Laxmi Kant Pandey Vs. Union of India
[1986] INSC 254 (3 December 1986)
BHAGWATI, P.N. (CJ) BHAGWATI, P.N. (CJ) MISRA
RANGNATH
CITATION: 1987 AIR 232 1987 SCR (1) 383 1987
SCC (1) 66 JT 1986 950 1986 SCALE (2)913
ACT:
Children--Adoption by Indian/Foreign
parents--Guide- lines/directions given to the Scrutinising Agencies with regard
to its services and remuneration.
Foster Care Homes & Recognised Placement
Agencies--Duty to exchange with one another information regarding Indian
Parents wishing to adopt Indian children.
Abandoned/destitute children--Duty of
Hospitals/Nursing Homes to inform Social Welfare Department/Collector regarding
discovery or find of such children.
Hindu Adoptions & Maintenance Act, 1956,
s.9(4)--Adoption of children--Notice of application--Publication of--Notice
need not be published.
Juvenile Courts--Abandoned/destitute
children--Declaration of--Release order--Juvenile Court to complete inquiry
within one month & pass the order--High Court to supervise proper vigilance
over Juvenile Courts--Release Order--When can be dispensed with.
Recognised placement agencies--Duty of
Government to publish lists every year--Recognised placement Agencies entitled
to recover its costs incurred in processing the application from the foreigner.
HEADNOTE:
The Supreme Court in the judgment of Laxmi
Kant Pandey v. Union of India dated 6th February, 1984 and the supple- mental
judgment dated 27th September, 1985 had formulated the normative and procedural
safeguards to be followed in giving an Indian child in adoption to foreign
parents. Since there were certain difficulties in implementing the afore- said
norms and principles, the petitioners moved the present criminal miscellaneous
petitions for seeking clarification/further directions in the matter.
Disposing of the petitions, 384
HELD: 1. When the court makes an order
appointing a foreign parent as guardian of a child with a view to its eventual
adoption in the foreign country, the court will provide that such amount shall
be paid to the scrutinising agency for its services as the court thinks
reasonable having regard to the nature of the case and the extent and volume of
the services rendered by the scrutinising agency.
In case of an application for appointment of
a foreign parent as guardian of a child the Court would be justified in
directing payment of any reasonable amount varying be- tween Rs.450 and Rs.500
but in appropriate cases where the courts so think fit. such amount may even
exceed Rs.500.
This amount shall be directed to be paid to
the scrutinising agency by the recognised placement agency and such placement
agency shall have the right to recover such amount from the foreign parent
whose application for guardianship it has processed. This direction will also
apply mutaris mutandis in cases where an Indian parent makes an application for
appointing himself or herself as guardian of a child or a Hindu parent applies
for permission to adopt a child under s.9 sub-s.(4) of the Hindu Adoptions and
Maintenance Act, 1956 and the case is referred to a scrutinising agency by the
Court, but in such cases the amount to be fixed by the Court for meeting the
expenses of the scrutinising agency shall not exceed Rs.150. [387G -- 388C]
2.1 All nursing homes and hospitals which
come across abandoned or destitute children or find such children aban- doned
in their precincts or otherwise shall immediately give information in regard to
the discovery or find of such children to the Social Welfare Department of the
concerned Government where such nursing homes or hospitals are situate in the
capital of the State and in other cases to the Col- lector of the District and
copies of such intimation will also be sent to the Foster Care Home where there
is such a home run by the Government as also to the recognised place- ment
agencies functioning in the city or town where such nursing homes or hospitals
are situate. [388F -- G]
2.2 Each Indian parent who is registered with
the Foster Care Home or a recognised placement agency as a prospective parent
wishing to take a child in adoption and who has been informed by the recognised
placement agency that a child is available for adoption will be entitled to
information about all the children available for adoption in the group speci-
fied by him, according to the consolidated list maintained by the recognised
placement agency. [389B]
3. The Supreme Court had directed in paragraph
22 of the main judgment that the notice of the application for guard- ianship
in cases of adoption by foreign parents should not be published in any
newspaper because otherwise the biologi- cal parents would come to know as to
who are the parents taking the child in adoption. This.direction must also
cover the cases where 385 Hindu Parents make an application under s.9 sub-s.(4)
of the Hindu Adoptions and Maintenance Act, 1956. [389D -- E]
4. No recognised placement agency shall make
and process an application for appointment of a foreigner as guardian of a
child with a view to its eventual adoption, unless the child has been in the
custody of the recognised placement agency for a period of at least one month
before the making of the application and it shall not be permitted to act
merely as a post office or conduit pipe for the benefit of an unrecognised
agency. [390D -- E]
5. Whenever a child is produced before the
Juvenile Court by a recognised placement agency for a release order declaring
that the child is abandoned or destitute so as to be legally free for adoption,
the Juvenile Court must in all such cases complete the inquiry within one month
from the date of the application and proper vigilance should be exercised by
the High Court. High Courts should call for monthly reports from the Juvenile
Courts stating as to how many applications for release orders, that is, for
declaring children abandoned or destitute, are pending before each Juvenile
Court, when they were filed and if they have not been disposed of within one
month, what is the reason for the delay. Where the Juvenile Court is not in
existence, application for release order is required to be made to the Social Welfare
Department in the capital of the State or to the Collector of the District in
other places. The Social Welfare Department or the Collector, as the case may
be, will dispose of such application within one month of its making. [391B --
D, F]
6. The Court entertaining an application for
appointment of a foreigner as guardian of a child should not require the
representative,of the recognised placement agency processing the application to
join the application as a co-petitioner nor should the court insist on
appointing such representa- tive as joint guardian of the child alongwith the
foreigner.
[392C]
7. Where a child is relinquished by its
biological parents or by an unwed mother under a Deed of Relinquishment
executed by the biological parents or the unwed mother it should not be
necessary to go through the Juvenile Court or the Social Welfare Department or
the Collector to obtain a release order declaring the child free for adoption
but it would be enough to produce the Deed of Relinquishment before the court
which considered the application for appointment of a foreigner as guardian of
the child. [393B]
8.1 Where an abandoned or destitute child is
found by a recognised placement agency or is brought to it by another social or
child welfare agency or individual it should be open to such recognised
placement agency to transfer the child to its branch in another State after the
completion of the inquiry by the 386 juvenile court or Social Welfare
Department or the Collec- tor, as the case may be. Where such recognised
placement agency has an associate social or child welfare agency in another
State, it should be open to the recognised placement agency to transfer the
child to such associate social or child welfare agency in the other State,
provided firstly, that the inquiry is complete by the juvenile court or the
Social Welfare Department or the Collector and a release order is passed, and
secondly, the associate social or child welfare agency has been notified by the
recognised placement agency as its associate to the Government of the State
where the recognised placement agency is functioning as also to the Government
of the State where the associate social or child welfare agency is operating.
If, for any compelling reason, it becomes necessary for the recognised
placement agency to transfer a child either to its own branch or to an
associate social or child welfare agency before completion of the inquiry by
the juvenile court or the Social Welfare Department or the Collector, as the
case may be, the recog- nised placement agency shall be allowed to do so after
obtaining permission of the juvenile court or the Social Welfare Department or
the Collector in that behalf. [394E -- 395A]
8.2 The Government of India is directed (i)
to publish at least once in a year a list of recognised placement agencies and
all their associate social or child welfare agencies operating in each State in
two leading newspapers;
and (ii) to send to the District Courts in
each State through the High Court a list of the recognised placement agencies
functioning within the State together with the names and particulars of their
associate social or child welfare agencies. Such list must be supplied to the
District Judges at least Once in a year and whenever any changes or modifications
are made in the list, such change or modifica- tions most be intimated to the
District JUdges through the High Court. [395 B -- C]
9. The recognised placement agency processing
the appli- cation of a foreigner for being appointed guardian of a child with a
view to its eventual adoption, should be enti- tled to recover from the
foreigner, cost incurred in prepar- ing and filing the application and
prosecuting it in court including legal expenses, administrative expenses
prepara- tion of child study report, preparation of medical and I.Q.
Reports, passport and visa expenses and
conveyance expenses and that such expenses may be fixed by the court at a
figure not exceeding Rs.6000. [395F]
10. In case of a foreigner who has been
living in India for one year or more, the home-study report and other con-
nected documents may be allowed to the prepared by the recognised placement
agency which is processing the applica- tion of such foreigner for guardianship
of a child with a view to its eventual adoption and that in such a case the
court should not insist on sponsoring of such foreigner by a social or child
welfare agency based in the 387 country to which such foreigner belongs nor
should a home- study report in respect of such foreigner be required to be obtained
from any such foreign social or child welfare agency. [396B]
11. The court entertaining an application on
behalf of a foreigner for being appointed guardian of a child with a view to
its eventual adoption need not insist on security or cash deposit or bank
guarantee and it should be enough if a bond is taken from the recognised
placement agency which is processing the application and such recognised
placement agency may in its turn take a corresponding bond from the sponsoring
social or child welfare agency in the foreign country. [396D -- F]
ORIGINAL JURISDICTION: Criminal Misc.
Petition No. 6693 of 1986 etc. in Writ Petition (Crl) No. 1171 of 1982.
Under Article 32 of the Constitution of
India.
Petitioner-in-person.
B. Datta, Additional Solicitor General,
Jagdeep Kishore, T.V.S.N. Chari, Ms. K. Jaiswal, D.N. Mishra, B.M. Bagaria,
P.H. Parekh, M.K.D. Namboodri, Kailash Vasdev, H.K. Puri, R.K. Mehta, S.
Kaushal and C.V.S. Rao for the Respondent/Applicant.
The Judgment of the 'Court was delivered by
Crl. M.P. No. 3141/86 BHAGWATI, C J: This application has been filed by the
Indian Council for Child Welfare for obtaining a direction that when it is
required to act as a scrutinising agency by the Court, a certain amount should
be directed to be paid to it for the scrutinising services rendered by it,
since the scrutinising services would require employment of staff and other
necessary expenditure. Though this application is made only by the Indian
Council for Child Welfare, we apprehend that all other scrutinising agencies
must also be facing the same difficulty. We would therefore direct that when
the Court makes an order appointing a foreign parent as guardian of a child
with a view to its eventual adoption in the foreign country, the Court will
provide that such amount shall be paid to the scrutinising agency for its
services as the Court thinks reasonable, having regard to the nature of the
case and the extent and volume of the services rendered by the scrutinising
agency. We think that in the case of an application for appointment of a
foreign parent as guardian of a child the Court would be justified in directing
payment of any reasonable amount varying between 388 Rs.450 and Rs.500 but in
appropriate cases where the Court so thinks fit, such amount may even exceed
Rs.500. This amount shall be directed to be paid to the scrutinising agency by
the recognised placement agency which has proc- essed the application of the
foreign parent for being ap- pointed guardian of the child with a view to its
eventual adoption and the such placement agency shall have the right to recover
such amount from the foreign parent whose appli- cation for guardianship it has
processed. This direction will also apply mutatis mutandis in cases where an,
Indian parent makes an application for appointing himself or her- self as
guardian of a child or a Hindu parent applies for permission to adopt a child
under section 9 sub-section (4) of the Hindu Adoptions and Maintenance Act,
1956 and the case is referred to a scrutinising agency by the Court, but in
such cases the amount to be fixed by the Court for meet- ing the expenses of
the scrutinising agency shall not exceed Rs.150. Both in the case of an
application on behalf of a foreign parents as also in the case of an
application on behalf of an Indian or Hindu parent, a copy of the order made by
the Court appointing the scrutinising agency shall be supplied to the
scrutinising agency immediately after the order is made, together with the
papers and documents sub- mitted to the Court in support of the application for
ap- pointment of guardian or for permission to adopt.
Crl M.P. No. 3142/86 This application has
been made by the petitioner since according to the petitioner there have been
instances of illegal sales of babies. We may point out that by its very nature
it is not possible to devise a fool-proof formula which will in all cases
prevent illegal sales of babies but a procedure can and must be formulated which
will definitely reduce the possibility of such illegal sales. With this end in
view, we would direct that all nursing homes and hospi- tals which come across
abandoned or destitute children or find such children abandoned in their pre
points or other- wise shall immediately give information in regard to the
discovery or find of such children to the Social Welfare Department of the
concerned Government where such nursing homes or hospitals are situate in the
capital of the State and in other cases to the collector of the District and
copies of such intimation will also be sent to the Foster Care Home where there
is such a home run by the Government as also to the recognised placement
agencies functioning in the city or town where such nursing homes or hospitals
are situate. The Social Welfare Department has also the Collector of the
District will take care to ensure that this direction given by us is followed
by the nursing homes and hospitals within their jurisdiction and if necessary
intimation in regard to the discovery or find of abandoned or destitute
children, if not sent by any particular nursing homes or hospitals to the
Foster Care Home and the recog- nised placement agencies shall be forwarded to
them by the Social Welfare Department and the Collector of the District.
389 The Foster Care Home run by the
Government as also the recognised placement agencies in the capital of the
State or in the District will also exchange with one another informa- tion
regarding Indian parents who wish to take children in adoption so that the
Foster Care Home as also each recog- nised placement agency will have a
consolidated list of such Indian parents. Each Indian parent who is registered
with the Foster Care Home or a recognised placement agency as a prospective
parent wishing to take a child in adoption and who has been informed by the
recognised placement agency that a child is available for adoption will be
entitled to information about all the children available for adoption in the
group specified by him, according to the consolidated list maintained by the
recognised placement agency.
CrL M.P. No. 4455/86 This Court directed in
paragraph 22 of the main judgment dated 6th February 1984 that the notice of
the application for guardianship should not be published in any newspaper and
this was reiterated in the Supplementary Judgment dated 27th September, 1985,
because otherwise the biological parents would come to know as to who are the
parents taking the child in adoption. The question raised in the present application
is as to whether this direction should be con- fined only to cases of adoption
by foreign parents or it should be extended to cover cases where Hindu parents
seek to take a child in adoption and make an application to the Court for that
purpose. We are of the view that having regard to the object and purpose for
which this direction has been given, it cannot be confined to the case of adop-
tion by foreign parents. It must also cover the cases where Hindu Parents make
an application under section 9 sub-sec- tion (4) of the Hindu Adoptions and
Maintenance Act, 1956.
We would, therefore, clarify the direction
given by us and direct that notice of an application under Section 9 sub-
section (4) of the Hindu Adoptions and Maintenance Act, 1956 will also not be
published in any newspaper. The present application will stand disposed of
accordingly.
Crt M.P. 4064/86 This application has been
filed by the Karnataka State Council for Child Welfare complaining that the
object and purpose for which various directions were given by this Court in its
main Judgment dated 6th February, 1984 and the supplemental Judgment dated 27th
September, 1985 is being defeated by the practice which has been adopted in
some places in the State of Karnataka where unrecognised agencies are using
recognised placement agencies as post offices for processing cases in respect
of children which are in the custody of the unrecognised agencies and with
which the recognised placement agencies have nothing to do. The result of this
practice is that the recognised placement 390 agencies merely act as conduit
pipes for making and process- ing applications for appointment of a foreigner
as guardian of a child, even though the child is not with them at all and they
are not even in contact with the foreign sponsoring agency or the foreigner
wishing to take the child in adop- tion. This practice, if it is prevalent in
any part of the State of Karnataka or for that matter, in the country, must
meet with our disapprobation. It is the recognised placement agency which has
to prepare the child study report including the medical report for submission
to the Court alongwith the application for appointment of the foreigner as
guardian of the child and this obviously cannot be done unless the child is
with the recognised placement agency, because the recog- nised placement agency
has to observe the child and gather full information about it in order to be
able to make the report for submission to the Court. The recognised placement
agency must therefore necessarily have the custody of the child for a period of
at least one month before it can prepare d really genuine and satisfactory
child study report alongwith the medical report. If we permit the recognised
placement agency to act merely as post office or conduit pipe for making and
processing an application for guardian- ship on behalf of an unrecognised
agency, it would lead to manifold evils which it has been our endeavour to
eliminate.
We would therefore direct that no recognised
placement agency shall make and process an application for appointment of a
foreigner as guardian of a child with a view to its eventual adoption, unless
the child has been in the custody of the recognised placement agency for a
period of at least one month before the making of the application and it shall
not be permitted to act merely as a post office or conduit pipe for the benefit
of an unrecognised agency.
Crl. M.P. No. 4065/86 This application of the
Delhi Council for Child Welfare seeks clarification in respect of certain
observations made by this Court in paragraph 6 of the supplemental judgment
dated 27th September 1985. This Court, while providing that children who are
found abandoned should not be assumed to be free for adoption but they must be
produced before the Juvenile Court so that further inquiries can be made and
their parents or guardians can be traced, directed the Juvenile Courts
"that when children are selected for adop- tion, release order should be
passed by them expeditiously and without delay and proper vigilance in this
behalf must be exercised by the High Court". The Delhi Council for Child
Welfare has pointed out in this application made by it for clarification that
the Juvenile Courts are construing this observation literally and mechanically
and are taking the view that release orders in respect of the children produced
before them are to be passed "expeditiously and without delay" only
in cases where it can be said that the children "are selected for
adoption" and since no child can possibly be offered in adoption unless it
is 391 declared legally free for adoption by the Juvenile Court, this direction
given by the court for expeditious passing of release orders in cases where
"children are selected for adoption" has become meaningless and
futile and the Court should suitably modify it. This contention raised on
behalf of the Delhi Council for Child Welfare is well-founded, because
obviously no child can be offered for adoption unless the release order is
passed in respect of it and it would therefore be futile to provide that
release order shall be passed expeditiously and without delay in case of
children selected for adoption. We would therefore modify this direction given
by us in paragraph 6 of the supplemen- tal Judgment dated 27th September 1985
by providing that whenever a child is produced before the Juvenile Court by a
recognised placement agency for a release order declaring that the child is
abandoned or destitute so as to be legally free for adoption, the Juvenile
Court must in all such cases complete the inquiry within one month from the
date of the application and proper vigilance should be exercised by the High
Court for the purpose of ensuring that this new direc- tion given by us is
complied with by the Juvenile Courts. We would ask the High Courts to all for
monthly reports from the Juvenile Courts stating as to how many applications
for release orders, that is, for declaring children abandoned or destitute, are
pending before each Juvenile Court, when they were filed and if they have not
been disposed of within one month, what is the reason for the delay. We are
very anxious that in respect of abandoned or destitute children, there should
be no undue delay in offering them for adoption to Indian parents and, failing
Indian parents, to foreign parents, because it is absolutely essential that
such chil- dren should be able to secure love and affection of adoptive parents
at the earliest. Indeed, nothing can take the place of love and affection of
parents and every effort must therefore be made to see that no procedural
delays hold up the process of such children being taken in adoption. This new direction
given by us will also be applicable in cases where, the Juvenile Court not
being in existence, applica- tion for release order is required to be made to
the Social Welfare Department in the capital of the State or to the Collector
of the District in other places. The Social Wel- fare Department or the
Collector, as the case may be, will dispose of such application within one
month of its making.
Crl. M.P. No. 6693/85 There were several
points raised in this application filed on behalf of Church of North India,
Holy Cross Social Service Centre, Missionaries of Charity and Delhi Council for
Child Welfare. The first point related to a practice which is being followed in
Delhi in regard to making of an application. for appointment of a foreigner as
guardian of a child with a view to its eventual adoption. The practice which is
followed in Delhi is that the application for appointment of a foreigner as
guardian is required to be signed by the representative of the recognised
placement agency not only as Attorney of the 392 foreigner but also in his
personal capacity, so that the application becomes an application for
appointment of the foreigner as well as the representative of the recognised
placement agency as joint guardians of the child. The Court granting the
application also appoints the foreigner as well as the representative of the
recognised placement agency as joint guardians and both continue as joint
guardians until the child is adopted by the foreigner in his own country.
This procedure entails a continued obligation
on the part of the recognised placement agency which is totally unnecessary and
in fact, such procedure is not followed in any other part of the country. It
would in our opinion be sufficient to ensure the eventual adoption of the child
and its proper care and welfare in the meantime, if a bond is taken from the
recognised placement agency to secure performance of the obligations and
conditions laid down by the Court. We would therefore direct that the court
entertaining an application for appointment of a foreigner as guardian of a
child should not require the representative of the recognised placement agency
processing the application to join the application as a co-petitioner nor
should the court insist on appointing such representative as joint guardian of
the child alongwith the foreigner. Where a representative of the recognised
placement agency has already been appointed joint guardian prior to the making
of this Order, he or she will stand discharged on the child being adopted by
the foreign par- ents.
The second point raised on behalf of the
applicants was in regard to the delay which is at present occurring in the
procedure forgiving a child in adoption to a foreigner in view of the time
schedule fixed by the court in the main judgment dated 6th February, 1984 and
the supplemental judgment dated 27th September 1985. The applicants contended
that the entire process laid down by the court is a long- drawn out process
running into a period of about 8 to 9 months and that would defeat the object
of expedition in giving a child in adoption. The applicants pointed out that
under our judgments, where there is a child surrendered by the biological
parents, a minimum period of three months is allowed to the biological parents
to reconsider their deci- sion and in case of an abandoned or destitute child,
a period of three months is provided for the Juvenile Court, Social Welfare
Department or the Collector to clear the child and declare it free for adoption
and after the child is declared free for adoption, a maximum period of two
months is provided to find an Indian family for the child--which period is now
curtailed to three to four weeks--and thereafter it takes another four weeks in
mail for sending the child study and medical reports to the sponsoring agency
abroad for being handed over to the for- eigner for his approval and awaiting
the receipt of approval and then a further period of two months is allowed for
the court to process the case and thereafter on an average it takes another
month or more to get the passport and visa formalities completed. It thus takes
about 8 to 9 months after the abandonment of the child before the child is able
to join its adoptive parents.
393 This is, according to the applicants, too
long a period and the directions given by us should be modified with a view to
curtailing this period. We agree that the point raised on behalf of the
applicants deserves serious consideration. We would therefore direct that in
cases where a child is relinquished by its biological parents or by an unwed
mother under a Deed of Relinquishment executed by the biological parents or the
unwed mother it should not be necessary to go through the Juvenile Court or the
Social Welfare Department of the Collector to obtain a release order declaring
the child free for adoption but it would be enough to produce the Deed of
Relinquishment before the court which consider the application for appointment
of a foreigner as guardian of the child. It is only where a child is found
abandoned or is picked up as a destitute that the procedure of going through
the Juvenile Court or the Social Welfare Department or the Collector would have
to be adopted. As soon as abandoned or destitute child is found by a social or
child welfare agency, a report should be immediately lodged with the local
police station along with a photograph of the child. The Inspector General of
Police or the Commissioner of Police, as the case may be, should instruct every
police station within his jurisdiction to immediately undertake an inquiry for
the purpose of ascertaining and tracing the parents of the child in respect of
which the report is made and such inquiry must be completed within one month of
the report being lodged with the police station. Meanwhile, the social or child
welfare agency which has found the abandoned or destitute child may make an
application to the Juvenile Court or to the Social Welfare Department or the
Collector, as the case may be, for a release order declaring that the child is
legally free for adoption and since the report the inquiry to be made by the
police has under this direction to be completed within one month, it should be
possible for the Juvenile Court or the Social Welfare Department or the
Collector to make a release order declaring the child legal- ly free for
adoption within a period of five weeks from the date of making the application.
If, as a result of the inquiry by the police the biological parents are traced,
the Juvenile Court or the Social Welfare Department or the Collector, as the
case may be, will issue a notice to the biological parents and give them an
opportunity to reconsid- er their decision after explaining the implications of
the child being declared legally free for adoption. But, this opportunity shall
be availed of by the biological parents within a period of one week and no
more. This procedure will considerably reduce the time taken up in giving an
opportu- nity to the biological parents to reconsider their decision as also in
getting the child cleared for adoption by the Juvenile Court or the Social
Welfare Department or the Collector. Whilst the application for a release order
is pending before the Juvenile Court or the Social Welfare Department or the
Collector, the recognised placement agency which has found the child or to
which the child is trans- ferred by the social or child welfare agency finding
the child, may proceed to explore the possibility of offering the child in
adoption and the child may be offered simultaneously to Indian parents as well
as foreign 394 parents, subject to the clearance of the child for adoption by
the Juvenile Court or the Social Welfare Department or the Collector; The
recognised placement agency need not wait until the release order is made by
the Juvenile Court or the Social Welfare 'Department or the Collector, before
offering the child in adoption, because otherwise even with the reduced time
limit which we have now provided, it would take at least six weeks before the
child can be offered in adop- tion. This time-lag of six weeks can be
eliminated if the child is allowed to be offered in adoption even while the
application for release order is pending and this would also eliminate the
delay of about two months which would occur if the child is not allowed to be
offered in adoption to the foreign parents until after the effort to find an
Indian parent for the child has failed. If this procedure is fol- lowed, it
should be possible to find an Indian parent or, failing that, a foreign parent
to take the child in adoption within a period, of about 6 to 8 weeks from the
time when the abandoned or destitute child is formed by the concerned social or
child welfare agency. We are informed that this procedure is already being
followed in Bombay and, in our view, it should be adopted in all jurisdictions.
We then turn to the third point raised on
behalf of the applicants and that relates to transfer of children from one
State to another for the purpose of being given in adoption.
We have already dealt with this subject in
paragraph 7 of the supplemental judgment dated 27th September 1985 and we do
not propose to depart from what we have said in that paragraph of the judgment.
But we should like to make it dear that where an abandoned or destitute child
is found by a recognised placement agency or is brought to it by another social
or child welfare agency or individual, it should be open to such recognised
placement agency to transfer the child to its branch in another State after the
completion of the inquiry by the Juvenile Court or Social Welfare Depart- ment
or the Collector, as the case may be. Where such recog- nised placement agency
has an associate social or child welfare agency in another State, it should be
open to the recognised placement agency to transfer the child to such associate
social or child welfare agency in the other State, provided firstly, that the
inquiry is complete by the Juve- nile Court or the Social Welfare Department or
the Collector and a release order is passed, and secondly, the associate social
or child welfare agency has been notified by the recognised placement agency as
its associate to the Govern- ment of the State where the recognised placement
agency is functioning as also to the Government of the State where the
associate social or child welfare agency is operating. If, for any compelling
reason, it becomes necessary for the recognised placement agency to transfer a
child either to its own branch or 'to an associate social or child welfare
agency before completion of the inquiry by the Juvenile COurt or the Social
Welfare Department or the Collector, as the case may be, the recognised
placement agency shall be allowed to do so after obtaining permission of the
Juvenile 395 Court or the Social Welfare Department or the Collector in that
behalf.
We would also direct the Government of India
to publish at least once in a year a list of recognised placement agencies and
their associate social or child welfare agen- cies operating in each State in
two leading newspapers having wide circulation in that State, one in the
English language and the other in the regional language of that State, so that
the people may know which are the recognised placement agencies and their
associates which are function- ing in that State. We would also direct the
Government of India to send to the District Courts in each State through the
High Court a list of the recognised placement agencies functioning within the
State together with the names and particulars of their associate social or
child welfare agencies. Such list must be supplied to the District Judges at
least once in a year and whenever any charges or modifi- cations are made in
the list, such changes/or modifications must be intimated to the District
Judges through the High Court.
One other point raised on behalf of the
applicants was that the outer limit of Rs.4,000 fixed by the Court in the
supplemental judgment dated 27th September 1985 for reim- bursement of expenses
including legal expenses, administra- tive expenses, preparation of child study
report, prepara- tion of medical and I.Q. Reports, passport and visa expenses
and conveyance expenses, was inadequate, particularly having regard to the high
fees charged by lawyers and increase in the visa charges for United States and
some other countries and that this outer limit should, therefore, be raised
from Rs.4,000 to Rs.6,000. There is force in this submission made on behalf of
the applicants, because there is no doubt that the fees of lawyer have gone up
quite high and the visa expenses have also more than doubled in recent times.
We, therefore, agree that the recognised placement agency proc- essing the
application of a foreigner for being appointed guardian of a child with a view
to its eventual adoption, should be entitled to recover from the foreigner, cost
incurred in preparing and filing the application and prose- cuting it in court
including legal expenses, administrative expenses, preparation of child study
report, preparation of medical and I.Q. reports, passport and visa expenses and
conveyance expenses and that such expenses may be fixed by the court at a
figure not exceeding Rs.6000.
The applicants also drew our attention to the
case of foreigners living in India for one or more years and stressed the
difficulty involved in requiring their cases to be sponsored by a foreign
social or child welfare agency and the homestudy report in their cases to be
prepared by such sponsoring foreign agency. This difficulty is a genuine
difficulty. It would be quite impracticable to ask a for- eigner living in India
and wishing to take an Indian child in adoption to obtain a home-study report
from an agency base in his home country. It would 396 be impossible for any
foreign social or child welfare agency to sponsor the case of such foreigner
who is living in India and it would equally be impossible for any such social
or child welfare agency to prepare a home, study report in respect of such
foreigner. We would, therefore, direct that in case of a foreigner who has been
living in India for one year or more, the home-study report and other connected
documents may be allowed to be prepared by the recognised placement agency
which is processing the application of such foreigner for guardianship of a
child with a view to its eventual adoption and that in such a case the court
should not insist on sponsoring of such foreigner by a social or child welfare
agency based in the country to which such foreigner belongs nor should a
home-study report in respect of such foreigner be required to be obtained from
any such foreign social or child welfare agency. The home-study report and
other connected documents prepared by the recog- nised placement agency should
be regarded as sufficient.
The last point raised on behalf of the
applicants arises out of paragraph 12 of the supplemental judgment dated 27th
September 1985. We pointed out in that paragraph of the supplemental judgment
that ordinarily the court entertaining an application on behalf of a foreigner
for being appointed guardian of a child with a view to its eventual adoption should
not insist on making of deposit by the foreigner as and by way of security for
due performance of the obliga- tions undertaken by him, but in an appropriate
case, the court exceptionally pass an order requiring him to make such deposit.
We observed that the execution of a bond would ordinarily be sufficient: and we
made two alternative sug- gestions which may be implemented in regard to the
execution of such bond. We have considered this question once again in view of
the plea raised on behalf of the applicants and we are of the view that the
court need not insist on security or cash deposit or hank guarantee and it
should be enough if a bond is taken from the recognised placement agency which
is processing the application and such recognised placement 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 in the foreign country would honour the bond in case the
condition of the bond is broken, because, obviously: if it fails to do so, no
recognised placement agency in India would in future deal with it and moreover
the name of such foreign social or child welfare agency would be liable to be
deleted from the list of foreign social or child welfare agencies which are
recognised as sponsoring agencies for the purpose of adoption.
These were the only points raised for our
consideration in the applications made on behalf of various social and child
welfare agencies. We have dealt with these points in some detail and we hope
and trust that the 397 clarifications given by us will go a long way towards
reduc- ing the delay in the procedure to be followed in giving a child in
adoption to a foreigner and will also at the same time protect and safeguard
the interest of the child by preventing any possibility of abuse.
M.L.A.
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