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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;

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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

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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:  "\005 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

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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. \005."

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

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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

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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.