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CASE NO.: Appeal (civil)  6492 of 2005

PETITIONER: St. Theresa’s Tender Loving Care Home & Ors.                                     

RESPONDENT: State of Andhra Pradesh                                  

DATE OF JUDGMENT: 24/10/2005

BENCH: ARIJIT PASAYAT & ARUN KUMAR

JUDGMENT: J U D G M E N T (Arising out of S.L.P (C) No.9412 of 2003)

ARIJIT PASAYAT, J.

       Leave granted.

       The basic issue involved in this appeal is whether the  appellant no.1 should be permitted to make arrangement for  adoption of a child named Sahiti presently about five years  by appellant nos. 2 and 3. Appellant no.1 claims to be an  organization interested in the welfare of abandoned children  and to secure a congenial atmosphere for their upbringing.   Challenge in this appeal is to an order dated 23.12.2002  passed by the Andhra Pradesh High Court dismissing the  appeal purported to have been filed under Section 19(1) of  the Family Courts Act, 1984 (in short the ’Act’) and Section  47 of the Guardians and Wards Act, 1890 (in short the  ’Guardians Act’). The appeal before the Andhra Pradesh High  Court was filed by the appellants questioning correctness of  the order dated 8.7.2002 passed by the learned Judge, Family  Court, Secunderabad, rejecting the prayer made by the  appellants under Sections 7 to 10 of the Guardian Act.   Stand of the appellants before the Family Court was that it  is a society registered under the Andhra Pradesh (Telangana  Area) Public Societies Registration Act, 1350 Fasli (in  short ’Societies Act’) purportedly for carrying social  service activities.  One of its main objectives is to  provide shelter to abandoned children more particularly by  unwed mothers, and as noted above to see them comfortably  settled in adopted homes.  The appellants 2 and 3 are  residents of U.S.A.  According to petition they were married  on 19.10.1999.  They had earlier adopted one son, but wanted  to adopt a female child from India and for that purpose  wanted to adopt the girl named Sahiti, born on 14.6.2000.  The claim that they are well settled in life with decent  income,  would be eligible for adopting the child and also  were sure to provide a happy home to the adopted child.  The  minor child Sahiti was stated to be daughter of an unmarried  mother by name Esther, a native of Hyderabad and earning  livelihood as a labourer. Due to social stigma she  relinquished the child in favour of the appellant no.1 on  14.6.2000 and executed a Relinquishment Deed. The child  suffered from various ailments and her adoption in India did  not materialize.  On that ground the Voluntary Coordination  Agency( in short ’VCA’) gave clearance for the minor to be  given in adoption abroad.  It was stated in the petition  that inquiries made by appellant no.1 revealed that none of

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her relatives were ready and willing to take care of the  minor. Since 14.6.2000 the child has been under the care and  custody of appellant no.1.  The State of Andhra Pradesh  represented by the Director of Women Development and Child  Welfare Department resisted the claim.  Their stand was that  it had come to the notice of the Government that some  unscrupulous organizations in Andhra Pradesh were indulging  in child trafficking. With a view to curb menaces, the  Government had issued G.O.Ms. No.16 of 2001 banning  relinquishment of a child.  Since the claim of the appellant  was based primarily on a Relinquishment Deed purported to  have been executed by the mother of the child, inquiry was  directed to be conducted by the Crime Branch of CID along  with other cases.  After inquiry, Crime Branch (CID)  reported that the Relinquishment Deed was a fake and  fabricated document and the witnesses to the Relinquishment  Deed were employees of appellant no.1. Therefore, paper  notification dated 4.6.2001 was made calling for claims by  biological parents within 30 days in respect of child Sahiti  and eight other cases.  The Government of India had also  addressed to the Central Adoption Resource Agency ( in short  ’CARA’) about the false claim made by appellant no.1 and  requested to initiate action against appellant no.1. The  Family Court rejected the application holding that the VCA  issued no objection certificate on the ground that Indian  parents had refused to adopt the child on the ground that  she was suffered from skin disease.  The Family Court was of  the view that the so called reasons did not merit  acceptance.  The child was also referred to child study  report which indicated that the child did not suffer from  any ailment. It was noted that letters of rejection by  Indian parents were not filed and the efforts of VCA for in  county adoption were not established.  It was noted that the  effort was to be made in the light of decision of this Court  in Lakshmi Kant Pandey v. Union of India (1984 (2) SCC 244).   It was noted that in term of G.O.Ms. No.16 of 2001  relinquishment of a child by biological parents on grounds  of poverty, number of children or unwanted girl child could  not be permitted. Accordingly the petition filed was  rejected.

       The view of the Family Court was affirmed by the High  Court.  High Court noticed that appellant no.1 based its  claim on fabricated document and there was no genuine effort  to see that the child was adopted by Indian parents.

       In support of the appeal learned counsel for the  appellants submitted that all possible efforts have been  made to see that the child is adopted by Indian parents.  It  is not a fact that the child was not suffering from  ailments.  If the child is kept in the care and custody of  the respondent no.1 and is sent to the children’s home it  would be traumatic for the child who has spent five years  with the appellant no.1 quite happily.  The State Government  has accepted in public interest litigation that the children  who have been transferred to Shishu Vihar run by the State  Government are in a very pathetic condition.  More than 100  children have lost their lives due to negligence on the part  of the authority running the home and because of poor  medical care, and even many of the children have ran away.  It is stated that all possible efforts have been made to  find out Indian parents without success.  The request of  appellants 2 and 3 for adopting the child should have been  accepted as they were willing to adopt the child. Because of  prolonged litigation, they have shown some reluctance.

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Therefore, permission should be given to appellant no.1 to  arrange adoption by way of inter-country adoption.                                                              

       In Lakshmi Kant Pandey case (supra) the guidelines and  the norms to be followed in the case of adoption by  foreigners were indicated in detail.  

       It is obvious that in a civilized society the  importance of child welfare cannot be over-emphasized,  because the welfare of the entire community, its growth and  development, depends on the health and well-being of its  children. Children are a "supremely important national  asset" and the future well-being of the nation depends on  how its children grow and develop. The great poet Milton put  it admirably when he said : "Child shows the man as morning  shows the day" and the Study Team on Social Welfare said  much to the same effect when it observed that "the physical  and mental health of the nation is determined largely by the  manner in which it is shaped in the early stages". The child  is a soul with a being, a nature and capacities of its own,  who must be helped to find them, to grow into their maturity  into fullness of physical and vital energy and the utmost  breath, depth and height of its emotional, intellectual and  spiritual being; otherwise there cannot be a healthy growth  of the nation. The child is father of the man, said  Wordsworth in "My Heart Leaps up". Now, obviously children  need special protection because of their tender age and  physique, mental immaturity and incapacity to look after  themselves. That is why there is a growing realisation in  every part of the globe that children must be brought up in  an atmosphere of love and affection and under the tender  care and attention of parents so that they may be able to  attain full emotional, intellectual and spiritual stability  and maturity and acquire self-confidence and self-respect  and a balanced view of life with full appreciation and  realisation of the role which they have to play in the  nation building process. Without that the nation cannot  develop and attain real prosperity because a large segment  of the society would then be left out of the developmental  process. In India this consciousness is reflected in the  provisions enacted in the Constitution of India, 1950 (in  short the ’Constitution’). Clause (3) of Article 15 enables  the State to make special provision, inter-alia, for  children and Article 24 provides that no child below the age  of fourteen years shall be employed to work in any factory  or mine or engaged in any other hazardous employment.  Clauses (e) and (f) of Article 39 provide that the State  shall direct its policy towards securing inter-alia that the  tender age of children is not abused, that citizens are not  forced by economic necessity to enter avocations unsuited to  their age an strength and that children are given  opportunities and facilities to develop in a healthy manner  and in conditions of freedom and dignity and that childhood  and youth are protected against exploitation and against  moral and material abandonment. These constitutional  provisions reflect the great anxiety of the constitution  makers to protect and safeguard the interest and welfare of  children in the country.  As was observed by a learned  Justice Children are innocent, vulnerable and dependent.   Abondoning children and encluding good foundation of life  for them is a crime against humanity.  Children cannot and  should not be treated as chattels or saleable commodities or  play things.  For full and harmonious development of their  personality, children should grow up in an atmosphere of

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happiness, love and understanding.  In old Testament  Proverbs , XXII it is said "Train up a child in the way he  should go, and when he is old, he will not depart from it".   In "The Crescent Moon" Rabindranath Tagore said "I do not  love him because he is good, but because he is my little  child".  The Government of India has also in pursuance of  these constitutional provisions evolved a National Policy  for the Welfare of Children. This Policy starts with a goal- oriented perambulatory introduction:          The nation’s children are a supremely  important asset. Their nurture and solicitude are  our responsibility. Children’s programme should  find a prominent part in out national plans for  the development of human resources, so that our  children grow up to become robust citizens,  physically fit, mentally alert and morally  healthy, endowed with the skills and motivations  needed by society. Equal opportunities for  development to all children during the period of  growth should be our aim, for this would serve out  larger purpose of reducing inequality and ensuring  social justice.          The measures are designed to protect children against  neglect, cruelty and exploitation and to strengthen family  ties "so that full potentialities of growth of children are  realised within the normal family neighborhood and community  environment". The National Policy also lays down priority in  programme formation and it gives fairly high priority to  maintenance, education and training of orphan and destitute  children. There is also provision in the National Policy for  constitution of a National Children’s Board. It is the  function of the National Children’s Board to provide a focus  for planning, review and proper coordination of the  multiplicity of services striving to meet the needs of  children and to ensure at different levels continuous  planning, review and coordination of all the essential  service.         The essence of the directions given in Lakshmi Kant  Pandey case (supra) is as follows: (1)Every effort must be made first to see if  the child can be rehabilitated by adoption  within the country and if that is not  possible, then only adoption by foreign  parents, or as it is some time called ’inter- country adoption’ should be acceptable. (2) Such inter-country adoption should be  permitted after exhausting the possibility of  adoption within the country by Indian  parents.   

(3) There is a great demand for adoption of  children from India and consequently there is  increasing danger of ill-equipped and  sometimes even undesirable organisations or  individuals activising themselves in the  field of inter-county adoption with a view to  trafficking in children.

(4) Following are the requirements which  should be insisted upon so far as a foreigner  wishing to take a child in adoption is  concerned. In the first place, every  application from a foreigner desiring to  adopt a child must be sponsored by a social  or child welfare agency recognised or

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licensed by the government of the country in  which the foreigner is resident. No  application by 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 adoption or by  any institution or centre or home to which  children are committed by the juvenile court.  This is essential primarily for three  reasons.

Firstly, it will help to reduce, if not  eliminate altogether, the possibility of  profiteering and trafficking in children,  because if a foreigner were allowed to  contact directly agencies or individuals in  India for the purpose of obtaining a child in  adoption, he might, in his anxiety to secure  a child for adoption, be induced or persuaded  to pay any unconscionable or unreasonable  amount which might be demanded by the agency  or individual procuring the child. 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, because, where  the application for adopting a child has not  been sponsored by a social or child welfare  agency in the country of the foreigner, there  would be no proper and satisfactory home  study report on which the court can rely.  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. The record shows that  in every foreign country where children form  India are taken in adoption, there are social  and child welfare agency licensed or  recognised by the government and it would not  therefore use any difficulty, hardship or  inconvenience if it is insisted that every  application form a foreigner for taking a  child in adoption must be sponsored by a  social or child welfare agency licensed or  recognised by the government of the county in  which the foreigner resides. 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

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welfare agency must be licensed or recognised  by the government of the foreign country and  the court should not make an order for  appointment of the foreign country and the  court should not make an rode for appointment  of a foreigner as guardian unless it is  satisfied that the application of the  foreigner for adopting a child has been  sponsored by such social or child welfare  agency.

(5) The position in regard to biological  parents of the child proposed to be taken in  adoption has to be noted. What are the  safeguards which are required to be provided  insofar as biological parents are concerned?  We may make it clear at the outset that when  we talk about biological parents, we mean  both parents if they are together or the  mother or the father if either is alone. Now  it should be regarded as an elementary  requirement that if the biological parents  are known, they should be properly assisted  in making a decision about relinquishing the  child for adoption, by the institution or  center 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 to 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.

(6) But in order to eliminate any possibility  of mischief and to make sure that the child  has in fact been surrendered by its  biological parents, it is necessary that the  institution or center or home for child care  or social or child welfare agency to which  the child is surrendered by the biological  parents, should take from the biological  parents a document of surrender duty signed  by the biological parents and attested by at  least two responsible persons and such  document of surrender should not only contain  the names of the biological parents and their  address but also information in regard to the  brother of the child and its background,  health and development.

But where the child is an orphan, destitute  or abandoned child and its parents are not  known, the institution or center or home for  child card or hospital or social or child

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welfare agency in whose care the child has  come, must try to trace the biological  parents of the child and if the biological  parents can be traced name it is found that  they do not want to take back the child, then  the same procedure as outlined above should  as far as possible be followed. But if for  any reason the biological parents cannot be  traced, then there can be no question of  taking their consent or consulting them. It  may also be pointed out that the biological  parents should not be induced or encouraged  or even be permitted to take a decision in  regard to giving of a child in adoption  before the birth of the child or within a  period of three months from the date of  birth. This precaution is necessary because  the biological parents must have reasonable  time after the birth of the child to take a  decision whether to rear up the child  themselves or to relinquish it for adoption  and moreover it may be necessary to allow  some time to the child to overcome any health  problems experienced after birth.

(7)     Of course, it would be desirable if a  Central Adoption Resource Agency is set up by  the Government of India with regional  branches at a few centers which are active in  inter-country adoptions. Such Central  Adoption Research Agency can act as a  clearing house of information in regard to  children available for inter-country adoption  and all applications by foreigners for taking  Indian children in adoption can then be  forwarded by the social or child welfare  agency in the foreign country to such Central  Adoption Resource Agency and the latter can  in its turn forward agencies in the courts.  Every social or child welfare agency taking  children under its care can then be required  to sent to such Central Adoption Resource  Agency the names and particulars of children  under its care who are available for adoption  and the names and particulars of such  children can be entered in a register to be  maintained by such Central Adoption Resource  Agency."

       In terms of this Court’s decision in Lakshmi Kant  Pandey case (supra), CARA was formed and it published  "Guidelines for adoption".  Under these guidelines every  State has a VCA to co-ordinate and oversees inter-state  adoptions.

       It is pointed by Mr. Colin Gonsalves who was requested  to assist in the matter though the intervention application  filed by him on behalf of Parchuri Jamuna was rejected, that  in some States the VCA is a non-governmental organization  (in short ’NGO’) and in some other States the Department of  Women and Child Development.  In the State of Andhra  Pradesh, the said Department is VCA. Several guidelines have  been issued from time to time.  The Government of India,

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Ministry of Welfare has also issued directions.  On the  basis of Lakshmi Kant Pandey case (supra) the Government of  India has issued certain guidelines vide its  ResolutionNo.13-33/85-CH(AC) dated 4th July, 1989.   Subsequently, some clarifictory orders were passed by this  Court on 19th September, 1989, 14th August, 1991, 29th  October, 1991, 14th November, 1991 and 20th November,  1991.  A Task Force was constituted on 12th August, 1992  under chairmanship of retired Chief Justice of this Court.   Report was submitted by the Task Force on 28.8.1993.  On the  basis of the recommendations made certain guidelines were  also issued by the Ministry of Welfare Resolution dated  29th May, 1995.   

       In the background of what has been noticed by the  Family Court and the High Court it is crystal clear that the  orders passed do not suffer from any infirmity to warrant  interference.  It has been printed out by learned counsel  for the State and Mr. Gonsalves, that the appellant no. 1  has been prosecution for offences punishable under various  provisions of the Indian Penal Code, 1860 (in short’IPC’).   The accusations relate to cheating, manipulation/fabrication  of documents.  Some of the functionaries of the appellant  no. 1 have already been convicted while permitting any  organization to keep a child or give him or her in adoption  its credentials are to be minutely scrutinized.  It should  be ensured that behind the mask of social service or  upliftment and evil design of child trafficking is not  lurking.   It is the duty of the State to ensure a safe roof  over an abandoned child.  Keeping in view the welfare of the  child all possible efforts should be made by the State  Governments to explore e possibility of adoption under the  supervision of the designated agency.  Keeping in view the  guidelines indicated by this Court in Lakshmi Kant Pandey  case (supra) adoption by foreign parents may in appropriate  cases be permitted.

       While making the requisite and prescribed  exercise it  has to be kept in mind that child is a precious gift and  merely because he or she for various reasons is abandoned by  the parents that cannot be a reason for further neglect by  the society.  It is urged that some account of vehemence by  learned counsel for the appellants that the children homes  run by the State Governments are really no place when a  child is to be placed.  They suffer from neglect, proper  care is a myth and a large number of children have lost  their lives or are unable to bear the cruelties meted out.  If the grievances are true, it is a matter of serious  concern. The Central Government and the State Government  would do well to look at these problems with the  humanitarian approach and concern they deserve.

       It would be appropriate for them to keep the following  lines from Longfellows "The Children’s Hour" in mind.   "Between the dark and the daylight, when the night is  beginning to lower, comes a pause in the day’s occupations,  that is known as the Children’s Hours"

       With the aforesaid observations the appeal is dismissed  with no orders as to costs.                              

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