JUDGMENT
T. Meena Kumari, J.
1. As the issue involved in all these CMAs are identical in nature, they are clubbed together and are being disposed of by this common Judgment. The appellant in all these CMAs is St. Theresa’s Tender Loving Care Home.
2. For the sake of convenience, the facts in CMA No.839 of 2004, which was filed against the order of the Judge, Family Court, Hyderabad dated 19.2.2004 in OP No.646 of 2001, has been narrated. The first appellant herein is the first petitioner in the OP i.e., St. Theresa’s Tender Loving Care Home, Sanathnagar, Hyderabad. Petitioners 2 and 3 in the said OP are the adoptive foreign parents.
3. The appellant herein is the first petitioner and the first respondent herein is the second respondent and respondents 2 and 3 herein are petitioners 2 and 3 in the OP. The first respondent in the OP, shown as, ‘all concerned’ is not made as party in this C MA. The parties would be referred to as they were arrayed in the O.P.
4. The brief facts that led to the filing of the above CMA are as follows:
The first petitioner is a society registered under the AP (Telangana Area) Public Societies Act, 1350 Fasli represented by its Chief Coordinator. The Government of India by its certificate No. 89/2000 dated 29.9.1997 recognized the petitioner society as an agency for processing and filing of the application before the competent court for declaration of foreigners as Guardians of Indian children under the Guardian and Wards Act, 1890. Pursuant to GO Ms. No.16 dated 18.4.2001, the petitioner also made an application on 4.5.2001 to the concerned authorities at Ranga Reddy District and later on 29.5.2001 at Hyderabad District in Form No.1 for recognition and the same have been pending with the Government of Andhra Pradesh for consideration.
5. It is stated in the OP that petitioners 2 and 3 are German citizens and they are residing in Germany and as they are not in a position to attend the proceedings before the Court personally, they are being represented by the Chief Coordinator of petitioner no.1 society as per the GPA executed by them.
6. It is stated that first petitioner society takes up the work of inter-country adoption as part of their social service, children welfare and women welfare activities and hence they are entitled to present the petition for appointment of proposed guardians of the minor child Mydhili. International Social Service, Germa Branch, AM Stockburn 5-7 6000 Frankfurt am Main, Germany has forwarded the application of petitioners 2 and 3 along with home study report, its recommendation and other necessary papers to the first petitioner society for adoption of a minor child.
7. It is also stated that the first petitioner society submitted an application to the Central Adoption Resource Agency (C.A.R.A.), Ministry of Social Justice and Empowerment, Government of India, New Delhi for placement of minor child Mydhili and the CARA pursuant to that letter expressed no objection for inter-country adoption of the minor child basing on the clearance given by Voluntary Adoptions Coordinating Association (VACA) on 26.8.2000.
8. Petitioners 2 and 3 are German citizens and they have sufficient income and as they were not blessed with any issues due to infertility, they intended to adopt a female child and hence they approached the foreign agency for adoption of an Indian female child and the Home Study Report submitted by the foreign agency reveals that petitioners 2 and 3 have all the requisite qualifications for being eligible to adopt, as they do not suffer from any physical, mental, financial, social, legal or any other disability whatsoever.
9. The minor child, who was born on 3.4.2000, is the third daughter of Kasna and Santi of Miryalguda, Nalgonda District and as the child was born with underweight and as the biological parents are not in a position to provide medical treatment, they relinquished the baby in favour of the first petitioner herein on 10.4.2000 and executed a relinquishment deed in favour of the first petitioner. It is also stated that the adoption of the said baby in India was not materialized since the child is not healthy and treated for pneumonia and gastritis and none of the relatives of the child are ready and willing to take care of the minor child. Under those circumstances, the first petitioner society has made thorough verification of documents relating to petitioners 2 and 3 and it has satisfied that the request of petitioners 2 and 3 is genuine and proper and they have both financial resources and social awareness to take proper care of the minor child and hence the OP was filed for the following reliefs:
“It is therefore prayed that the honourable court may be pleased to appoint:
a) The petitioners 2 and 3, as guardians for the person of the minor Baby Mydhili born on 3.4.2000, presently residing at the St. Theresa’s Tender Loving Care Home, Sanathnagar, Hyderabad;
b) The petitioners 2 and 3, be permitted to take the minor child Baby Mydhili born on 3.4.2000 to USA, to stay with them and ultimately be adopted by them as per Laws of USA;
c) Grant any other relief or reliefs as the honourable court may deem fit and proper in the circumstances of the case.”
10. On behalf of the Government, the Director of Women Development and Child Welfare Department filed counter stating that the Board constituted under GO Ms.No.16 dated 18.4.2001 did not grant recognition to the first petitioner institution and that the recognition granted by the CARA expired by 5.10.2001. However, it is stated in the counter that the CARA addressed a letter to the Government to allow the first petitioner institution to complete those cases where no objection certificates have already been issued for inter country adoption. It is also stated that when the Government verified as to the genuineness of the particulars of biological parents as per the relinquishment deed, no such parents are available in the address mentioned in the document. However, it is stated that in cases where even after publication of the notification in leading news papers to claim their children, none have come forward, the Government of Andhra Pradesh have taken a policy decision not to stop the cases of children for inter country adoption where CARA had already issued No objection certificate before issuance of GO Ms. No.16 dated 18.4.2001 and hence it is stated that the respondent has no objection to proceed with the matter.
11. However, the same Director of Women Development and Child Welfare filed additional counter stating that petitioners 2 and 3 have already adopted one daughter and has one biological child of 27 years old and two adopted daughters of 6 and 3 years and hence placing the fourth child in their hands will certainly not be in the welfare of the child. It is also stated that the petitioner society obtained certificate of clearance from VACA on flimsy grounds stating that the Indian parents rejected the child as she is suffering from pneumonia and gastroentities whereas the medical examination report of the child reveals that the child is having Bronco pneumonia and chickenpox. It is also stated that it is not known as to whether any attempts have been made by the VACA for placing the baby for in-country adoption is also not known and hence the first respondent prays for dismissal of the OP keeping in view the paramount consideration of welfare and protection of the child.
12. It is to be seen that for the amended additional counter, the first petitioner institution filed rejoinder denying all the allegations made in it.
13. In the court below, the Chief Coordinator of the first petitioner society was examined as PW1 and Exs.A1 to A31 were marked on behalf of the petitioners. The Deputy Director (Adoptions) Women Development and Child Welfare was examined as RW1 and Exs.R1 to R3 were marked on behalf of the respondent.
14. The Court below after going through both oral and documentary evidence has chosen to dismiss the petitions on the ground that the guidelines stipulated by the Apex Court in the case of LAKSHMI KANT V. UNION OF INDIA, and also Rule 2.14 and 4.15 of the guidelines of the CARA have not been followed. Secondly, there is no material available that the first petitioner has resorted to foreign country adoption of the minor child after exhausting all the remedies to give the child in adoption to the Indian parents. The court below after appreciating the entire material on record and also relying on the judgments of the supreme court has dismissed all the OPs filed by the first petitioner society. Questioning the said order, these CMAs have been filed.
15. The learned counsel for the appellant, Mrs. S. Vani contends that the as per guidelines framed by the Apex Court in the case of LAKSHMI KANT (1st supra), the application made by a foreigner desiring to adopt a 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 a resident and on receipt of such application the foreigner who intend to take a child for adoption be appointed as guardian under Guardian and Wards Act by the Court till the child leaves for the country of his/her prospective adoptive parents. The learned counsel submits that the petitioner society is a recognized society and the said society takes up the work of inter country adoption as part of their social service, children welfare and women welfare activities. The other petitioners in the OPs are foreigners and they are residing in their respective countries and the first petitioner society is representing them as a power of attorney holder and their applications have been cleared by the CARA wherein they have given no objection certificates. The learned counsel also argued that as CARA issued no objection certificate and VACA also issued the clearance, the learned Family Judge ought to have appointed the foreign parents rep. by the petitioner society as the guardian till the child leaves the country.
16. On the other hand, the learned Government Pleader submits that the validity of the registration certificate issued by the petitioner society had expired and the same was not renewed even as on today . The learned Government Pleader also submits that criminal cases have been registered against the society and the same are pending and that the learned Family Judge after appreciating the entire material on record has rightly dismissed the CMAs and the impugned orders need no interference.
17. At the outset, it has to be observed that the court below has dismissed the application on the ground of non-following the guidelines issued by the Supreme Court in the case of LAKSHMI KANT (1st supra) and also on the ground that criminal cases are pending against the first petitioner-society under Sections 420, 468, 471 and 341 of IPC pursuant to the report given by the Project Director, District Women and Child Development Agency, Hyderabad wherein a specific accusation was made against it with regard to the noticing of discrepancies in maintaining the records by it.
18. For better appreciation of facts, this Court feels that the guidelines framed by the Apex Court in the case of LAKSHMI KANT (1st supra), which are relevant to the circumstances of the case, are extracted below:
“12. xxx xxxx Every application from a foreigner desiring to adopt a 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 resident. No application by a 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 adopting or by any Institution or Centre of Home to which children are committed by the juvenile Court. This is essential primarily for three reasons.
13. Firstly, it will help to reduce, if not, eliminate altogether, the possibility of profiteering and trafficking in children. 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. 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. 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 recognized by the Government of the foreign country. Xxxx xxxx The Government of India should prepare a list of social or child welfare agencies licensed or recognized for inter-country adoption by the Government in various foreign country and supply copies of such list to the various High Courts in India also to the social or child welfare agencies operating in India in the area of inter-country adoption under licence or recognition from the Government of India. xxx xxx
15. xxxx it should not be open to any and every agency or individual to process an application from a foreigner for taking a child in adoption and such application should be processed only through a licensed or recognized social or child welfare agency. All private adoptions conducted by unauthorized individuals or agencies should be stopped. Xxxx
16. xxx xxxx The child study report should contain as far as possible information in regard to the following matters:
‘1 to 3 xxxx
4. Health report prepared by a registered medical practitioner preferably by a pediatrician’
17. xxx xxx xxx The social or child welfare agency which is looking after the child selected by a prospective adoptive parent, may legitimately receive from such prospective adoptive parent maintenance expenses at a rate not exceeding Rs.60/- per day (this outer limit being subject to revision by the Ministry of Social Welfare, Government of India from time to time) from the date of selection of the child by him until the date the child leaves for going to its new home as also medical expenses including hospitalization charges, if any, actually incurred by such social or child welfare agency but no such donation from a prospective adoptive parent shall be received until after the child has reached the country of its prospective adoptive parent xxx xxx xxx”
19. The record shows that the International Social Service, German Branch situate at Frankfurt in its letter dated 25.1.2001 has certified that Youth Welfare Office in Olpe, which made the Home study on the above mentioned couple is the responsible Youth Authority. It is also stated that the said services have been enlisted by the Government of India, Ministry of Social Welfare. However, the array of the parties to the OP goes to show that the Government of India has not been made a party. The said approval from the prospective adoptive foreign parents has been sent to the petitioner care home. The material papers filed before this Court in the above referred CMA goes to show that the petitioner home represented by its Chief Co-ordinator Sister Thersa Marie Kattikaren has submitted an application to the Government of India, Ministry of Social Justice for grant of recognition, as the licence period expired on 5.10.2001. The petitioner Home made a representation to the Project Director, Women Development and Child Welfare Department for issuance of certificate of recognition on 4.5.2001 and 29.5.2001.
20. From the above, it is clear that the recognition is for a period of one year and there is no material placed either before the trial court or before this Court to show that the said recognition has been renewed by the concerned authorities. The material goes to show that first petitioner Home represented by its Chief Coordinator sister Thersa Marie Kattikaren made application for renewal of recognition on 18.4.2001 and 4.5.2001 to the concerned authorities at Ranga Reddy District and subsequently on 29.5.2001 to the concerned authorities at Hyderabad District and the same is pending for sanction. The above pleadings of the first petitioner Home go to show that it had filed an application having known that its recognition would expire on 5.10.2001. But, however, in view of the fact that certificate of recognition has been granted for a period of one year from 6.10.2000 to 5.10.2001 and no material is placed before this court that the Government of India or the concerned authority has granted the renewal of recognition or separate certificate of recognition, it has to be held that the first petitioner-Home did not have recognition as on the date of dismissal of OP i.e., on 19.2.2004 and also at the time of hearing the present CMA. From the above it has to be construed that the application of the first petitioner Home for renewal of recognition remained even un-answered as on today and hence it has to be held that the first petitioner Home continuing the attempts to give the child Mythili to the foreign parents without a valid registration.
21. In this context, it is relevant to note that the Apex Court in the case of LAXMIKANT PANDY V. UNION OF INDIA, , held that in the event of cancellation of recognition, a time frame should be fixed to clear all the cases already in the pipeline for being processed. The first petitioner society has made an application for recognition to the State Government as stated in the OP itself and in the absence of any orders from the concerned authorities, the Society remained unrecognized till date. It has to be observed that till the first petitioner Home gets a renewal, we have no hesitation to hold that the said Home has no role to play as per the guidelines of the Supreme Court in the case of LAKSHMI KANT (1st surpa).
22. The next question to be decided is whether the first petitioner Home has made any effort to find adoptive parents for the baby child within the country before proceedings to give the child in adoption to foreign adoptive parents. In this regard, it is relevant to note the Apex Court in the case of LAKSHMI KANT (1st supra) has held that when an application for adoption by a foreigner is made, every effort must be made by the recognized social and welfare agency to find adoptive parents for it within the country. Whenever any Indian family approaches a recognized social or child welfare agency for taking a child in adoption, all 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 wants to see the health study report in respect of any particular child, such child study report must also be made available to the Indian family in order to enable the Indian family to decide whether they would take the child in adoption. It 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, subject only to one exception, namely, that if the child is handicapped or is in bad state of health needing urgent medical attention, which is not possible for the social or child welfare agency looking after the child to provide, the recognized social or child welfare agency need not wait for a period of two months and it can and must take immediate steps for the purpose of giving such child in inter country adoption.
23. In this regard, it has to be observed that no material has been placed before this Court or before the court below to show that the first petitioner-home made efforts/attempts to find out the Indian parents who are interested to take the child in adoption.
24. Further, it is to be noticed that the VACA has given a certificate of clearance on 26.8.2000 (marked as Ex.A4) in which it has been stated as follows:
“Indian Adoption is not materialized as the child is not healthy, treated for Pneumonia and Gastritis”
But, a perusal of the said certificate goes to show that is a stereo-typed certificate and no other material is placed before the court below or before this court to satisfy that the petitioner – Care Home has made every effort to see that the child is adopted by the Indian parents. More so, it has to be observed that to substantiate the ground for clearance that the child is not healthy and treated for Pneumonia and Gastritis, no material is placed in support of it. In the absence of any material, it has to be observed that the certificate issued by the Voluntary Adoptions Co-ordinating Association (VACA) that the child is treated for Pneumonia and Gastritis and the child is not healthy cannot be taken cognizance of and this Court has no hesitation to hold that the certificate issued by the VACA is only to enable the first petitioner Home to place the child for adoption to foreign parents for the reason firstly there is no material placed before the Court by the petitioner Home that the said VACA is a registered one; secondly, no material is available to show that the said Home made attempts to find out Indian parents who wish to take the baby for adoption. Further, in the absence of any evidence or material to show that the VACA is a registered association, the certificate issued by the VACA i.e., Ex.A4 has no legal force and it amounts to violation of the guidelines issued by the Apex Court in the case cited supra.
25. As per the judgment of the Supreme Court in the case of LAXMI KANT PANDY (1st supra), the child to be given in adoption should first be offered to the Indian parents and if the Indian parents refused to accept the child, then they may offer the child to foreign adoptive parents. In the instant cases, though it is stated by the appellant-Home that the child in question is being offered for adoption, the Indian parents refused to take the child in adoption and as such it is necessitated that the child to be given in adoption to the foreign parents i.e., petitioners 2 and 3 in O.P.No.646 of 2001on the file of the Judge, Family Court, Hyderabad. But, as per the Additional Counter dated 8.7.2004 in CMA No.839 of 2004, it is clear that the child was never offered for adoption to the Indian parents.
26. A perusal of the contents in OP No.646 of 2001 (CMA No.839 of 2004 before this Court), the first petitioner-Home did not state specifically about the efforts that were made by it to give the baby child in adoption to Indian parents. However, in the evidence of the Co-ordinator of the first petitioner – Home, she has denied the suggestion put to her that she did not made efforts to give the child to the Indian parents. She has also stated in the cross-examination that she does not remember the names of the Indian parents who have given the rejection letter. Further, it is to be noticed that as per the averments made in the additional counter, the police during the course of investigation have questioned the alleged parents and they have categorically stated that the child in question was never offered to them for adoption. It is necessary to extract the letters addressed by the alleged parents to the Commissioner, Women and Child Welfare Department, Hyderabad.
” This is to place it on record that we have not seen any child other than Mr. Pavan (Whom we have legally adopted). We were shown only Mr. Pavan and so the chance of rejecting any other child does not exist. The document showing we have rejected the child are baseless. To our knowledge, we have not signed any blank papers. That signatures must be forged. We are totally not involved regarding this issue.
Yours faithfully,
Sd/- xxx sd/- xxxx
(D.V. LAKSHMI NARAYANA) (D. GAYATRI)"
Thus, it has to be held that the appellant-Home has violated the guidelines of the Supreme Court in the above referred case.
27. In the case of LAXMI KANT PANDEY V. UNION OF INDIA, 1985 (Supp) Supreme Court Cases 701, the Supreme Court also made it clear that the voluntary co-ordinating agency serves as a 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 and if the parents are not available for a particular child for a period of three months, such child is cleared for inter-country adoption and it would be desirable for social and child welfare agencies in other States also to form a similar voluntary coordinating agency.
28. The another ground on which the court below has rejected the OP is that Ex.A7 is the medical examination report of the minor , which was issued by the medical officer of St. Theresa’s Hospital, Sanath Nagar, Hyderabad to the effect that she suffered from Br.Pneumonia and Chicken Pox. As per the guidelines of the Supreme Court in the case of LAXMI KANT PANDEY (1st supra) it has been held that the health report shall be prepared by a registered medical practitioner preferably by a pediatrician. The health report submitted by the petitioner care home goes to show that it has been signed by a medical officer but not a pediatrician. The learned counsel has further argued that it is not mandatory that a pediatrician should alone certify the health report of the baby. As observed by the court below that the Doctor who signed the health report is no other than the medical officer of St. Theressa Hospital, which is being run under the same campus, and the certificate remained undated.
29. A reading of the petition itself goes to show that there is no mention of tendering an amount of Rs.60/- per day to the first petitioner-Home from the date of selection of the child by the adoptive parents until the date the child leaves for going to its new home as also medical expenses including hospitalization charges if any actually incurred by such a social or child welfare agency for the child. In the absence of any material to show that the prospective adoptive parents are parting away amount towards maintenance expenses of the child, it has to be held that there is utter violation of the guidelines of the Hon’ble Apex Court in the case of LAKSHMI KANT (1st supra). Further, no material is placed before this Court to show that the prospective foreign parents are in touch with the prospective adoptive child. It is pertinent to note that, in some of the CMAs, the prospective adoptive foreign parents, who were added as petitioners in the OPs, did not come forward to impleaded themselves as parties to the CMAs. Thus, it has to be held that the perspective foreign parents are not interested to have the children in adoption.
30. The Government also issued GO Rt.No.142 Women Development, Child Welfare and Disabled Welfare (Prog) Department dated 26.3.2002 with regard to Supervision and Control of Orphanages and Charitable Homes i.e., the first petitioner Home in which it has been observed that :
” Government, after careful consideration of the above, hereby order that the Director may nominate one good officer to supervise the TLCH, Hyderabad and also ensure maintenance of the Home with proper health care and nutrition to the children instead of shifting the babies to Sishu Vihar.
These orders, however, do not authorize the TLCH to give children in adoption without the prior knowledge and permission of Government.
These orders will come into force with immediate effect.”
31. The material papers filed along with the CMAs go to show that the lower court also dismissed the petition on the ground that a crime is pending against the appellant/first petitioner before the concerned Magistrate for the offences under Sections 420, 468, 471 and 341 of I.P.C. on the file of Sanjeevareddy Nagar P.S. consequent upon the report given by the Project Director, District women and Child Development Agency, Hyderabad (marked as Ex.A29 in OP No.646 of 2001). The record also goes to show that in view of the criminal case pending against the first petitioner Home, the State Government has cancelled the permission.
32. In view of the above discussion and in the absence of renewal of recognition of the appellant-society and also in the absence of any material to show that the license of the first petitioner-Home was renewed after 10.6.2001 and also taking into consideration of the fact that a criminal case is pending against the first respondent-Home and also considering the decision of the State Government to supervise the first petitioner-home pursuant to the registration of a crime against it basing on the complaint lodged by the Project Director, District Women and Child Development Agency, Hyderabad, and also considering the fact that there is discrepancy in the Health reports of the baby, it has to be observed that the request of the first petitioner- Home seeking appointment of prospective foreign adoptive parents as guardian to the children cannot be accepted and the learned Family Judge has rightly negatived such prayer and hence it has to be held that the orders of the Court below do not suffer from any illegality or infirmity and they do not need any interference by this Court.
33. Hence, all the CMAs are dismissed. No costs.