CASE NO.: Appeal (civil) 9631 of 2003 PETITIONER: Smt. Anokha RESPONDENT: The State of Rajasthan & Ors. DATE OF JUDGMENT: 08/12/2003 BENCH: RUMA PAL & P.VENKATARAMA REDDI JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No.7022 of 2003]
RUMA PAL, J.
Leave granted.
Baby Alka Singh is the daughter of Smt. Anokha and
Sumer Singh Yadav. Sumer Singh Yadav was a taxi driver.
The Respondents no.2 and 3 are Italian nationals. During their
frequent visits to India either singly or jointly for the last 20
years, they used Sumer Singh’s taxi to tour the country. About
three years ago, Sumer Singh died as a result of an accident
which took place after he had dropped the respondents no.2
and 3 at their destination. Sumer Singh and Anokha, the
appellant before us, had six children, five of whom were girls.
After Sumer Singh’s death, the respondents no.2 and 3 who at
that point of time had no children of their own wanted to adopt
one of the girls viz., Baby Alka. Smt. Anokha agreed.
In January 2001, a petition was filed by the respondents
no.2 and 3 under Sections 7, 10 and 17 of the Guardians and
Wards Act, 1890 in the Court of District Judge, Alwar in which it
was stated inter alia that they were issue-less, that they were
responsible citizens, that they have their own business and
have a very good income, that they own moveable and
immovable properties in Italy, that they would love and look
after the well being of Baby Alka and provide her the best
education and milieu at Italy. In support of their application, the
respondents No.2 and 3 filed the following material before the
District Judge:
1. A certificate of the Public Prosecutor of the Court of
Venice to the effect that there were no criminal
proceedings pending against either of them;
2. Report of the Family Advisory Bureau of the local
Health Office consequent upon investigation made
giving the family background of the respondents,
the present financial status, their vocation, their
social status and their personality. The conclusion
in the report was that the couple had been married
since 1986 and they always wished to have a
natural child and another adopted one. They had till
the date of the report been unsuccessful in having a
child of their own;
3. A certificate of the psychologist and a social worker
relating to their residential accommodation, the
marital harmony between the respondents no.2 and
3 and their parental competency;
4. A certificate of citizenship issued by the municipal
authorities;
5. A decree of the Juvenile Court of Venice on the
basis of the material collected declaring that the
couple was “well-balanced, mature, cohesive,
conscious of the problems concerning adoption”
and that they were “suitable to adopt a minor of
foreign nationality”;
6. Income Tax records certifying solvency;
7. A certificate issued by the Chamber of Commerce,
Industry and Agriculture, Venice relating to the
business carried on by respondent No. 2.
The District Judge issued notices to the Social Welfare
Department of the State of Rajasthan as well as to the
appellant and also directed notices to be published in the local
newspapers of the proposed appointment of the respondents
no.2 and 3 as the guardians of Baby Alka. The notices were
duly published. The appellant filed an affidavit before the
District Judge in which she stated that she had known the
respondents no.2 and 3 for the last 20 years and she had no
objection if they were appointed guardians of her baby
daughter. A report was also filed on behalf of the Dy. Collector,
Social Welfare Department, Alwar on 26.7.2001 recommending
that the child could be given in adoption. The report was
submitted after investigating into the financial status of the late
Sumer Singh’s family and ascertaining the wishes of the
appellant Anokha. Both the respondents also appeared before
the District Judge and reiterated on oath that they would look
after the child and were competent to do so physically,
financially and emotionally.
The District Judge however was of the view that since the
adoption was sought to be effected by a foreign couple, the
Guidelines prescribed for ‘Adoption of Indian Children’ issued
by the Ministry of Welfare, Government of India (referred to
hereafter as ‘the Guidelines’) would have to be followed. The
Guidelines require that child must be sponsored by a Social or
Child Welfare Agency recognized or licensed by the
Government of the country in which the foreigner is the
resident. It was, therefore, held that unless an authorised
agency in Italy submitted an enquiry report and a ‘No Objection
Certificate’ was issued by the Ministry of Welfare, Government
of India, no application for appointment of foreigners as
guardians could be presented to the Court. The District Judge
held that the Guidelines would apply irrespective of whether the
child’s biological parents were alive or not.
On the rejection of the application, an appeal was
preferred by the appellant to the High Court. The High Court
was also of the view that the Guidelines applied to this case. It,
therefore, directed the respondents no.2 and 3 to make a fresh
application for being appointed guardians after the same was
sponsored by the Social or Child Welfare Society recognised or
licensed by the Government of Italy. In addition, the High Court
said that the respondents no.2 and 3 would have to get a No
Objection Certificate from the Central Adoption Resource
Agency (CARA). In the event they did not obtain such
certificate, their application for guardianship would not be
entertained.
The appellant has approached this Court under Article
136 of the Constitution. She has reiterated the stand taken by
her before the High Court and the District Judge, namely, that
the Guidelines issued by the Ministry of Welfare relating to the
adoption of Indian Children did not apply in the case of adoption
of children living with their biological parents and that the
guidelines only applied to cases where the child was destitute
or abandoned or living in Social or Child Welfare Centres. This
Court issued notices to the respondents on 28th April, 2003. A
counter affidavit was filed by the State opposing the Special
Leave Petition.
In our view, the High Court and the District Judge erred in
not considering the material produced by respondents no. 2
and 3 in support of their application and in rejecting the
application under the Guardians and Wards Act, 1890 solely on
the basis of the guidelines. The background in which the
guidelines were issued was a number of decisions of this Court,
the first of which is Lakshmi Kant Pandey v. Union of India
[AIR 1984 SC 469 : (1984) 2 SCC 244]. This is borne out from
the stated object of the guidelines as set out in paragraph 1.1.
thereof which “is to provide a sound basis for adoption within
the frame work of the norms and principles laid down by the
Supreme Court of India in the series of judgments delivered in
L.K. Pandey V. Union of India and Others between 1984 and
1991”. The original decision of the Court was taken on the
basis of a letter written by one Laxmi Kant Pandey complaining
of mal-practices indulged in by social organisations and
voluntary agencies engaged in the work of offering Indian
children in adoption to foreign parents. The judgment has
considered the problem at great length after affidavits were filed
not only by the Indian Council of Social Welfare but also by
Foreign Organisations and Indian Organisations which were
engaged in offering and placing Indian children for adoption by
foreign parents. The decision has referred to three classes of
children: (i) children who are orphaned and destitute or whose
biological parents cannot be traced; (ii) children whose
biological parents are traceable but have relinquished or
surrendered them for adoption; and (iii) children living with their
biological parents. The third category has been expressly
excluded from consideration as far as the decision was
concerned “for in such class of cases, the biological parents
would be the best persons to decide whether to give their child
in adoption to foreign parents”1. The reason is obvious.
Normally, no parent with whom the child is living would agree to
give a child in adoption unless he or she was satisfied that it
would be in the best interest of the child. That is the greatest
safeguard.
The directions which have been given in the decision are
limited to the Ist and IInd categories of children with more
stringent requirements being laid down in respect of children in
the first category of cases. As far as adoption of children falling
within the second category are concerned, the requirements
are not so stringent. All that is required is that2:
” they (viz., the biological parents) should be
properly assisted in making a decision about
relinquishing the child for adoption, by the Institution
or Centre 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 not 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. But
once the decision is taken and not reconsidered
within such further time as may be allowed to them,
it must be regarded as irrevocable and the
procedure for giving the child in adoption to a
foreigner can then be initiated without any further
reference to the biological parents by filing an
application for appointment of the foreigner as
guardian of the child. Thereafter, there can be no
question of once again consulting the biological
parents whether they wish to give the child in
adoption or they want to take it back. .”
The aforesaid observations only pertain to children who
have been or are sought to be relinquished or surrendered for
adoption in general to a placement agency or other institution
where there is no contact between them and the adoptive
parents at all and not to cases where the child is living with
his/her parent/parents and is agreed to be given in adoption to
a particular couple who happen to be foreign.
This decision has been subsequently modified but
reaffirmed in several decisions. In all the subsequent cases, the
modification, if any, has pertained to adoptions through
institutions i.e. the first or second category of children. {See:
Lakshmi Kant Pandey v. Union of India & Anr. [1985 (Supp.)
SCC 701], Lakshmi Kant Pandey v. Union of India [(1987) 1
SCC 66], Lakshmikant Pandey v. Union of India & Ors.
[(1991) 4 SCC 33], Sumanlal Chhotalal Kamdar & Ors. v.
Asha Trilokbhai Shah (Miss) & Ors. [(1995) 3 SCC 700],
Karnataka State Council For Child Welfare & Anr. v. Society
of Sisters of Charity St. Gerosa Convent and others [1995
Supp. (4) SCC 529], Indian Council Social Welfare & Ors. v.
State of A.P. & Ors. [(1999) 6 SCC 365], Lakshmi Kant
Pandey v. Union of India & Ors. [(2001) 9 SCC 379]}.
The guidelines have formulated various directives as
given by this Court in the several decisions and do not relate to
regulation of the adoption procedure to be followed in respect of
third category of children, namely, children with their biological
parents who are sought to be given in adoption to a known
couple as is the situation in this case. It is only where there is
the impersonalized attention of a placement authority that there
is a need to closely monitor the process including obtaining of a
no objection certificate from the Central Adoption Resource
Agency (CARA), Ministry of Welfare, the sponsorship of the
adoption by a recognised national agency and the scrutiny of
the inter-country adoption by a recognised Voluntary
Coordinating Agency (VCA). Indeed CARA has been set up
under the guidelines for the purpose of eliminating the
malpractice indulged in by some unscrupulous placement
agencies particularly the trafficking in children.
Under the guidelines, the Home Study Report to be
enclosed with an application for adoption must be routed
through a foreign and enlisted agency which must be an
enlisted agency in India with a copy to CARA. The Home Study
Report is required to contain the following particulars:
(a) Social Status and family background;
(b) Description of Home;
(c) Standard of living as it appears in the Home;
(d) Current relationship between husband and
wife;
(e) Current relationship between the parents and
children (if any children);
(f) Development of already adopted children (if
any);
(g) Current relationship between the couple and
the members of each other’s family;
(h) Employment status of the couple;
(i) Health details such as clinical test, heart
condition, past illness etc. (medical certificate
etc.);
(j) Economic status of the couple;
(k) Accommodation for the child;
(l) Schooling facilities;
(m) Amenities in the Home;
(n) Reasons for wanting to adopt an Indian child;
(o) Attitude of grand-parents and relatives
towards Adoption;
(p) Anticipated plans for the adoptive child;
(q) Legal status of the prospective adopting
parents.
The report is required to be notarised which must in turn
be attested either by an Officer of the Ministry of External
Affairs or an Officer of the Justice or Social Welfare
Department of the foreign country concerned or by an Officer of
the Indian Embassy or High Commission or Consulate in that
country.
None of these provisions in the several decisions of this
Court impinge upon the rights and choice of an individual to
give his or her child in adoption to named persons, who may be
of foreign origin. The Court in such cases has to deal with the
application under Section 7 of the Guardians and Wards Act,
1890 and dispose of the same after being satisfied that the
child is being given in adoption voluntarily after being aware of
the implication of adoption viz. that the child would legally
belong to the adoptive parents family, uninduced by any
extraneous reasons such as the receipt of money etc; that the
adoptive parents have produced evidence in support of their
suitability and finally that the arrangement would be in the best
interest of the child.
In the case before us although the guidelines do not
apply, the respondents No.2 and 3 had produced evidence
which fulfilled all the particulars required of a Home Study
Report. The appellant has repeatedly affirmed her closeness to
the respondents no.2 and 3 and her conviction that they would
nourish and care for baby Alka as if she was their own. The
respondents no.2 and 3 have produced sufficient evidence to
justify their suitability to be adoptive parents. There was a
judicially directed scrutiny by a local Governmental Agency in
Venice. The enquiry report has resulted in a judgment passed
by the Court at Venice, Italy. That judgment can be accepted
by this Court under Section 13 of Code of Civil Procedure,
particularly when the respondents have filed the investigation
report and other material on the basis of which the judgment
was delivered.
In the circumstances of the case, the decision of the High
Court is set aside and the application of the respondents no.2
and 3 filed under the Guardians and Wards Act, 1890 is
allowed. The respondent Nos.2 and 3 are appointed guardians
of the child Alka the daughter of Anokha and late Sumer Singh
with liberty to take her to Italy for the purpose of adopting her in
accordance with Italian law. However, before the child is taken
out of the country the following conditions must be complied
with:
1) The respondents No.2 and 3 will file an affidavit
before the District Court, Alwar with an undertaking
to adopt the child within two years and to produce
the child, if so required, till proof of adoption is filed
with the District Court;
2) The respondents No.2 and 3 shall keep in deposit
with the District Court an amount of Rs.50,000/-
(Rupees fifty thousand only) to cover the air fare for
the possible repatriation of the child to India till the
child is legally adopted; the amount shall be kept by
the District Court in a short term fixed deposit with
any Nationalised bank and the Fixed Deposit
Receipt is to be held to the credit of the minor, Alka.
Upon proof of her adoption by the respondents No.
2 and 3 the amount deposited shall be forthwith
returned to the said respondents or their duly
authorised representative together with the interest
accrued thereon.
3) The respondents No. 2 and 3 must undertake by
affidavit filed before the District Court to submit
annual reports to the District Court of the child’s
welfare and progress in school with photographs
and to inform the District Court of any change of
address till the child is legally adopted
The Registry of this Court is directed to send two copies of
this judgment together with two copies of the affidavit of the
appellant dated 1st October 2003 and the annexures thereto to
the CARA, Ministry of Welfare, Government of India one set of
which is to be retained by CARA and the other forwarded by it
to the relevant Indian Diplomatic Mission in Italy for their record
in the event any follow up action is necessary.
The appeal is allowed and disposed of as above.