing 74 to any one that the child is sought to be
given in adoption.
The Court may also in an appropriate case
where it has some doubt ask the scrutinising agency to inquire whether the
child has been voluntarily surrendered by the biological parents or whether
such relinquishment has been obtained by fraudulent means. But unless the Court
so directs, the scrutinising agency should not make any attempt to trace the
biological parents of the child or to inquire whether they are willing to take
back the child. [ 82B; 83A-D]
3. (ii) The social or child welfare agency
engaged in the work of placing children in adoption should not readily assume
that children including cradle babies who are found abandoned are legally free
for adoption. No children who are found abandoned should be deemed to be
legally free for adoption until the Juvenile Court or the Social Welfare
Department declares them as destitutes or abandoned. It should also be
impressed upon the Juvenile Courts that when children are selected for
adoption, release orders should be passed by them expediously and without delay
and proper vigilance in this behalf must be exercised by the High Courts. [83
E-G]
4. (i) There should not be any objection in a
child under the care of a social or child welfare agency or hospital or
orphanage in one State being taken to another State by a social or child
welfare agency for the purpose of being given in adoption because the
procedural safeguards laid down in Laxmi Kant Pandey's case would be sufficient
to eliminate the possibility of trafficking in children through inter-State
transfer of children. [83 H; 84 A-B] (ii) By way of additional safeguard, it is
directed that no court in a State will entertain an application for appointment
of a foreigner as guardian of a child which has been brought from another State,
if there is a social or child welfare agency in that other State which has been
recognised by the Government of India for inter-country adoption. The social or
child welfare agency processing the application for guardianship should then be
directed to send the child to the recognised social or child welfare agency in
the other State, so that whatever proceedings are necessary for giving the
child in adoption may be instituted by the social or child welfare agency and
in such an event, the complete details of the case history and background
including the home study report, the child study report, if any, and all other
information relating to the child should be made available to the latter social
or child welfare agency. If there is no recognised social or child welfare
agency in the State where the child is 75 found or obtained, the child shall be
transferred to a recognised social or child welfare agency at the nearest place
in the immediate neighbouring State. [85 B-D]
5. (i) It is necessary that progress reports
must be submitted to the Court and to the social or child welfare agency in
India quarterly during the first two years and half yearly for the next three
years but after adoption had taken place the Courts may not insist on strict
observance of this requirement. The order to be made by the Court should also
provide that progress reports shall be submitted by the social or child welfare
agency sponsoring the application of the foreigner until adoption is effected.
That would provide greater assurance because
it may not be possible to take any action if the foreigner fails to provide
progress reports, but if the social or child welfare agency sponsoring the
application for guardianship fails to submit progress reports, the Court can in
future decline to entertain any application for guardianship where the
foreigner seeking appointment as guardian is sponsored by such social or child
welfare agency. [85 G-H; 86 A-B]
5. (ii) However, if there is a social or
child welfare agency owned or operated by the Government in a foreign country,
it would not be necessary for a foreigner to route his application through a
recognised social or child welfare agency within his country and he can
approach a recognised social or child welfare agency in India through such
Government agency.
Where there is Government agency in a foreign
country through which applications for taking children in adoption are routed,
as in Sweden, it may not be possible to insist that the progress reports in
regard to the child should be submitted by the Government agency and in such
case it may be enough to provide in the order to be made by the Court that the
progress reports shall be submitted by the foreign parents through the
Government agency. [87 B-E]
6. There is no objection to a foreign social
or child welfare agency having a representative in India, but it is necessary
to lay down certain parameters within which 8 . h representative can be allowed
to operate. In the first place, the representative should be an Indian citizen
with a degree or diploma in social work coupled with experience in child
welfare. Secondly, the representative should be acting only for one foreign
social or child welfare agency and not more nor should he be working on a 76
free lance basis. It would also be desirable to limit the sphere of operation
of the representative to a particular geographical area so that he is able to
attend to his functions and duties properly and diligently. The representative
should have a general power of attorney to act in India on behalf of the
foreign social or child welfare agency and he should also have the authority to
operate banking accounts in the name of the foreigner social or child welfare
agency with the permission of the Reserve Bank of India. In order to prevent
taking of children from needy parents by offering them monetary inducement and
to eliminate trafficking in children the representative of the foreign social
or child welfare agency should not be permitted to go scouting for children, or
to receive children directly from parents. He should be allowed to act as
representative only if he is recognised as such by the Central Government and
such recognition may be given by the Central Government subject to the
condition that the various requirements set out above are complied with by such
representative. [86 D-H; 87 A]
7. There is no need to dispense with the
requirement that the certificates, declarations and documents required to be
submitted along with the application of the foreigner for taking a child in
adoption should be duly notarised by a Notary Public and the signature of the
Notary Public should be duly attested either by an officer of the Ministry of
External Affairs or Justice or social welfare of the Ministry of External
Affairs or Social Welfare of the country of the foreigner or by an officer of
the Indian Embassy or High Commission or Consulate in that country. [87 F-G]
8. The Court may not ordinarily insist on
making of the deposit by the foreigner but in an appropriate case, if it so
thinks fit, it may pass such an order. The execution of a bond would ordinarily
be sufficient. The bond should be by way of security for repatriation of the
child to India in case it becomes necessary to do so as also for ensuring
adoption of the child within the period two years. The bond may be executed by
the foreigner who is appointed guardian of the child, but there may be
difficulty in enforcing such bond, unless the bond is executed in favour of the
Indian Diplomatic Mission in the country of the foreigner. It might therefore
be safer to take the bond from the representative of the foreign child or
social welfare agency in India so that if the condition of the bond is
violated, the Court can proceed to enforce the bond against such representative
who would be an Indian national. There is also 77 another alternative which may
be adopted by the Court. The Court may take the bond from the social or child
welfare agency which has processed the application and such social or child
welfare agency may in its turn take a corresponding bond from the sponsoring
social or child welfare agency in the foreign country. But, though this
alternative may, in a given case, be adopted by the court, where the recognised
social or child welfare agency processing the application is ready to give the
bond, the Court should not insist upon execution of the bond by such social or
child welfare agency. It would be sufficient to take the bond from the
representative of the foreign social or child welfare agency in India or to
insist on the bond being executed by the foreigner in favour of the Indian
Diplomatic Mission abroad.
[88F; 89 A-D]
9. Where it is not possible for the foreigner
to complete the adoption process within two years, an application should be
made to the Court for extension of time for making the adoption D and the Court
may grant appropriate extension or time. [89 F]
10. The sum of Rs. 60 per day, represents the
outside limit of the maintenance expenses which may be recovered from the
prospective adoptive parents and it does not represent the rate at which
maintenance expenses should be recoverable in every case. When the Court makes
an order appointing a foreigner as guardian, the Court should look into this
question and sanction the amount to be paid by the foreigner to the social or
child welfare agency by way of reimbursement of maintenance expenses and that
only such amount as may be sanctioned by the Court shall be recoverable by the
social or child welfare agency by way of maintenance expenses from the
foreigner who is appointed guardian of the child. So far as surgical or medical
expenses incurred on the child are concerned, they should also be recoverable
by the social or child welfare agency against production of bills or vouchers.
The recognised social or child welfare agency processing the application must
also be entitled to recover from the foreigner who is sought to be appointed
guardian of the child, costs incurred in preparing and filing the application
and prosecuting it in Court. Such expenses may include legal expenses,
administrative expenses, preparation of child study report, preparation of
medical and I.Q. reports, passport and visa expenses and conveyance expenses
and they may be fixed by the Court at such figure not exceeding Rs. 41000 as
may be though fit by the Court. [90 D-H; 91 A-C]
11. Proceedings for appointment of guardian
of the child with a view to its eventual adoption must be disposed of at the 78
earliest and in any event not later than two months from the date of filing of
the application. The High Court should call for returns from the district Court
within their respective jurisdiction showing every two months as to how many
applications for appointment of guardian are pending, when they were filed and
if more than two months have passed since the date of their filing why they
have not been disposed of up to the date of the return. If any application for
guardianship is not disposed of by the district Courts within a period of two
months and there is no satisfactory explanation the High courts must take a
serious view of the matter. [91 E-G]
12. The Court dealing with an application for
appointment of foreign parents as guardian need not insist on the foreign
parents or even one of them coming down to India for the purpose of approving
the child. In case of an older or handicapped child also, it is not necessary
to require the foreign parents to come down to India, because a complete
dossier of the child consisting of photographs, detailed medical report, child
study report and other relevant particulars is always forwarded to the
sponsoring social and child welfare agency in the foreign country and it is
after careful consideration of this dossier and a full and detailed discussion
under the sponsoring social and child welfare agency that the foreign parents
decide to accept the child to be taken in adoption and proceed further in the
matter through the sponsoring social or child welfare agency. [92 D-G]
13. (i) One of the ways in which adoption by
an Indian family can be facilitated is to set up a centralised agency in the
State or even in a large city where there are several social or child welfare
agencies. Each social or child welfare agency must feed information to the
centralised agency in regard to the particulars of the children available with
it for adoption and a combined list of children available for adoption with
various social or child welfare agencies attached or affiliated to the
centralised agency, should be circulated to all such social or child welfare
agencies, so that if any Indian family comes to a social or child welfare
agency for taking a child in adoption, such social or child welfare agency
would be able to give full and detailed information to the Indian family as to
which children are available for adoption and that with what social or child
welfare agency. This procedure has been adopted by social and child welfare
agencies in Bombay.
The Indian Association for Promotion of
Adoption, Bombay has set up a Voluntary Co-ordinating agency on an experimental
basis. The Supreme Court wholly 79 endorses and recommends setting up of such
Voluntary Co- ordinating agency in each State and if circumstances so require
there may even be more than one Voluntary Co- ordinating agencies in a State.
[93 D-H; 94 B]
13. (ii) Where there is a Voluntary
Co-ordinating agency or any other Centralised agency which maintains a register
of children available for adoption as also a register of Indian adoptive
parents, it would be enough to wait for a period of three to four weeks. The
Voluntary Co- ordinating or Centralized agency can immediately contact the
Indian family which is on its register as prospective adoptive parents and
inform them that a particular child is available for adoption. If within a
period of three to four weeks, the child is not taken in adoption by an Indian
family, it should be regarded as available for inter-country adoption. But even
where it is not possible to find and Indian family which is prepared to take a
child in adoption and it is cleared for inter-country adoption, the first
priority for taking the child in adoption should be given to Indians residing
abroad and if no such Indians are available, then to adoptive couples where
atleast one parent is of Indian origin. [94 D-F]
ORIGINAL JURISDICTION:
CMP. Nos. 6726, 6740, 7040, 7422-23, 7870,
7592, 7826 & 8137-38/84 IN Writ Petition (Criminal) No. 1171 of 1982 (Under
Article 32 of the Constitution of India) Petitioner in person, Abdul Khader,
Anil B. Divan, Ms.
Jay Singh " Ms. Kamini Jaiswal, Mrs.
C.M. Chopra, R.N. Poddar, P.H. Parekh, P.K. Manohar, N.M. Ghatate, B.M. Bagaria,
K.L. Rathee, S. Balakrishnan, M.K.D. Namboodiri, Jagdeep Kishore, T.V.S.
Narasimhachari, Sudesh Menon, Ms. Rani Jethmalani, Kailash Yasdev, Ms. Varinda
Grover, Vinod Arya and Mrs. Urmila Kapoor for the applicants.
Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by
BHAGWATI, C.J. This writ petition was initiated on the basis of a letter
addressed by the petitioner complaining of 80 malpractices indulged in by social
organisations and voluntary agencies engaged in the work of offering Indian
children in adoption to foreign parents. Since we found that there was no
legislation enacted by Parliament laying down the principles and norms which
must be observed and the procedure which must be followed in giving an Indian
child in adoption to foreign parents, we entertained the writ petition and
after hearing a large number of social organisations and voluntary agencies
engaged in placement of child in adoption delivered an exhaustive judgment on
6th February, 1984 discussing various aspects of the problems relating to
inter-country adoption and formulating the normative and procedural safeguards
to be followed in giving an Indian child in adoption to foreign parents.
Pursuant to the directions given by us in our
Judgment in this writ petition, the Government of India proceeded to recognise
various social or child welfare agencies in India for the purpose of inter
country adoption. The Government of India also, through its diplomatic missions
abroad, collected names of the social or child welfare agencies in foreign
countries recognised by their respective Governments for sponsoring
applications of foreigners for taking a child in adoption and prepared a list
of such social and welfare agencies. The Government of India also, in obedience
to the directions given by us, circulated copies of the list of foreign social
or child welfare agencies recognised by their respective Governments as also of
the list of social or child welfare agencies recognised by the Government of
India for placement of children in inter-country adoption, to all the High
Courts in the country with a request to the High Courts to send copies of the
two lists to the district Courts within their respective jurisdiction. But it
seems that some of the social or child welfare agencies engaged in placement of
children in inter-country adoption felt that there were certain difficulties in
implementing the principles and norms laid down by us in our judgment and
various applications were therefore made by them asking for clarification and
alteration in the principles an norms adopted and the procedure laid down by
us. These Applications are being disposed of by us by this common judgment.
The first point raised in these applications
relates to the question whether a scrutinizing agency must be distinct from a
placement agency. We entirely agree with the submission made by some social and
child welfare agencies that the scrutinizing agency appointed by the Court for
the purpose of assisting it in 81 reaching the conclusion whether it would be
in the interest of the child to be given in adoption to the foreign parents
must not in any manner be involved in placement of children in adoption. The
scrutinizing agency must be an expert body having experience in the area of
child welfare and it should have nothing to do with placement of children in
adoption for otherwise objective and impartial evaluation may not be possible.
Where therefore there an institution or agency which is engaged in the
placement of children in adoption, it should not be appointed as scrutinizing
agency by the Court. The two scrutinizing agencies usually commissioned by the
Courts are the Indian Council of Social Welfare and the India Council of Child
Welfare. These two institutions or agencies have acquitted themselves very
creditably so far and the Courts may therefore continue to entrust scrutinizing
work to them, but there may also be other scrutinizing agencies which can be
employed for this purpose. They must however be basically child welfare
agencies and must not be engaged in placing children in adoption.
The next point regarding what steps must be
taken where there is disruption in the family of the petitioner need not detain
us. We have already directed in our Judgment that the social or child welfare
agency sponsoring the application must undertake that in case of disruption of
the family of the foreigner before adoption can be effected, it will take care
of the child and find a suitable alternative placement for it with the approval
of the concerned social or child welfare agency in India and report such
alternative placement to the Court handling the guardianship proceedings ant
such information shall be passed on both by Court as also by the concerned
social or child welfare agency in India to the Secretary, Ministry of Social
Welfare, Government of India. We would suggest that additionally the social or
child welfare agency sponsoring the application should also, in the event of
disruption of the family of the foreigner before adoption can be effected, give
intimation of this fact to the Indian Embassy or High Commission as the case
may be, ant the Indian Embassy or High Commission shall also be kept informed
about the whereabouts of the child so that they can take necessary steps for
ensuring that the child is properly taken care of and a suitable alternative
placement for it is found. If a disruption in the family of the foreigner takes
place after the child is adopted, we do not think that anything can be done by
the social or child welfare agency sponsoring the application, because, on
adoption, the child would acquire the nationality of its adoptive parents and
would then be entitled to all the rights to of a national in that country.
82 The third point raised in these
applications relates to the role which a scrutinizing agency is expected to
play in the procedure relating to inter country adoptions. There was
considerable debate before us on this point and after carefully considering the
various arguments we are of the view that the scrutinizing agency should not be
asked to make any inquiries before a child is offered in adoption to a
foreigner or a petition for appointment of a foreigner as guardian is filed in
court. The primary responsibility for ensuring that the child is legally free
for adoption must be that of the social or child welfare agency processing the
application of the foreigner for guardianship of the child.
Whatever inquiries are necessary for the
purpose of satisfying itself that the child has been voluntarily relinquished
by its biological parents after understanding all the implications of adoption
as envisaged in paragraph 14 of our Judgment must be the responsibility of the
social or child welfare agency processing the application for guardianship. We
have already laid down sufficient safeguards in this connection in paragraph 18
or our Judgment and it is not necessary to say anything more about it. But so
far as the scrutinizing agency is concerned it should not come into the picture
at this stage. It has a vital role to play after a foreigner has approved of
the child to be taken in adoption and a petition is filed in court for
appointment of the foreigner as guardian of the child and it is at that stage
that the scrutinizing agency is expected to assist the Court in coming to the
conclusion whether it would be in the interest of the child to be given in
adoption to the foreigner. The scrutinising agency should not at that stage try
to ascertain who are the biological parents of the child and whether they are
willing to take back the child. That is primarily the responsibility of the
social or child welfare agency processing the application and that is why we
have insisted in our Judgment it is only a social or child welfare agency
recognised by the Government which should be entitled to process the
application for guardianship and recognition must be given by the Government
only after considering whether such social or child welfare agency enjoys good
reputation and is known for its work in the field of child care and welfare and
whether it has proper staff with professional social work experience. The Court
should, in order to make sure that the child is legally free for adoption,
require the social or child welfare agency processing the application to place
material before the Court stating what efforts have been made to trace the
biological parents and what are the circumstances in which the child came into
the possession of such 83 social or child welfare agency. Where the Court feels
some doubt as to how the child has been obtained and in what manner, the Court
may ask the scrutinising agency to make inquiries with a view to finding out
how the social or child welfare agency processing the application has got the
child and if the child has been obtained by such social or child welfare agency
from another institution or agency, how that institution or agency got the
child and from what source and in what manner and the scrutinising agency may
them make discreet inquiries for this purpose without disclosing to any one
that the child is sought to be given in adoption.
The Court may also in an appropriate case
where it has some doubt ask the scrutinising agency to inquire whether the
child has been voluntarily surrendered by the biological parents or whether
such relinquishment has been obtained by fraudulent means. But unless the Court
so directs, the scrutinising agency should not make any attempt to trace the
biological parents of the child or to inquire whether they are willing to take
back the child. We may also point out that the scrutinising agency should,
while scrutinising the application, adopt a sympathetic and sensitive approach
with in-depth understanding of the dynamics of human behaviour.
We agree with the point made in some of these
applications that the social or child welfare agency engaged in the work of
placing children in adoption should not readily assume that children including
cradle babies who are found abandoned are legally free for adoption. Such
children must be produced before the Juvenile Court so that further inquiries
can be made and their parents or guardians can be traced. In States where there
is no Children Act in force, such children should be referred to the Social
Welfare Department for making further inquiries and tracing their parents or
guardians. This procedure should be completed at the latest within three months
and no children who are found abandoned should be deemed to be legally free for
adoption until the Juvenile Court or the Social Welfare Department declares
them as destitutes or abandoned. It should also be impressed upon the Juvenile
Courts that when children are selected for adoption, release orders should be
passed by them expeditiously and without delay and proper vigilance in this
behalf must be exercised by the High Courts.
That takes us to the next point raised in
these applications which relates to transfer of children from one State to
another for the purpose of being given in adoption.
We took the view in our Judgment that there
should not be any objection in a 84 child under the care of a social or child
welfare agency or hospital or orphanage in one State being taken to another
State by a social or child welfare agency for the purpose of being given in adoption
because we felt that the procedural safeguards laid down by us would be
sufficient to eliminate the possibility of trafficking in children through
inter- State transfer of children. We pointed out that since we are directing
that every application of a foreigner for taking a child in adoption shall be
routed only through a recognised social or child welfare agency and an
application for appointment of the foreigner as guardian of the child shall be
mate to the Court only through such recognised social or child welfare agency,
there would hardly be any scope for a social or child welfare agency or
individual, who brings the child from another State for the purpose of being
given in adoption, to indulge in trafficking and such a possibility would be
reduced to almost nil. But it has been urged upon us by various social and
child welfare agencies that it may not be desirable to permit a child to be
taken from one State to another for the purpose of being given in adoption
because that would encourage- representatives of foreign agencies as also
unscrupulous persons to go scouting for children to different States and taking
advantage of the poverty of the large masses of people, persuade indingent
parents, by offering monetary inducement, to part with their children ant then
arrange to give such children in inter- country adoption through the
instrumentality of a recognised social or child welfare agency getting in the
process a sizable profit for themselves. This apprehension voiced on behalf of
the social or child welfare agencies is not altogether unjustified- But on that
account alone it would not be right to prevent a child from being taken from
one State to another by a social or child welfare agency for the purpose of
being given in adoption, because at the place where a child is found destitute
or abandoned or where the biological parents, who not being in a position to
support the child are prepared relinquish it for the purpose of its being given
in adoption to a person who can take proper care of it, are living, there may
be no social or child welfare agency which can take the child for being placed
in adoption. There may be a social or child welfare agency in another State
which is in a position to take care of such child and find suitable parents for
giving it in adoption and if that be so, we do not see why such social or child
welfare agencies could not be permitted to take the child from one State to
another for the purpose of being given in adoption rather than leave it to grow
up uncared for in want and destitution. We have laid down considerable
safeguards in 85 paragraph 19 of our Judgment in order to prevent any abuse of
this practice and we are not inclined to interdict it altogether. But we would
direct by way of additional safeguard that no Court in a State will entertain
an application for appointment of a foreigner as guardian of a child which has
been brought from another State, if there is a social or child welfare agency
in that other State which has been recognised by the Government of India for
inter- country adoption. The social or child welfare agency processing the
application for guardianship should then be directed to send the child to the
recognised social or child welfare agency in the other State, so that whatever
proceedings are necessary for giving the child in adoption may be instituted by
that social or child welfare agency and in such an event, the complete details
of the case history and background including the home study report, the child
study report, if any, and all other information relating to the child should be
made available to the later social or child welfare agency. If there is no
recognised social or child welfare agency in the State where the child is found
or obtained, the child shall be transferred to a recognised social or child
welfare agency at the nearest place in the immediate neighbouring State.
There was also one other point raised by some
of the social or child welfare agencies and that was in regard to the reports
to be made by the social or child welfare agency sponsoring the application,
after the foreigner is appointed guardian of the child and he takes the child
to his own country. We directed in our Judgment that the order to be made by
the Court shall include a condition that the foreigner who is appointed
guardian shall submit to the Court as also to the social or child welfare
agency processing the application for guardianship, progress reports of the
child quarterly during the first two years and half yearly for the next three
years. But it was suggested by some social or child welfare agencies that this
direction should be limited only in case of adoption of handicapped children
but so far as normal children were concerned, it would be enough if the
progress reports were submitted for a period of two years or until adoption
whichever event happens later. We do not think we can accept this suggestion
wholly. It is necessary that progress reports must be submitted to the Court
and to the social or child welfare agency in India quarterly during the first
two years and half yearly for the next three years but after adoption had taken
place the Courts may not insist on strict observance of this requirement. We
are of the view that the order to be made by the court should also provide that
progress reports shall be 86 submitted by the social or child welfare agency
sponsoring the application of the foreigner until adoption is effected.
That would provide greater assurance because
it may not be possible to take any action if the foreigner fails to provide
progress reports, but if the social or child welfare agency sponsoring the
application for guardianship fails to submit progress reports, the Court can in
future decline to entertain any application for guardianship where the
foreigner seeking appointment as guardian is sponsored by such social or child
welfare agency.
The next point raised on behalf of some of
the social and child welfare agencies was in regard to the role which the
representatives of foreign agencies should be allowed to play in inter-country
adoption. Now there can be no objection to a foreign child or social welfare
agency having its representative in India. It would undoubtedly help to ensure
proper and timely medical care for the child selected for adoption as also
smooth carrying out of legal formalities in connection with guardianship
proceedings and travel arrangements for the child to go to the country of its
prospective foreign parents and also facilitate communication between the
foreign parents and the sponsoring social or child welfare agency on the one
hand and the social or child welfare agency processing the application for
guardianship on the other. We do not, therefore, see any objection to a foreign
social or child welfare agency having a representative in India, but it is
necessary to lay down certain parameters within which such representative can
be allowed to operate. In the first place, the representative should be an
Indian citizen with a degree or diploma in social work coupled with experience
in child welfare. Secondly the representative should be acting only for one
foreign social or child welfare agency and not more not should he be working on
a free lance basis. It would also be desirable to limit the sphere of operation
of the representative to a particular geographical area so that he is able to
attend to his functions and duties properly and diligently. The representative
should have a general power of attorney to act in India on behalf of the
foreign social or child welfare agency and he should also have the authority to
operate banking accounts in the name of the foreign social or child welfare
agency with the permission of the Reserve Bank of India. We would insist that,
in order to prevent taking of children from needy parents by offering them
monetary inducement and to eliminate trafficking in children, the
representative of the foreign social or child welfare agency should not be
permitted to go scouting for children or to receive children directly from
parents. He should 87 be allowed to act as representative only if he is
recognised as such by the Central Government and such recognition may be given
by the Central Government subject to the condition that the various
requirements set out by us above are complied with by such representative.
We may also point out that if there is a
social or child welfare agency owned or operated by the Government in a foreign
country, it would not be necessary for a foreigner to route his application
through a recognised social or child welfare agency within his country and he
can approach a recognised social or child welfare agency in India through such
Government agency. It seems that in Sweden the Swedish local authority is the
social or child welfare agency through which applications for taking children
in adoption are routed and obviously therefore, the application of a foreigner
who is a national of Sweden can be entertained by a recognised social or child
welfare agency in India, if it is sponsored by the Swedish local authority, we
would also like to make it clear that where there is a Government agency in a
foreign country through which applications for taking children in adoption are
routed, as in Sweden, it may not be possible to insist that the progress
reports in regard to the child should be submitted by the Government agency and
in such a case it may be enough to provide in the order to be made by the Court
that the progress report shall be submitted by the foreign parents through the
Government agency.
Then another point was raised on behalf of
some of the social and child welfare agencies and that related to the direction
given by us in our Judgment that the certificates, declarations and documents
required to be submitted along with the application of the foreigner for taking
a child in adoption should be duly notarised by a Notary Public and the
signature of the Notary Public should be duly attested either by an officer of
the Ministry of External Affairs or Justice or Social Welfare of the country of
the foreigner or by an officer of the Indian Embassy or High Commission or
Consulate in that country. It was suggested on behalf of some social and child
welfare agencies that the requirement that the signature of the Notary Public
should be attested by one of these officials should be dispensed with since lt
was likely to cause considerable impediment in the way of the sponsoring social
or child welfare agency on account of the difficulty in obtaining the
attestation of the signature of the Notary Public by one of these officials.
Some social or child welfare agencies however opposed this 88 suggestion and
submitted that this requirement should be insisted, because in practice it did
not create any difficulty st all. It was said that this requirement is a
healthy safeguard to ensure that the certificates, declarations and documents
submitted along with the application of the foreigner are genuine. We agree
that there is no need to dispense with this requirement. So far, there has been
on difficulty in obtaining the attestation of one of these officials and there is
no reason why this requirement should not be insisted upon. It is undoubtedly
true that some delay might occur in complying with this requirement but such
delay need not worry us, because it will not be long and moreover the procedure
involved in this requirement would have to be followed at a stage before the
child is selected for adoption by the foreigner.
It was also submitted by some of the social
or child welfare agencies that Court, while making an order for appointment of
a foreigner as guardian, should not insist on deposit being made by way of
security for enabling the child to be repatriated to India, should it become
necessary for any reason and instead a bond to be executed by the foreigner
should be sufficient. Now it is true that if security by way of deposit is
insisted upon by the Court, it may cause a certain amount of hardship to the
foreigner because his monies would remain locked up in court and though after
the adoption is effected by him, he would be entitled to return of the amount deposited,
it would be difficult for him to get that amount repatriated to him in the
foreign country. But even so we do not think that we should issue any direction
that deposit should not be insisted upon in any case. It should be a matter to
be decided by the Court in the exercise of its judicial discretion. Of course,
it may not ordinarily insist on making of the deposit by the foreigner but in
an appropriate case, if it so thinks fit, it may pass such an order. The
execution of a bond would ordinarily be sufficient. The bond should be by way
of security for repatriation of the child to India in case it becomes necessary
to do so as also for ensuring adoption of the child within the period of two
years. But a question was raised as to who should be required to execute the
bond. The bond may be executed by the foreigner who is appointed guardian of
the child, but there may be difficulty in enforcing such bond, unless the bond
is executed in favour of the Indian Diplomatic Mission in the country of the foreigner.
It might therefore be safer to take the bond from the representative of the
foreign child or social welfare agency in India so that if the condition of the
bond is violated, the Court can proceed to 89 enforce the bond against such
representative who would be an Indian national. There is also another
alternative which may be adopted by the Court. The Court may take the bond from
the social or child welfare agency which has processed the application and such
social or child welfare agency may in its turn take a corresponding bond from
the sponsoring social or child welfare agency in the foreign country.
Ordinarily the sponsoring social or child
welfare agency would honour the bond in case the condition of the bond is
broken, because if it fails to do so, no recognised social or child welfare
agency in India would in future deal with it. But, though this alternative may,
in a given case, be adopted by the Court, where the recognised social or child
welfare agency processing the application is ready to give the bond, the Court
should not insist upon execution of the bond by such social or child welfare
agency. It would be sufficient to take the bond from the representative of the
foreign social or child welfare agency in India or to insist on the bond being
executed by the foreigner in favour of the Indian Diplomatic Mission abroad.
Some difficulty was pointed out to us that
though ordinarily it should be possible to go through the procedure for
adoption within two years, there may be instances where the procedure may take
longer and in that event, unless there is a relating power, the failure or
inability of the foreigner to complete the adoption process within two years
would result in breach of the condition of the bond and the bond would be
liable to be forfeited. We appreciate that this difficulty may arise in some
exceptional cases and we must therefore provide for such a situation. We would
direct that where it is not possible for the foreigner to complete the adoption
process within two years, an application should be made to the court for
extension of time for making the adoption and the Court may grant appropriate
extension of time.
We may again emphasise, even at the cost of
repetition, that notice of the application for guardianship of a child should
in no case be published in the newspapers, because otherwise the biological
parents would come to know who is the person taking the child in adoption and
they might, with this knowledge, at any time be able to trace the whereabouts
of the child and they may try to contact the child resulting in emotional and
psychological disturbance for the child and the possibility cannot be ruled out
that they may also attempt to extort money from the adoptive parents. No notice
of the application should for the same reasons 90 be issued to the biological
parents and this is particularly important in case of an unwed mother who has
relinquished the child, for to disclose her name to the Court or to give her
notice would be highly embarrassing.
Then a question was raised by some of the
social and child welfare agencies that the sum of Rs. 60 per day fixed by us as
the maximum for reimbursement of maintenance expenses which may be incurred by
a social or child welfare agency on the child was too high and that it should
be reduced to Rs. 500 per month. The argument in favour of reduction of the
maintenance expenses from Rs. 60 per day to Rs. 500 per month was that if such
a high amount was permissible to be charged by way of maintenance expenses,
many social and child welfare agencies engaged in placing children in adoption
would prefer to give the children to foreigners in inter-country adoption
rather than to Indian parents, because the Indian parents would not be in a
position to reimburse maintenance expenses at such a high rate. There is some
force in this contention, but we should like to make it clear that the sum of
Rs. 60 per day, which we have provided, represents the outside limit of the
maintenance expenses which may be recovered from the prospective adoptive parents
and it does not represent the rate at which maintenance expenses should be
recoverable in every case. We have no doubt that the recognised social or child
welfare agency through whom the application for guardianship is processed would
take care to see that no exhorbitant amount is sought to be charged by the
social or child welfare agency looking after the child, by way of maintenance
expenses. But we would by way of greater safeguard direct that when the Court
makes an order appointing a foreigner as guardian, the Court should look into
this question and sanction the amount to be paid by the foreigner to the social
or child welfare agency by way of reimbursement of maintenance expenses and
that only such amount as may be sanctioned by the Court shall be recoverable by
the social. Or child welfare agency by way of maintenance expenses from the
foreigner who is appointed guardian of the child. So far as surgical or medical
expenses incurred on the child are concerned, they should also be recoverable by
the social or child welfare agency against production of bills or vouchers.
This requirement would provide an adequate safeguard against trafficking in
children for money or benefits in kind. The Court would of course, while
granting sanction, take a practical view in this matter, bearing in mind that
many of the social or child welfare agencies running homes for children have
meagre financial resources of their own and 91 have to depend largely on
voluntary donations and unless reasonable maintenance expenses and actual
surgical and medical expenses are allowed to be recovered by them from the
foreigner taking the child in adoption, it might become difficult from them to
survive and to carry on their philanthropic work. The recognised social or
child welfare agency processing the application must also be entitled to
recover from the foreigner who is sought to be appointed guardian of the child,
costs incurred in preparing and filling the application and prosecuting it in
Court. Such expenses may include legal expenses, administrative expenses,
preparation of child study report, preparation of medical and I.Q. reports,
passport and visa expenses and conveyance expenses and they may be fixed by the
Court at such figure not exceeding Rs. 4,000 as may be thought fit by the
Court.
Some social and child welfare agencies made a
complaint before us that the proceedings for appointment of a prospective
adoptive parent as guardian of the child drag on for months and months in some
district Courts and almost invariably they take not less than five to six
months. We do not know whether this is true, but if it is, we must express our
strong disapproval of such delay in disposal of the proceedings for appointment
of guardian. We wish to impress upon the district Courts that proceedings for
appointment of guardian of the child with a view to its eventual adoption, must
be disposed of at the earliest and in any event not later than two months from
the date of filing of the application. We would request the High Court to call for
returns from the district Courts within their respective jurisdiction showing
every two months as to how many applications for appointment of guardian are
pending, when they were filed and if more than two months have passed since the
date of their filing, when they have not been disposed of up to the date of the
return. If any application for guardianship is not disposed of by the district
Courts within a period of two months and there is no satisfactory explanation,
the High Courts must take a serious view of the matter. We were also informed
that some district Courts are treating applications for guardianship in a
lackadaisical manner and are not scrupulously carrying out the directions given
by us in our judgment. This defiance by the district Courts of the directions
given by us should not be tolerated by the High Courts and we would request the
High Courts to exercise proper vigilance in this behalf.
There is also one other point which must be
considered at this stage. Some social and child welfare agencies appearing 92
before us pointed out that there were instances where the Courts required the
foreign parents wishing to take a child in adoption to come down to India for
the purpose of meeting the child before approving the child for adoption. This
insistence on the foreign parents coming down to India for giving their
approval to the child to be taken in adoption, it was pointed out, is causing
considerable hardship and inconvenience to the foreign parents, sometimes
leading to the unfortunate situation that the foreign parents who are unable to
come down to India might give up the idea of taking the child in adoption.
There is considerable force in this argument urged on behalf of the social and
child welfare agencies. It is obvious that foreign parents who belong to the
middle class group would find it difficult to come down to India for the
purpose of seeing the child. In the first place, it would impose on them a
certain amount of financial burden which may be irksome and sometimes,
untolerable and secondly, it would be difficult for them to leave their place
of work for the purpose of coming down to India, because they may not be able
to get leave form their employer and if they have their own natural children,
it may be difficult for them to leave their children behind by reason of there
being no one to care of them. The Court dealing with an application for
appointment of foreign parents as guardian need not therefore insist on the
foreign parents or even one of them coming down to India for the purpose of
approving the child. We are told that the Courts sometimes insist on the
foreign parents coming down to India for the purpose of seeing the child where
the child is an older or handicapped child. But even in such cases it is not
necessary to require the foreign parents to come down to India, because a
complete dossier of the child consisting of photographs, detailed medical
report, child study report and other relevant particulars is always forwarded
to the sponsoring social and child welfare agency in the foreign country and it
is after careful consideration of this dossier and a full and detailed
discussion under the sponsoring social and child welfare agency that the
foreign parents decide to accept the child to be taken in adoption and proceed
further in the matter through the sponsoring social or child welfare agency. We
would therefore suggest that, as far as possible, the foreign parents or even
one of them need not be required to come down to India for the purpose of
approving the child. Otherwise many foreign parents desiring to adopt an older
or handicapped child might be deterred from doing so and such children who are
ordinarily not favoured for adoption by Indian parents would be left without
the warmth of family life.
93 That takes us to the last point raised on
behalf of some of the social and child welfare agencies namely, that every
effort must be made to give a child in adoption to Indian parents before
considering the possibility of placing it in adoption with foreign parents. We
pointed out in our Judgment that before any application of a foreigner for
taking an Indian child in adoption is considered, every effort must be made by
the recognised social ant child welfare agency to find out placement for the
child by adoption in an Indian family and whenever any Indian family approached
a recognised social or child welfare agency for taking a child in adoption,
facilities must be provided by such social or child welfare agency to the
Indian family to have a look at the children available with it for adoption and
if the Indian family want to see the child study report in respect of
particular child, such child study report must also be mate available to the
Indian family in order to enable the Indian family to decide whether they would
take the child in adoption. But the question is as to how this can be tone
efficiently ant without any avoidable delay. One of the ways in which adoption
by an Indian family can be facilitated is to set up a centralised agency in the
State or even in a large city where there are several social or child welfare
agencies. Each social or child welfare agency must feed information to the
centralised agency in regard to the particulars of the children available with
it for adoption and a combined list of children available for adoption with
various social or child welfare agencies attached or affiliated to the
centralised agency, should be circulated to all such social or child welfare
agencies, so that if any Indian family comes to a social or child welfare agency
for taking a child in adoption, such social or child welfare agency would be
able to give full and detailed information to the Indian family as to which
children are available for adoption and with what social or child welfare
agency. We are glad to find that the procedure had been adopted by social and
child welfare agencies in Bombay. The Indian Association for Promotion of
Adoption, Bombay has set up a Voluntary Co-ordinating agency on an experimental
basis and Social and Child Welfare Agencies in Maharashtra and especially in
Amrawati, Bombay, Nasik, Nagpur and Pandharpur have joined this Voluntary
Co-ordinating. These social or child welfare agencies send to the Voluntary Co-
ordinating agency particulars of children available with them for adoption and
the Voluntary Co-ordinating agency maintains a register showing the names and
particulars of such children and in addition, it also maintains a register of
Indian adoptive parents. The Voluntary Co-ordinating agency thus serves as a 94
Co-ordinating agency to promote Indian adoptions and all children registered
with the Voluntary Co-ordinating agency remain on its list for three months
awaiting Indian parents.
If Indian parents are not available for a
particular child for a period of 3 months, such child is cleared for inter-
country adoption. It would be desirable for social and child welfare agencies
in other States also to form a similar Voluntary Co-ordinating agency. We
wholly endorse and recommend setting up of such Voluntary Co-ordinating agency
in each State and if circumstances so require, there may even be more than one
Voluntary Co-ordinating agencies in a State. The only caveat which we would
like to enter is that the period of three months adopted by the Voluntary Co-
ordinating agency in Bombay for awaiting the arrival of Indian parents for
taking a child in adoption, is perhaps too long. We have in our Judgment
observed that is only if no Indian family comes forward to take a child in
adoption within a maximum period of two months, that the child may be regarded
as available for inter-country adoption. But on further reflection we are of
the view that even this period of two months may be regarded as a little too
long. Where there is a Voluntary Co-ordinating agency or any other Centralised
agency which maintains a register of children available for adoption as also a
register of Indian adoptive parents, it would be enough to wait for a period of
three to four weeks. The Voluntary Co-ordinating or Centralised agency can
immediately contact the Indian family which is on its register as prospective
adoptive parents and inform them that a particular child is available for
adoption. If within a period of three to four weeks, the child is not taken in
adoption by an Indian family, it should be regarded as available for
inter-country adoption. But even where it is not possible to find an Indian
family which is prepared to take a child in adoption and it is cleared for
inter-country adoption, the first priority for taking the child in adoption should
be given to Indians residing abroad and if no such Indians are available, then
to adoptive couples where atleast one parent is of Indian origin.
These were the only points raised for our
consideration in the applications made on behalf of the various social and
child welfare agencies. We have dealt with these points in some detail and we
hope and trust that hereafter there will be no difficulty in faithfully
implementing the directions given by us.
M.L.A.
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