JUDGMENT
Devinder Gupta, C.J.
1. These petitions filed under Article 227 of the Constitution of India seeks to have the Common Order dated 11.4.2002 passed by the learned Judge, Family Court, Hyderabad in I.A.Nos.435 of 2002 and batch set aside whereby the Interlocutory Applications filed by the unofficial respondents hereinunder Order 1, Rule 10 of the Code of Civil Procedure to implead them as parties to the main Petitions, filed under Section 7 of Guardians and Wards Act, were allowed. Since common questions arose for consideration, all the petitions were heard together and are being disposed of by this Common Order.
2. St. Theresa’s Tender Loving Care Home, Sanathnagar, Hyderabad – Petitioner No. 1 is a Society registered under the Andhra Pradesh (Telangana Area) Public Societies Registration Act. As a part of its social activities, it runs an Orphanage at Sanathnagar, Hyderabad. The Supreme Court in Lakshmi Kant Pandey v. Union of India, , laid down the normative and procedural safeguards to be followed for in-country and inter-country adoptions of Indian children. On the basis of the guidelines issued by the Government of India pursuant to the said judgment of Apex Court, 1st petitioner-Society (hereinafter referred to as “the Society”) claims that it was granted a certificate recognising it as an agency for processing and filing of the applications before the competent Court for declaration of foreigners as guardian of Indian Children under the Guardian and Wards Act, 1890. The case of the Society is that the validity of the certificate of recognition was extended till 5th October, 2001. On 13.8.2001 application for renewal of the said certificate was filed which was- required to be forwarded by the Government of Andhra Pradesh within a period of two months. The Central Adoption Resource Agency (CARA) did not give any response to the application, therefore, under Clause 5.5 of CARA Guidelines, the recognition of the society will be deemed to have been extended for a further period of two years. It is alleged that the society processes applications of the Indian as well as foreign nationals for adoption of orphan children and it has been recognised to be an agency for processing of such applications by CARA.
3. The Society represented by its Chief Co-ordinator and also as the holder of General Power of Attorney of adoptive parents of foreign nationals filed as many as twenty Original Petitions under the provisions of the Guardians and Wards Act, 1890 (for short “the Act”) before the Judge, Family Court, Hyderabad for grant of certificates of guardianship. Government of Andhra Pradesh through its Principal Secretary, Department of Women Development and Child Welfare was also impleaded as one of the respondents in all the Original Petitions. While the said petitions were pending consideration before the Family Court, applications were filed by (1) Smt P. Jamuna of Gramya Resource Center for Women, (2) Mr. B Bhukya, Assistant Professor of History, Osmania University and (3) Mr. Isidore Phillips, a social worker, under Order 1 Rule 10 of the Code of Civil Procedure, seeking their impleadment as party respondents in the petitions filed by the society. It may be noticed that while Mr. Isidore Philips sought to be impleaded as Respondent No. 3 in four Original Petitions viz., O.P. Nos. 150, 634, 1930 and 647 of 2001, Smt. P. Jamuna and Mr. Bhukya sought their impleadment as respondents 3 and 4 in the other Original Petitions.
4. Mr. Bhukya claims that he is Lambada by caste and alleged that child traffickers, taking advantage of the precarious position of lambada tribal people, have been adopting dubious methods in purchasing lambada children for a pittance and selling them for foreign currency. He claims to be a co-author of a publication on Lambada Tribes commissioned by UNICEF alleged to be dealing with the child trafficking and also claims to be the advisor to the Lambada Rights Struggle Committee. Smt. P. Jamuna, Secretary of Gramya Resource Centre for Women claims to be striving for protection of the rights of women and children and alleged to be playing prominent role in exposing the inhuman and illegal trafficking in children in the State of Andhra Pradesh in the name of inter-country adoption. Mr. Isidore Phillips claims himself to be a social activist engaged with Divya Disha Registered Society for empowering individuals and organisations in Holistic developments and campaigning the rights and protection of children including rehabilitation of youth and street children.
5. The implead petitioners alleged that they had nothing personal against the petitioners in the main petitions filed under the Act but they desired to come on record only in public interest and to assist the Court with a view to ensure that child trafficking racket in the name of inter-country adoption does not go on unhindered by the default of all the authorities empowered under CARA guidelines. They further alleged that CARA had been issuing No Objection Certificates for inter-country adoptions without applying its mind as to the suitability of the proposed parents for the child and without making all possible efforts to put the children in Indian Home as required by its guidelines. The adoptive parents have no specific reasons for adopting an Indian child and they were obviously encouraged to go for adoption only to claim certain tax benefits. Implead petitioners also alleged that the State of Andhra Pradesh and CARA are acting under pressure from embassies, of western countries and also Union Ministry of State for Social Justice and Environment. CARA had been issuing No Objection Certificates dubiously for inter-country adoptions and denying permissions for in-country adoptions. Therefore, they prayed that it would be just and necessary to permit them to come on record as respondents in the respective Original Petitions.
6. The State of Andhra Pradesh did not file any reply to the applications for impleadment whereas the revision petitioners vehemently opposed the same by filing reply questioning the maintainability of the applications and also the locus standi of the applicants to be impleaded as parties to the petitions. The society strongly denied that it had ever indulged in any illegal activity. It was denied that there was no authority for the society to contest the applications. The petitioners claimed that the applications for impleadment had been filed with mala fide intention to defame the society. It was alleged that Smt. Jamuna had asked the Chief Co-ordinator of the Society to rescue twin babies of a lambada family. When information was received that the infant babies were sought to be killed by their parents due to their incapacity to brought up, the Chief Co-ordinator of the Society took the infants and went to the dwelling place of the couple to take their signatures on relinquishment deeds. The mother-in-law of the lady demanded a golden necklace to her daughter-in-law as a consideration for the babies. The Chief Co-ordinator refused to accede to the request and left the children at their home. Later on the parents brought the children to the Orphanage and the twins were given in inter-country adoption. On coming to know of the progress of the children, Smt. Jamuna demanded auto rickshaw for the biological father of the children. When the Co-ordinator refused for it, she developed animosity, which is reflected, in her conduct in moving interlocutory applications seeking impleadment. It was also pointed out that CARA guidelines had been prepared in accordance with the decision of the Supreme Court in Lakshmi Kant Pandey’s case (supra) and were being strictly followed. The State Government was taking due care in the matter. In case the implead petitioners desire that some changes are required in the CARA guidelines, instead of getting themselves impleaded in individual proceedings, the proper course for them would be to approach the appropriate authorities. It was urged that implead petitioners were neither necessary nor proper parties to the petitions and cannot be permitted to be impleaded particularly in a matter in which they claim to be having no interest at all.
7. Family Court considered the question whether the proposed persons could be permitted to come on record on the basis of their claim that they have no personal interest in the matter but they being proper parties may be permitted to come on record in the interest of justice and for effective adjudication of the matter in controversy.
8. The Family Court by the order impugned allowed the applications and in doing so was swayed with the sole consideration that implead petitioners were social workers and their intervention would not in any way affect the fair trial of the Original Petitions. Rather their presence would help in protecting the interest and welfare of the children. Judge, Family Court, further observed that any objection in regard to the proposed guardianship can usually be raised before the Family Court concerned only by persons having interest and since the applicants were social workers and welfare of the children was of the paramount consideration, it will be permissible for the Court to permit the applicants to be added as proper parties for complete adjudication of the rights involved.
9. We heard the learned Counsel appearing for the parties and were taken through the entire material on record.
10. Learned Counsel appearing for the petitioner-society vehemently contended that the Family Court had exercised its jurisdiction with material irregularity in ordering the applications when implead petitioners are neither necessary nor proper parties. He relied upon the decision of the Apex Court in Razia Begum v. Anwar Begum, , and referred to the provisions of Sections 10 and 11 of the Act. He would submit that only that person who has interest in the child can be permitted to be added as a party to the petition but not a person who has no interest in the child. The implead petitioners themselves alleged before the Family Court that they were not having any personal interest in the children. Merely on their bald allegation that the Government of Andhra Pradesh or CARA might not be acting properly in discharge of their obligation in terms of the decision of the Supreme Court in Lakshmi Kant Pandey’s case, it is argued that the implead petitioners who are otherwise have no interest in the matter could not have been directed to be impleaded as parties to the petitions.
11. Learned Counsel for the implead petitioners tried to support the impugned order urging that there were numerous allegations against the agencies in such like matters and in some cases even criminal proceedings were initiated and were pending. Irregularities had also come to the fore in the matter of letter of relinquishments obtained from the parents of the children. Therefore, in order to safeguard the interest and welfare of the children of lambada community and to see whether the procedure, as contemplated by law has been properly followed by the concerned authorities, the implead petitioners were desirous of coming on record. It was further urged that once an order had been passed by the Family Court, in exercise of the jurisdiction conferred on it, the same is not liable to be interfered with in a petition filed under Article 227 of the Constitution which is only a supervisory jurisdiction. According to learned Counsel, even in exercise of the revisional jurisdiction under Section 115 of the Code of Civil Procedure, such an order would not be liable to be interfered with. He placed reliance upon the decisions of the Apex Court in John Singh v. Sukh Pal Singh, , and U.P. Awas Evam Vikas Pareishad v. Gyan Devi, (1995) 2 SCC 3265.
12. The question of addition of parties is generally not one of initial jurisdiction of the Court but of judicial discretion, which has to be exercised in the light of all the facts and circumstances of the case. Such an order passed in allowing the application for addition of parties, no doubt will not be liable to be interfered with, even if there is jurisdictional error on the part of the Court granting such application unless it is shown that the Court has exercised the jurisdiction not vested in it by law or had failed to exercise jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity. If in exercise of discretion, the Court takes into consideration irrelevant or extraneous matters or ignores relevant or germane circumstances, the exercise of power would be bad and can be interfered with in revision.
13. In Razia Begum’s case (supra) it was held that in a suit relating to property, in order that a person may be added as a party, he should have direct interest as distinguished from a commercial interest, in the subject-matter of the litigation. Where the subject-matter of litigation is a declaration as regards status or a legal character, the rule of present or direct interest- may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position to effectually and completely adjudicate upon the controversy.
14. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, , referring to Razia Begum’s case, it was held that a clear distinction has been drawn between suits relating to property and those in which the subject-matter of litigation is a declaration as regards status or legal character. In the former category the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party. At para 14, the Supreme Court observed thus:
The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer. i.e., he can say that the litigation may lead to a result, which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck and Sons Ltd., (1956) 1 All ER 273 = (1956) 1 QB 357, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England, (1950) 2 All ER 605, 611, that their true test lies not so much in an analysis of what are the constituents of the applicants’ rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Deviin, J, has stated:
“The test is ‘May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights’.”
15. From the above decisions, it is clear that in order that a person is added as a party to the proceeding, it must be shown that the person is directly or legally interested in the action and that the relief sought in the proceeding will directly affect the intervener in the enjoyment of his legal rights, if he is not added as a party. However, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding the party it would be in a better position to effectually and completely adjudicate upon the controversy. Such a person is called a proper party, whose presence is necessary for complete and final adjudication of questions involved in the proceeding. Such person is distinguished from a necessary party. Thus a person may not be necessary party yet he may be a proper party.
16. Before we proceed to examine the case of the implead petitioners in the light of the aforementioned principles, we may briefly refer to the guidelines of CARA issued by the Government of India.
17. In Lakshmi Kant Pandey v. Union of India, (supra) the Supreme Court has laid down the normative and procedural safeguards to be followed in the matter of inter-country and in-country adoptions. Pursuant to the judgment, the Ministry of Welfare, Government of India has issued certain guidelines in 1989. These guidelines were subsequently revised in 1995 pursuant to the recommendations made by a Task Force constituted by the Government of India under the Chairmanship of Justice P.N. Bhagwati, former Chief Justice of India. The object of the revised guidelines is to provide a sound basis for adoption within the framework of the norms and principles laid down by the Supreme Court of India in a series of orders passed in Lakshmi Kant Pandey’s case. Under the revised guidelines, the Government of India in the Ministry of Welfare has set up a Central Adoption Resource Agency (CARA) to act as a clearing house of information in regard to children available for in-country and inter-country adoption and to regulate, monitor and develop programmes for the rehabilitation of children through adoption.
18. Chapter 2.13 of the revised guidelines deal with the functions of CARA. The functions include receiving of applications along with requisite documents of foreigners desirous of taking Indian children in adoption through a recognised social or child welfare agency in the foreign country or through an organisation owned or operated by the Government in that country; to forward the applications to one of Indian social or child welfare agencies; to receive names and particulars of children available for adoption who are under the care of Indian social or child welfare agencies recognised by CARA and to maintain a register containing the names and other particulars of such children; to receive periodical data from the agencies about the children admitted and the children given in adoption, in-country as well as inter-country; to monitor and regulate the working of agencies; to receive data from competent Courts about children whose guardianship has been awarded in favour of foreign adoptive parents; to obtain periodical progress reports of children from foreign adoptive parents as well as from recognised social or child welfare agencies in foreign countries and to take such follow up action as deemed necessary; to assist the Courts to cross-check or re-verify the information furnished to them by various sources including the placement agencies and scrutinising agencies or to provide an independent advice in matters relating to adoption of children etc. Chapter III deals with the role of the State Governments. Under the guidelines the State Government is to monitor the adoption programme within its jurisdiction and co-ordinate the activities of placement agencies, Voluntary Co-ordinate Agencies (VCAs) established in the State and Scrutinising Agencies. The guidelines also detail about the role to be played by the recognised Indian agencies (Chapter IV), recognition of Indian agencies for adoption (Chapter V), role of enlisted foreign agencies for adoption (Chapter VI), Voluntary Coordinating Agencies (VCAs) (Chapter VII), Constitution of scrutinising Agencies (Chapter VIII).
19. Under the revised guidelines, the State Government is required to separately maintain a list of all agencies handling in-country and inter-country adoption of children and it is required to identify those institutions/agencies, which have children who are legally free from adoption. The State Government is required to recognise the Indian Adoption Agencies for in-country adoption as per the procedure laid down and is also required to forward applications of Indian Agencies seeking recognition for inter-country adoption to the Central Adoption Resource Agency after proper verification according to the criteria laid down in the guidelines. Before a guardianship certificate is issued by the Family Court, a letter of relinquishment, VCA clearance, no objection certificate from CARA and other relevant documents such as the home study of the proposed guardians, no objection certificate from the agency which has scrutinised the application of the proposed foreign guardians, as also the approval from the scrutinising agency in India who scrutinises the applications, namely Indian Council of Child Welfare are required. It is only thereafter the Court is required to decide whether guardianship should be granted or not. In case there are any objections in respect of any proposed guardianship application, the same can be raised by the appropriate authority before the Family Court. The authorities are such which have been noticed by the Supreme Court in its decision in Indian Council Social Welfare v. State of A.P., .
20. From a close scrutiny of the CARA guidelines, it appears that a very stringent and adequate procedure has been laid down in the matter of in-country and inter-country adoptions of children to safeguard the interest and welfare of the children.
21. Before the Family Court, the Chief Co-ordinator of the society on behalf of the society and as GPA holder of the foreign adoptive parents of the children filed petitions under Section 7 of the Act for declaration of the adoptive parents as guardians of the Indian children for the purpose of inter-country adoption. Section 11 of the Act lays down the procedure to be followed on admission of an application. Sub-section (1) of Section 11 provides that where the Court is satisfied that there is ground for proceeding with the application, it shall fix a day for the hearing of the application and cause notice of the application and of the date fixed for the hearing to be served in the manner directed in the Code of Civil Procedure, on persons mentioned in Sub-clauses (i) to (iv) of Clause (a) of Sub-section (1). Sub-clause (iv) of Clause (a) of Sub-section (1) of Section 11 provides that the Court may cause notice of the application to be served on any person to whom in the opinion of the Court, special notice of the application should, be given. Persons mentioned in Sub-clause (i) of Clause (a) of Section 11 though are not necessary parties to the petition but can be said to be proper parties to whom the Court may issue notice and even persons to whom special notice may be given by the Court, as contemplated in Sub-clause (iv) should also be those who may be termed as proper parties and not to any third party, who in terms of the decision in Himchandmal’s case may be a necessary witness or may be having relevant information, who would neither be a necessary nor a proper party.
22. Admittedly, the implead petitioners are not necessary parties. Therefore, the question would be whether they are proper parties or not. The implead petitioners claim that they are proper parties on the ground that their presence is necessary for complete and final adjudication of the questions involved. Question involved is the welfare of the minor children to be given in adoption for which purpose, as already indicated above, adequate guidelines have been issued by the Ministry of Welfare, Government of India known as Central Adoption Resource Agency Guidelines. Though implead petitioners may belong to social organisation and striving hard for the welfare and interest of the children, but they cannot be said to be having any locus standi to appear before the Family Court and oppose the applications for grant of certificate of guardianship. In case they are having any information with them, they may do so by bringing those relevant facts or information before the Indian Council of Child Welfare, Andhra Pradesh. The mere fact that they might be in possession of some evidence with them, which they might like to produce in Court will not even make them proper parties, in terms of what is stated in Hirachandmal’s case supra. Possessing of relevant evidence on some of the questions involved alone is not sufficient to treat a person as a proper person to be impleaded as a party to the proceeding.
23. The object of the implead petitioners to come on record to safeguard the interest and welfare of the children to be given in adoption is laudable. But, in our considered opinion, there is no basis for their assumption or apprehension that the authorities would not adequately safeguard the interest of the children. When the Government of Andhra Pradesh in the Department of Women and Child Welfare is impleaded as party to the main petitions and there are guidelines to oversee the process of adoption as also the proceedings in the Court, it cannot be said that the interest of the children would not be properly safeguarded by the respective authorities who are bound to follow the guidelines issued by the Government of India. We have earlier noticed that under the CARA guidelines, the State Government was under an obligation to monitor the adoption programme within its jurisdiction and coordinate the activities of placement agencies and VCAs and scrutinising agencies (Chapter III, Para 3.3.). Further, even after the child is given in inter-country adoption, CARA is under an obligation to monitor the progress of the child by obtaining periodical progress reports of children from foreign adoptive parents as well as from foreign agencies. Therefore, it is not a case where the rule of present interest or direct interest can be relaxed as the CARA, the State Government and the authorities empowered under CARA would adequately safeguard the interest of the children.
24. One of the grounds urged by the implead petitioners is that CARA had been issuing NOCs dubiously for inter-country adoptions and denying permissions for in-country adoptions and, therefore, it would be just and necessary to permit them to come on record. Except making such vague statement, no materials are placed before the Court substantiating the same. Even otherwise also, we are of the view that such allegations cannot be gone into in these petitions. However, if in the opinion of the implead petitioners, the interest of the children has not been properly protected by the authorities concerned as required by law, it is always open to them to approach the appropriate forum, in accordance with law, for adequate directions to safeguard the interest and welfare of the children.
25. The allegations of malpractices, if any, against any specific organisation or in any specific case will have to be investigated into only by the State Government in terms of the decision in Indian Council Social Welfare v. State of A.P. (supra) for which purpose alone the implead petitioners are seeking impleadment.
26. Implead petitioners are not having any direct lis with the petitioners. Necessarily a line has been drawn between those having direct interest or those having legal interest or commercial interest. What is necessary is that the person must be directly or legally interested in the action. Implead petitioners are neither directly nor legally interested in the subject-matter of the Original Petitions pending before the Family Court. The Family Court did not properly consider these aspects. It took into consideration irrelevant factors, namely, the status of the implead petitioners that they are social workers and therefore it would be for the welfare of the children whether they are to be given in adoption, that the implead petitioners were added as parties to the petitions. Thus, the Family Court proceeded to exercise its jurisdiction vested in it with material irregularity for which reason the impugned order is liable to be interfered with. The two decisions relied upon by the learned Counsel appearing for the implead petitioners were in support of the view that such an order would not be liable to be interfered with. There is no dispute with the proposition laid therein. In these cases, we have come to the conclusion that the Family Court has exercised its jurisdiction with material irregularity and even on the basis of the ratio of the said decisions; the order is liable to be interfered with by this Court in exercise of the supervisory jurisdiction.
27. In result, the revision petitions must succeed. They are accordingly allowed. The impugned order of the learned Judge, Family Court, Hyderabad is set aside. The Interlocutory Applications seeking impleadment are dismissed. Parties are directed to bear their respective costs.