PETITIONER: SUMANLAL CHHOTALAL KAMDAR ETC. Vs. RESPONDENT: MISS ASHA TRILOKBHAI SHAH ETC. DATE OF JUDGMENT09/05/1995 BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) HANSARIA B.L. (J) CITATION: 1995 AIR 1892 1995 SCC (3) 700 JT 1995 (5) 165 1995 SCALE (3)553 ACT: HEADNOTE: JUDGMENT:
THE 9TH DAY OF MAY, 1995
Present:
Hon’ble Mr. Justice R.M.Sahai
Hon’ble Mr. Justice B.L.Hansaria
Mr. P.H. Parekh, Ms. Smrita Mishra, Mr. N.K.Sahoo, Advs. for
the appellants.
Mr. S.Ganesh, Mr. C.H.Patel, Ms. Reema Bhandari, Mr.
M.N.Shroff, Mr. K.V.Sreekumar and Ms. Kamini Jaiswal, Advs.
for the Respondents.
JUDGMENT
The following Judgment of the Court was delivered:
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 5403-04 OF 1995
[Arising out of S.L.P.(C) Nos.3662-63 of 1989]
Sumanlal Chhotalal Kamdar etc. ….. Appellants
Versus
Miss Asha Trilokbhai Shah etc. ….. Respondents
JUDGMENT
R.M. Sahai, J.
An important question in relation to the adoption of
infants from orphanage or ashrams by foreign nationals is
raised by the appellants, who claim to be social workers.
They approached the High Court, invoked its appellate
jurisdiction against the order passed by the District Judge,
Rajkot, allowing the application filed by Superintendent,
Kathiawar Nirashrit Balashram as Power of Attorney holder of
a Norwegian couple under Section 7 of the Guardians and
Wards Act, 1890 and appointing the Norwegian couple as the
guardian of the child with certain conditions mentioned in
the order. By the time the appeal came up for hearing, the
law of adoption by foreign nationals was streamlined by this
Court in two decisions: Lakshmi Kant Pandey v. Union of
India (1984) 2 SCR 795 and Laxmi Kant Pandey v. Union of
India & Anr. (1985) Supp. 3 SCR 71. The learned Single
Judge, therefore, after examining the conditions imposed by
the District Judge held that the guidelines laid down by
this Court had been scrupulously followed. The order was
maintained in appeal as well.
The guidelines laid down by the Court are quite
exhaustive. What is urged is that they are not being carried
out either in letter or spirit. It is, therefore, necessary
to reiterate the guidelines laid down by this Court in the
case of Lakshmi Kant Pandey (supra) and further make it
clear that whenever an application is filed for permission
to adopt a child by a foreign national then the guidelines
would be strictly adhered to. The authority permitting
adoption should explain to the biological parent of the
child about the nature and effect of the adoption and the
possible permanent loss of contact from the child. In
absence of a finding that the authorised officer took
precaution to explain the effect of adoption it may be
rendered infirm. This is demonstrated by the facts of this
case as the Superintendent, as holder of Power of Attorney
of the Norwegian couple, became the applicant and as
Superintendent of the Ashram gave the child in adoption.
That was not proper. It was the duty of the Superintendent
to have contacted the mother and the father, if they were
known, and to explain to them the effect of adoption unless
they were not available. However, we do not interfere with
the orders passed by the courts below, but as indicated
above, the guidelines have to be enforced strictly, as
violation of the same may not only render the adoption
infirm, but may lead to proceeding against the person
infringing the same.
The appeals are thus disposed of by reiterating the
guidelines laid down by this Court and stating that any
violation of these or non-compliance may lead to adoption
being declared invalid and expose the persons concerned to
strict action including prosecution.
