St. Theresa's Tender
Loving Care Home & Ors Vs. State of Andhra Pradesh [2005] Insc 585 (24 October
2005)
Arijit Pasayat & Arun
Kumar (Arising out of S.L.P (C) No.9412 Of 2003) Arijit Pasayat, J.
Leave granted.
The basic issue involved in this appeal is whether the appellant no.1 should
be permitted to make arrangement for adoption of a child named Sahiti presently
about five years by appellant nos. 2 and 3. Appellant no.1 claims to be an
organization interested in the welfare of abandoned children and to secure a
congenial atmosphere for their upbringing.
Challenge in this appeal is to an order dated 23.12.2002 passed by the
Andhra Pradesh High Court dismissing the appeal purported to have been filed
under Section 19(1) of the Family Courts Act, 1984 (in short the 'Act') and
Section 47 of the Guardians and Wards Act, 1890 (in short the 'Guardians Act').
The appeal before the Andhra Pradesh High Court was filed by the appellants
questioning correctness of the order dated 8.7.2002 passed by the learned Judge,
Family Court, Secunderabad, rejecting the prayer made by the appellants under
Sections 7 to 10 of the Guardian Act.
Stand of the appellants before the Family Court was that it is a society
registered under the Andhra Pradesh (Telangana Area) Public Societies
Registration Act, 1350 Fasli (in short 'Societies Act') purportedly for
carrying social service activities. One of its main objectives is to provide
shelter to abandoned children more particularly by unwed mothers, and as noted
above to see them comfortably settled in adopted homes. The appellants 2 and 3
are residents of U.S.A. According to petition they were married on 19.10.1999.
They had earlier adopted one son, but wanted to adopt a female child from India
and for that purpose wanted to adopt the girl named Sahiti, born on 14.6.2000.
The claim that they are well settled in life with decent income, would be
eligible for adopting the child and also were sure to provide a happy home to
the adopted child. The minor child Sahiti was stated to be daughter of an
unmarried mother by name Esther, a native of Hyderabad and earning livelihood
as a labourer. Due to social stigma she relinquished the child in favour of the
appellant no.1 on 14.6.2000 and executed a Relinquishment Deed. The child
suffered from various ailments and her adoption in India did not materialize.
On that ground the Voluntary Coordination Agency( in short 'VCA') gave
clearance for the minor to be given in adoption abroad. It was stated in the
petition that inquiries made by appellant no.1 revealed that none of her
relatives were ready and willing to take care of the minor. Since 14.6.2000 the
child has been under the care and custody of appellant no.1. The State of
Andhra Pradesh represented by the Director of Women Development and Child
Welfare Department resisted the claim. Their stand was that it had come to the
notice of the Government that some unscrupulous organizations in Andhra Pradesh
were indulging in child trafficking. With a view to curb menaces, the
Government had issued G.O.Ms. No.16 of 2001 banning relinquishment of a child.
Since the claim of the appellant was based primarily on a Relinquishment Deed
purported to have been executed by the mother of the child, inquiry was
directed to be conducted by the Crime Branch of CID along with other cases.
After inquiry, Crime Branch (CID) reported that the Relinquishment Deed was a
fake and fabricated document and the witnesses to the Relinquishment Deed were
employees of appellant no.1. Therefore, paper notification dated 4.6.2001 was
made calling for claims by biological parents within 30 days in respect of
child Sahiti and eight other cases. The Government of India had also addressed
to the Central Adoption Resource Agency ( in short 'CARA') about the false
claim made by appellant no.1 and requested to initiate action against appellant
no.1. The Family Court rejected the application holding that the VCA issued no
objection certificate on the ground that Indian parents had refused to adopt
the child on the ground that she was suffered from skin disease. The Family
Court was of the view that the so called reasons did not merit acceptance. The
child was also referred to child study report which indicated that the child
did not suffer from any ailment. It was noted that letters of rejection by
Indian parents were not filed and the efforts of VCA for in county adoption
were not established. It was noted that the effort was to be made in the light
of decision of this Court in Lakshmi Kant Pandey v. Union of India (1984 (2)
SCC 244).
It was noted that in term of G.O.Ms. No.16 of 2001 relinquishment of a child
by biological parents on grounds of poverty, number of children or unwanted
girl child could not be permitted. Accordingly the petition filed was rejected.
The view of the Family Court was affirmed by the High Court. High Court
noticed that appellant no.1 based its claim on fabricated document and there
was no genuine effort to see that the child was adopted by Indian parents.
In support of the appeal learned counsel for the appellants submitted that
all possible efforts have been made to see that the child is adopted by Indian
parents. It is not a fact that the child was not suffering from ailments. If
the child is kept in the care and custody of the respondent no.1 and is sent to
the children's home it would be traumatic for the child who has spent five
years with the appellant no.1 quite happily. The State Government has accepted
in public interest litigation that the children who have been transferred to
Shishu Vihar run by the State Government are in a very pathetic condition. More
than 100 children have lost their lives due to negligence on the part of the
authority running the home and because of poor medical care, and even many of
the children have ran away.
It is stated that all possible efforts have been made to find out Indian
parents without success. The request of appellants 2 and 3 for adopting the
child should have been accepted as they were willing to adopt the child.
Because of prolonged litigation, they have shown some reluctance.
Therefore, permission should be given to appellant no.1 to arrange adoption
by way of inter-country adoption.
In Lakshmi Kant Pandey case (supra) the guidelines and the norms to be
followed in the case of adoption by foreigners were indicated in detail.
It is obvious that in a civilized society the importance of child welfare
cannot be over-emphasized, because the welfare of the entire community, its
growth and development, depends on the health and well-being of its children.
Children are a "supremely important national asset" and the future
well-being of the nation depends on how its children grow and develop. The
great poet Milton put it admirably when he said : "Child shows the man as
morning shows the day" and the Study Team on Social Welfare said much to
the same effect when it observed that "the physical and mental health of
the nation is determined largely by the manner in which it is shaped in the
early stages". The child is a soul with a being, a nature and capacities
of its own, who must be helped to find them, to grow into their maturity into
fullness of physical and vital energy and the utmost breath, depth and height
of its emotional, intellectual and spiritual being; otherwise there cannot be a
healthy growth of the nation. The child is father of the man, said Wordsworth
in "My Heart Leaps up". Now, obviously children need special
protection because of their tender age and physique, mental immaturity and
incapacity to look after themselves. That is why there is a growing realisation
in every part of the globe that children must be brought up in an atmosphere of
love and affection and under the tender care and attention of parents so that
they may be able to attain full emotional, intellectual and spiritual stability
and maturity and acquire self-confidence and self-respect and a balanced view
of life with full appreciation and realisation of the role which they have to
play in the nation building process. Without that the nation cannot develop and
attain real prosperity because a large segment of the society would then be
left out of the developmental process. In India this consciousness is reflected
in the provisions enacted in the Constitution of India, 1950 (in short the
'Constitution'). Clause (3) of Article 15 enables the State to make special
provision, inter-alia, for children and Article 24 provides that no child below
the age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.
Clauses (e) and (f) of Article 39 provide that the State shall direct its
policy towards securing inter-alia that the tender age of children is not
abused, that citizens are not forced by economic necessity to enter avocations
unsuited to their age an strength and that children are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against exploitation and
against moral and material abandonment. These constitutional provisions reflect
the great anxiety of the constitution makers to protect and safeguard the
interest and welfare of children in the country. As was observed by a learned
Justice Children are innocent, vulnerable and dependent.
Abondoning children and encluding good foundation of life for them is a
crime against humanity. Children cannot and should not be treated as chattels
or saleable commodities or play things. For full and harmonious development of
their personality, children should grow up in an atmosphere of happiness, love
and understanding. In old Testament Proverbs , XXII it is said "Train up a
child in the way he should go, and when he is old, he will not depart from
it".
In "The Crescent Moon" Rabindranath Tagore said "I do not
love him because he is good, but because he is my little child". The
Government of India has also in pursuance of these constitutional provisions
evolved a National Policy for the Welfare of Children. This Policy starts with
a goal- oriented perambulatory introduction:
The nation's children are a supremely important asset. Their nurture and
solicitude are our responsibility. Children's programme should find a prominent
part in out national plans for the development of human resources, so that our
children grow up to become robust citizens, physically fit, mentally alert and
morally healthy, endowed with the skills and motivations needed by society.
Equal opportunities for development to all children during the period of growth
should be our aim, for this would serve out larger purpose of reducing inequality
and ensuring social justice.
The measures are designed to protect children against neglect, cruelty and
exploitation and to strengthen family ties "so that full potentialities of
growth of children are realised within the normal family neighborhood and
community environment". The National Policy also lays down priority in
programme formation and it gives fairly high priority to maintenance, education
and training of orphan and destitute children. There is also provision in the
National Policy for constitution of a National Children's Board. It is the
function of the National Children's Board to provide a focus for planning,
review and proper coordination of the multiplicity of services striving to meet
the needs of children and to ensure at different levels continuous planning,
review and coordination of all the essential service.
The essence of the directions given in Lakshmi Kant Pandey case (supra) is
as follows:
(1)Every effort must be made first to see if the child can be rehabilitated
by adoption within the country and if that is not possible, then only adoption
by foreign parents, or as it is some time called 'inter- country adoption'
should be acceptable.
(2) Such inter-country adoption should be permitted after exhausting the
possibility of adoption within the country by Indian parents.
(3) There is a great demand for adoption of children from India and
consequently there is increasing danger of ill-equipped and sometimes even
undesirable organisations or individuals activising themselves in the field of
inter-county adoption with a view to trafficking in children.
(4) Following are the requirements which should be insisted upon so far as a
foreigner wishing to take a child in adoption is concerned. In the first place,
every application from a foreigner desiring to adopt a child must be sponsored
by a social or child welfare agency recognised or licensed by the government of
the country in which the foreigner is resident. No application by foreigner for
taking a child in adoption should be entertained directly by any social or
welfare agency in India working in the area of inter-country adoption or by any
institution or centre or home to which children are committed by the juvenile
court.
This is essential primarily for three reasons.
Firstly, it will help to reduce, if not eliminate altogether, the
possibility of profiteering and trafficking in children, because if a foreigner
were allowed to contact directly agencies or individuals in India for the
purpose of obtaining a child in adoption, he might, in his anxiety to secure a
child for adoption, be induced or persuaded to pay any unconscionable or
unreasonable amount which might be demanded by the agency or individual
procuring the child. Secondly it would be almost impossible for the court to satisfy
itself that the foreigner who wishes to take the child in adoption would be
suitable as a parent for the child and whether he would be able to provide a
stable and secure family life to the child and would be able to handle
trans-racial, trans- cultural and trans-national problems likely to arise from
such adoption, because, where the application for adopting a child has not been
sponsored by a social or child welfare agency in the country of the foreigner,
there would be no proper and satisfactory home study report on which the court
can rely.
Thirdly, in such a case, where the application of a foreigner for taking a
child in adoption is made directly without the intervention of a social or
child welfare agency, there would be no authority or agency in the country of
the foreigner who could be made responsible for supervising the progress of the
child and ensuring that the child is adopted at the earliest in accordance with
law and grows up in an atmosphere of warmth and affection with moral and material
security assured to it. The record shows that in every foreign country where
children form India are taken in adoption, there are social and child welfare
agency licensed or recognised by the government and it would not therefore use
any difficulty, hardship or inconvenience if it is insisted that every
application form a foreigner for taking a child in adoption must be sponsored
by a social or child welfare agency licensed or recognised by the government of
the county in which the foreigner resides. It is not necessary that there
should be only one social or child welfare agency in the foreign country
through which an application for adoption of a child may be routed; there may
be more than one such social or child welfare agencies, but every such social
or child welfare agency must be licensed or recognised by the government of the
foreign country and the court should not make an order for appointment of the
foreign country and the court should not make an rode for appointment of a
foreigner as guardian unless it is satisfied that the application of the
foreigner for adopting a child has been sponsored by such social or child
welfare agency.
(5) The position in regard to biological parents of the child proposed to be
taken in adoption has to be noted. What are the safeguards which are required
to be provided insofar as biological parents are concerned? We may make it
clear at the outset that when we talk about biological parents, we mean both
parents if they are together or the mother or the father if either is alone.
Now it should be regarded as an elementary requirement that if the biological
parents are known, they should be properly assisted in making a decision about
relinquishing the child for adoption, by the institution or center or home for
child care or social or child welfare agency to which the child is being
surrendered. Before a decision is taken by the biological parents to surrender
the child for adoption, they should be helped to understand all the
implications of adoption including the possibility of adoption by a foreigner
and they should be told specifically that in case the child is adopted, it
would not be possible for them to have any further contact with the child. The
biological parents should to be subjected to any duress in making a decision
about relinquishment and even after they have taken a decision to relinquish
the child for giving in adoption, a further period of about three months should
be allowed to them to reconsider their decision.
(6) But in order to eliminate any possibility of mischief and to make sure
that the child has in fact been surrendered by its biological parents, it is
necessary that the institution or center or home for child care or social or
child welfare agency to which the child is surrendered by the biological
parents, should take from the biological parents a document of surrender duty
signed by the biological parents and attested by at least two responsible
persons and such document of surrender should not only contain the names of the
biological parents and their address but also information in regard to the
brother of the child and its background, health and development.
But where the child is an orphan, destitute or abandoned child and its
parents are not known, the institution or center or home for child card or
hospital or social or child welfare agency in whose care the child has come,
must try to trace the biological parents of the child and if the biological
parents can be traced name it is found that they do not want to take back the
child, then the same procedure as outlined above should as far as possible be
followed. But if for any reason the biological parents cannot be traced, then
there can be no question of taking their consent or consulting them. It may
also be pointed out that the biological parents should not be induced or
encouraged or even be permitted to take a decision in regard to giving of a
child in adoption before the birth of the child or within a period of three
months from the date of birth. This precaution is necessary because the
biological parents must have reasonable time after the birth of the child to
take a decision whether to rear up the child themselves or to relinquish it for
adoption and moreover it may be necessary to allow some time to the child to
overcome any health problems experienced after birth.
(7) Of course, it would be desirable if a Central Adoption Resource Agency
is set up by the Government of India with regional branches at a few centers
which are active in inter-country adoptions. Such Central Adoption Research
Agency can act as a clearing house of information in regard to children
available for inter-country adoption and all applications by foreigners for
taking Indian children in adoption can then be forwarded by the social or child
welfare agency in the foreign country to such Central Adoption Resource Agency
and the latter can in its turn forward agencies in the courts.
Every social or child welfare agency taking children under its care can then
be required to sent to such Central Adoption Resource Agency the names and
particulars of children under its care who are available for adoption and the
names and particulars of such children can be entered in a register to be
maintained by such Central Adoption Resource Agency." In terms of this Court's
decision in Lakshmi Kant Pandey case (supra), CARA was formed and it published
"Guidelines for adoption". Under these guidelines every State has a
VCA to co-ordinate and oversees inter-state adoptions.
It is pointed by Mr. Colin Gonsalves who was requested to assist in the
matter though the intervention application filed by him on behalf of Parchuri
Jamuna was rejected, that in some States the VCA is a non-governmental
organization (in short 'NGO') and in some other States the Department of Women
and Child Development. In the State of Andhra Pradesh, the said Department is
VCA. Several guidelines have been issued from time to time. The Government of
India, Ministry of Welfare has also issued directions. On the basis of Lakshmi
Kant Pandey case (supra) the Government of India has issued certain guidelines
vide its ResolutionNo.13-33/85-CH(AC) dated 4th July, 1989.
Subsequently, some clarifictory orders were passed by this Court on 19th
September, 1989, 14th August, 1991, 29th October, 1991, 14th November, 1991 and
20th November, 1991. A Task Force was constituted on 12th August, 1992 under
chairmanship of retired Chief Justice of this Court.
Report was submitted by the Task Force on 28.8.1993. On the basis of the
recommendations made certain guidelines were also issued by the Ministry of
Welfare Resolution dated 29th May, 1995.
In the background of what has been noticed by the Family Court and the High
Court it is crystal clear that the orders passed do not suffer from any
infirmity to warrant interference. It has been printed out by learned counsel
for the State and Mr. Gonsalves, that the appellant no. 1 has been prosecution
for offences punishable under various provisions of the Indian Penal Code, 1860
(in short'IPC').
The accusations relate to cheating, manipulation/fabrication of documents.
Some of the functionaries of the appellant no. 1 have already been convicted
while permitting any organization to keep a child or give him or her in
adoption its credentials are to be minutely scrutinized. It should be ensured
that behind the mask of social service or upliftment and evil design of child
trafficking is not lurking. It is the duty of the State to ensure a safe roof
over an abandoned child. Keeping in view the welfare of the child all possible
efforts should be made by the State Governments to explore e possibility of
adoption under the supervision of the designated agency. Keeping in view the
guidelines indicated by this Court in Lakshmi Kant Pandey case (supra) adoption
by foreign parents may in appropriate cases be permitted.
While making the requisite and prescribed exercise it has to be kept in mind
that child is a precious gift and merely because he or she for various reasons
is abandoned by the parents that cannot be a reason for further neglect by the
society. It is urged that some account of vehemence by learned counsel for the
appellants that the children homes run by the State Governments are really no
place when a child is to be placed. They suffer from neglect, proper care is a
myth and a large number of children have lost their lives or are unable to bear
the cruelties meted out.
If the grievances are true, it is a matter of serious concern. The Central
Government and the State Government would do well to look at these problems
with the humanitarian approach and concern they deserve.
It would be appropriate for them to keep the following lines from
Longfellows "The Children's Hour" in mind.
"Between the dark and the daylight, when the night is beginning to
lower, comes a pause in the day's occupations, that is known as the Children's
Hours" With the aforesaid observations the appeal is dismissed with no
orders as to costs.
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