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Report No. 153

Chapter 2

Present Legal Position

2.1. There is no enactment on inter-country adoption as such in India. However, a large number of Indian children have been adopted by foreign parents belonging to different countries as mentioned earlier.

2.2. The Law Commission of India had incidentally considered1 the question of appointment of guardian residing out of India for a person living in India. The general consensus at that time was that the matter was in the discretion of the court and there was no rigid rule prohibiting appointment of foreign person as a guardian under section 7 of the Guardians and Wards Act, 1890. No recommendation suggesting amendment to the Act was made and the question of appointment of institution as guardians was deferred.

1. 83rd Report, 1980, on the Guardians and Wards Act, 1890 and provisions of the Hindu Minority and Guardianship Act, 1956

2.3. Presently, inter-country adoptions are regulated and supervised by the principles, norms and procedure laid down by the Supreme Court.1 Earlier, the Gujarat High Court grappled with the question and laid down guidelines governing adoption of Indian children by foreigners.2 While doing so the Court relied upon the Full Bench decision in Marggarate Maria v. Dr. Chacko, AIR 1970 Ker 1.

1. L.K. Pandey v. Union of India, (1984) 2 SCR 795

2. R.C. Mehta (in re:), AIR 1982 Guj 193.

2.4. In R.C. Mehta's, AIR 1982 Guj 193case District Judge of the Rajkot granted permission under section 9(4) of the Hindu Adoption and Maintenance Act, 1956 for giving a minor female child for adoption to a West German couple. The order was issued on the basis of adoption deed executed for the purpose, although it did not mention that the child was to be taken away by the adopted parents to West Germany. Pursuant to the District Judge's order the adopted parents applied for issue of passport for the child but the same was refused on the ground that the order of the District Judge did not contain any direction for taking the child outside the country.

The adopting parents made an application to the District Judge for issue of an order directing the Passport Authorities to issue the passport. In the meantime a writ petition was filed in the High Court for quashing the order of the District Judge. The writ petition was referred to Division Bench but on the date of hearing of the petition, permission for withdrawal of the petition was sought as it was realised that proper procedure would be to make an application to the competent authority under the Guardians and Ward Act, 1890. The Court permitted withdrawal.

Another matter relating to adoption of Indian child by foreign parents was considered by the Supreme Court. The Supreme Court in the absence of any law regulating the inter-country adoption referred to Articles 15, 34 and 39 of the Constitution and sections 7 to 9 of Guardians and Wards Act, 1890 in issuing directions to regulate adoption of children by foreign parents. These cases illustrate as to how the provisions of the Guardians and Wards Act, 1890 which was never intended to be used fur adoption of children by foreign parents was put to useful purpose in the absence of a law regulating such adoptions.

2.5. Basically the Guardians and Wards Act, 1890 hereinafter referred to as the 1890 Act, provides for appointment of guardian of minor children and it does not regulate the adoption of children by foreigners or by Indians. But its provisions have been pressed into service to facilitate adoption of children by foreigners. Where a foreigner desires to adopt an orphan child he makes an application before the District Court for appointing him as guardian of that child and after such appointment the foreigner takes away the child to his country with the permission of the Court.

2.6. As already mentioned there is no enactment having direct bearing on regulating adoption of Indian children by the foreigners. There is also no explicit provision in the Guardians and Wards Act, 1890 providing for inter-country adoption of Indian children. However, the courts in their discretion have put to useful purpose the Act, 1890 and regulated the inter-country adoptions.



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