Adoption, Custody, Guardianship cases to be completed in Flat 2 MONTHS – SC

 

Laxmi Kant Pandey vs Union Of India on 3 December, 1986

Supreme Court of India
    PETITIONER:

LAXMI KANT PANDEY

 Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT03/12/1986

BENCH:

BHAGWATI, P.N. (CJ)

BENCH:

BHAGWATI, P.N. (CJ)

MISRA RANGNATH

CITATION:

 1987 AIR 232 1987 SCR (1) 383

 1987 SCC (1) 66 JT 1986 950

 1986 SCALE (2)913

ACT:

    Children--Adoption by Indian/Foreign parents--Guide- lines/directions given
to the Scrutinising Agencies with regard to its services and remuneration.

    Foster Care Homes & Recognised Placement Agencies--Duty to exchange with one
another information regarding Indian Parents wishing to adopt Indian children.

    Abandoned/destitute children--Duty of Hospitals/Nursing Homes to inform
Social Welfare Department/Collector regard- ing discovery or find of such
children.

    Hindu Adoptions & Maintenance Act, 1956, s.9(4)--Adop- tion of children--
Notice of application--Publication of--Notice need not be published.

    Juvenile Courts--Abandoned/destitute children--Decla- ration of--Release
order--Juvenile Court to complete inquiry within one month & pass the order--
High Court to supervise proper vigilance over Juvenile Courts--Release Order--
When can be dispensed with.

    Recognised placement agencies--Duty of Government to publish lists every
year--Recognised placement Agencies entitled to recover its costs incurred in
processing the application from the foreigner.

HEADNOTE:

    The Supreme Court in the judgment of Laxmi Kant Pandey v. Union of India
dated 6th February, 1984 and the supple- mental judgment dated 27th September,
1985 had formulated the normative and procedural safeguards to be followed in
giving an Indian child in adoption to foreign parents. Since there were certain
difficulties in implementing the afore- said norms and principles, the
petitioners moved the present criminal miscellaneous petitions for seeking
clarification/further directions in the matter. Disposing of the petitions,

384

    HELD: 1. When the court makes an order appointing a foreign parent as
guardian of a child with a view to its eventual adoption in the foreign country,
the court will provide that such amount shall be paid to the scrutinising agency
for its services as the court thinks reasonable having regard to the nature of
the case and the extent and volume of the services rendered by the scrutinising
agency. In case of an application for appointment of a foreign parent as
guardian of a child the Court would be justified in directing payment of any
reasonable amount varying be- tween Rs.450 and Rs.500 but in appropriate cases
where the courts so think fit. such amount may even exceed Rs.500. This amount
shall be directed to be paid to the scrutinising agency by the recognised
placement agency and such placement agency shall have the right to recover such
amount from the foreign parent whose application for guardianship it has
processed. This direction will also apply mutaris mutandis in cases where an
Indian parent makes an application for appointing himself or herself as guardian
of a child or a Hindu parent applies for permission to adopt a child under s.9
sub-s.(4) of the Hindu Adoptions and Maintenance Act, 1956 and the case is
referred to a scrutinising agency by the Court, but in such cases the amount to
be fixed by the Court for meeting the expenses of the scrutinising agency shall
not exceed Rs.150. [387G -- 388C]

    2.1 All nursing homes and hospitals which come across abandoned or destitute
children or find such children aban- doned in their precincts or otherwise shall
immediately give information in regard to the discovery or find of such children
to the Social Welfare Department of the concerned Government where such nursing
homes or hospitals are situate in the capital of the State and in other cases to
the Col- lector of the District and copies of such intimation will also be sent
to the Foster Care Home where there is such a home run by the Government as also
to the recognised place- ment agencies functioning in the city or town where
such nursing homes or hospitals are situate. [388F -- G] 2.2 Each Indian parent
who is registered with the Foster Care Home or a recognised placement agency as
a prospective parent wishing to take a child in adoption and who has been
informed by the recognised placement agency that a child is available for
adoption will be entitled to information about all the children available for
adoption in the group speci- fied by him, according to the consolidated list
maintained by the recognised placement agency. [389B]

    3. The Supreme Court had directed in paragraph 22 of the main judgment that
the notice of the application for guard- ianship in cases of adoption by foreign
parents should not be published in any newspaper because otherwise the biologi-
cal parents would come to know as to who are the parents taking the child in
adoption. This.direction must also cover the cases where

385

Hindu Parents make an application under s.9 sub-s.(4) of the Hindu Adoptions and
Maintenance Act, 1956. [389D -- E]

    4. No recognised placement agency shall make and process an application for
appointment of a foreigner as guardian of a child with a view to its eventual
adoption, unless the child has been in the custody of the recognised placement
agency for a period of at least one month before the making of the application
and it shall not be permitted to act merely as a post office or conduit pipe for
the benefit of an unrecognised agency. [390D -- E]

    5. Whenever a child is produced before the Juvenile Court by a recognised
placement agency for a release order declaring that the child is abandoned or
destitute so as to be legally free for adoption, the Juvenile Court must in all
such cases complete the inquiry within one month from the date of the
application and proper vigilance should be exercised by the High Court. High
Courts should call for monthly reports from the Juvenile Courts stating as to
how many applications for release orders, that is, for declaring children
abandoned or destitute, are pending before each Juvenile Court, when they were
filed and if they have not been disposed of within one month, what is the reason
for the delay. Where the Juvenile Court is not in existence, application for
release order is required to be made to the Social Welfare Department in the
capital of the State or to the Collector of the District in other places. The
Social Welfare Department or the Collector, as the case may be, will dispose of
such application within one month of its making. [391B -- D, F]

    6. The Court entertaining an application for appointment of a foreigner as
guardian of a child should not require the representative,of the recognised
placement agency processing the application to join the application as a co-
petitioner nor should the court insist on appointing such representa- tive as
joint guardian of the child alongwith the foreigner. [392C]

    7. Where a child is relinquished by its biological parents or by an unwed
mother under a Deed of Relinquishment executed by the biological parents or the
unwed mother it should not be necessary to go through the Juvenile Court or the
Social Welfare Department or the Collector to obtain a release order declaring
the child free for adoption but it would be enough to produce the Deed of
Relinquishment before the court which considered the application for appointment
of a foreigner as guardian of the child. [393B] 8.1 Where an abandoned or
destitute child is found by a recognised placement agency or is brought to it by
another social or child welfare agency or individual it should be open to such
recognised placement agency to transfer the child to its branch in another State
after the completion of the inquiry by the

386

juvenile court or Social Welfare Department or the Collec- tor, as the case may
be. Where such recognised placement agency has an associate social or child
welfare agency in another State, it should be open to the recognised placement
agency to transfer the child to such associate social or child welfare agency in
the other State, provided firstly, that the inquiry is complete by the juvenile
court or the Social Welfare Department or the Collector and a release order is
passed, and secondly, the associate social or child welfare agency has been
notified by the recognised placement agency as its associate to the Government
of the State where the recognised placement agency is functioning as also to the
Government of the State where the associate social or child welfare agency is
operating. If, for any compelling reason, it becomes necessary for the
recognised placement agency to transfer a child either to its own branch or to
an associate social or child welfare agency before completion of the inquiry by
the juvenile court or the Social Welfare Department or the Collector, as the
case may be, the recog- nised placement agency shall be allowed to do so after
obtaining permission of the juvenile court or the Social Welfare Department or
the Collector in that behalf. [394E -- 395A]

    8.2 The Government of India is directed (i) to publish at least once in a
year a list of recognised placement agencies and all their associate social or
child welfare agencies operating in each State in two leading newspapers; and
(ii) to send to the District Courts in each State through the High Court a list
of the recognised placement agencies functioning within the State together with
the names and particulars of their associate social or child welfare agencies.
Such list must be supplied to the District Judges at least Once in a year and
whenever any changes or modifications are made in the list, such change or
modifica- tions most be intimated to the District JUdges through the High Court.
[395 B -- C]

    9. The recognised placement agency processing the appli- cation of a
foreigner for being appointed guardian of a child with a view to its eventual
adoption, should be enti- tled to recover from the foreigner, cost incurred in
prepar- ing and filing the application and prosecuting it in court including
legal expenses, administrative expenses prepara- tion of child study report,
preparation of medical and I.Q. Reports, passport and visa expenses and
conveyance expenses and that such expenses may be fixed by the court at a figure
not exceeding Rs.6000. [395F]

    10. In case of a foreigner who has been living in India for one year or
more, the home-study report and other con- nected documents may be allowed to
the prepared by the recognised placement agency which is processing the applica-
tion of such foreigner for guardianship of a child with a view to its eventual
adoption and that in such a case the court should not insist on sponsoring of
such foreigner by a social or child welfare agency based in the

387

country to which such foreigner belongs nor should a home- study report in
respect of such foreigner be required to be obtained from any such foreign
social or child welfare agency. [396B]

    11. The court entertaining an application on behalf of a foreigner for being
appointed guardian of a child with a view to its eventual adoption need not
insist on security or cash deposit or bank guarantee and it should be enough if
a bond is taken from the recognised placement agency which is processing the
application and such recognised placement agency may in its turn take a
corresponding bond from the sponsoring social or child welfare agency in the
foreign country. [396D -- F]

JUDGMENT:

    ORIGINAL JURISDICTION: Criminal Misc. Petition No. 6693 of 1986 etc. in Writ
Petition (Crl) No. 1171 of 1982. Under Article 32 of the Constitution of India.
Petitioner-in-person.

    B. Datta, Additional Solicitor General, Jagdeep Kishore, T.V.S.N. Chari, Ms.
K. Jaiswal, D.N. Mishra, B.M. Bagaria, P.H. Parekh, M.K.D. Namboodri, Kailash
Vasdev, H.K. Puri, R.K. Mehta, S. Kaushal and C.V.S. Rao for the
Respondent/Applicant.

    The Judgment of the 'Court was delivered by

Crl. M.P. No. 3141/86

    BHAGWATI, C J: This application has been filed by the Indian Council for
Child Welfare for obtaining a direction that when it is required to act as a
scrutinising agency by the Court, a certain amount should be directed to be paid
to it for the scrutinising services rendered by it, since the scrutinising
services would require employment of staff and other necessary expenditure.
Though this application is made only by the Indian Council for Child Welfare, we
apprehend that all other scrutinising agencies must also be facing the same
difficulty. We would therefore direct that when the Court makes an order
appointing a foreign parent as guardian of a child with a view to its eventual
adoption in the foreign country, the Court will provide that such amount shall
be paid to the scrutinising agency for its services as the Court thinks
reasonable, having regard to the nature of the case and the extent and volume of
the services rendered by the scrutinising agency. We think that in the case of
an application for appointment of a foreign parent as guardian of a child the
Court would be justified in directing payment of any reasonable amount varying
between

388

Rs.450 and Rs.500 but in appropriate cases where the Court so thinks fit, such
amount may even exceed Rs.500. This amount shall be directed to be paid to the
scrutinising agency by the recognised placement agency which has proc- essed the
application of the foreign parent for being ap- pointed guardian of the child
with a view to its eventual adoption and the such placement agency shall have
the right to recover such amount from the foreign parent whose appli- cation for
guardianship it has processed. This direction will also apply mutatis mutandis
in cases where an, Indian parent makes an application for appointing himself or
her- self as guardian of a child or a Hindu parent applies for permission to
adopt a child under section 9 sub-section (4) of the Hindu Adoptions and
Maintenance Act, 1956 and the case is referred to a scrutinising agency by the
Court, but in such cases the amount to be fixed by the Court for meet- ing the
expenses of the scrutinising agency shall not exceed Rs.150. Both in the case of
an application on behalf of a foreign parents as also in the case of an
application on behalf of an Indian or Hindu parent, a copy of the order made by
the Court appointing the scrutinising agency shall be supplied to the
scrutinising agency immediately after the order is made, together with the
papers and documents sub- mitted to the Court in support of the application for
ap- pointment of guardian or for permission to adopt. Crl M.P. No. 3142/86

    This application has been made by the petitioner since according to the
petitioner there have been instances of illegal sales of babies. We may point
out that by its very nature it is not possible to devise a fool-proof formula
which will in all cases prevent illegal sales of babies but a procedure can and
must be formulated which will definitely reduce the possibility of such illegal
sales. With this end in view, we would direct that all nursing homes and hospi-
tals which come across abandoned or destitute children or find such children
abandoned in their pre points or other- wise shall immediately give information
in regard to the discovery or find of such children to the Social Welfare
Department of the concerned Government where such nursing homes or hospitals are
situate in the capital of the State and in other cases to the collector of the
District and copies of such intimation will also be sent to the Foster Care Home
where there is such a home run by the Government as also to the recognised
placement agencies functioning in the city or town where such nursing homes or
hospitals are situate. The Social Welfare Department has also the Collec- tor of
the District will take care to ensure that this direction given by us is
followed by the nursing homes and hospitals within their jurisdiction and if
necessary intima- tion in regard to the discovery or find of abandoned or
destitute children, if not sent by any particular nursing homes or hospitals to
the Foster Care Home and the recog- nised placement agencies shall be forwarded
to them by the Social Welfare Department and the Collector of the District. 389

    The Foster Care Home run by the Government as also the recognised placement
agencies in the capital of the State or in the District will also exchange with
one another informa- tion regarding Indian parents who wish to take children in
adoption so that the Foster Care Home as also each recog- nised placement agency
will have a consolidated list of such Indian parents. Each Indian parent who is
registered with the Foster Care Home or a recognised placement agency as a
prospective parent wishing to take a child in adoption and who has been informed
by the recognised placement agency that a child is available for adoption will
be entitled to information about all the children available for adoption in the
group specified by him, according to the consolidated list maintained by the
recognised placement agency. CrL M.P. No. 4455/86

    This Court directed in paragraph 22 of the main judgment dated 6th February
1984 that the notice of the application for guardianship should not be published
in any newspaper and this was reiterated in the Supplementary Judgment dated
27th September, 1985, because otherwise the biological parents would come to
know as to who are the parents taking the child in adoption. The question raised
in the present application is as to whether this direction should be con- fined
only to cases of adoption by foreign parents or it should be extended to cover
cases where Hindu parents seek to take a child in adoption and make an
application to the Court for that purpose. We are of the view that having regard
to the object and purpose for which this direction has been given, it cannot be
confined to the case of adop- tion by foreign parents. It must also cover the
cases where Hindu Parents make an application under section 9 sub-sec- tion (4)
of the Hindu Adoptions and Maintenance Act, 1956. We would, therefore, clarify
the direction given by us and direct that notice of an application under Section
9 sub- section (4) of the Hindu Adoptions and Maintenance Act, 1956 will also
not be published in any newspaper. The present application will stand disposed
of accordingly. Crt M.P. 4064/86

    This application has been filed by the Karnataka State Council for Child
Welfare complaining that the object and purpose for which various directions
were given by this Court in its main Judgment dated 6th February, 1984 and the
supplemental Judgment dated 27th September, 1985 is being defeated by the
practice which has been adopted in some places in the State of Karnataka where
unrecognised agencies are using recognised placement agencies as post offices
for processing cases in respect of children which are in the custody of the
unrecognised agencies and with which the recognised placement agencies have
nothing to do. The result of this practice is that the recognised placement 390

agencies merely act as conduit pipes for making and process- ing applications
for appointment of a foreigner as guardian of a child, even though the child is
not with them at all and they are not even in contact with the foreign
sponsoring agency or the foreigner wishing to take the child in adop- tion. This
practice, if it is prevalent in any part of the State of Karnataka or for that
matter, in the country, must meet with our disapprobation. It is the recognised
placement agency which has to prepare the child study report including the
medical report for submission to the Court alongwith the application for
appointment of the foreigner as guardian of the child and this obviously cannot
be done unless the child is with the recognised placement agency, because the
recog- nised placement agency has to observe the child and gather full
information about it in order to be able to make the report for submission to
the Court. The recognised placement agency must therefore necessarily have the
custody of the child for a period of at least one month before it can prepare d
really genuine and satisfactory child study report alongwith the medical report.
If we permit the recognised placement agency to act merely as post office or
conduit pipe for making and processing an application for guardian- ship on
behalf of an unrecognised agency, it would lead to manifold evils which it has
been our endeavour to eliminate. We would therefore direct that no recognised
placement agency shall make and process an application for appointment of a
foreigner as guardian of a child with a view to its eventual adoption, unless
the child has been in the custody of the recognised placement agency for a
period of at least one month before the making of the application and it shall
not be permitted to act merely as a post office or conduit pipe for the benefit
of an unrecognised agency. Crl. M.P. No. 4065/86

    This application of the Delhi Council for Child Welfare seeks clarification
in respect of certain observations made by this Court in paragraph 6 of the
supplemental judgment dated 27th September 1985. This Court, while providing
that children who are found abandoned should not be assumed to be free for
adoption but they must be produced before the Juvenile Court so that further
inquiries can be made and their parents or guardians can be traced, directed the
Juvenile Courts "that when children are selected for adop- tion, release order
should be passed by them expeditiously and without delay and proper vigilance in
this behalf must be exercised by the High Court". The Delhi Council for Child
Welfare has pointed out in this application made by it for clarification that
the Juvenile Courts are construing this observation literally and mechanically
and are taking the view that release orders in respect of the children produced
before them are to be passed "expeditiously and without delay" only in cases
where it can be said that the children "are selected for adoption" and since no
child can possibly be offered in adoption unless it is

391

declared legally free for adoption by the Juvenile Court, this direction given
by the court for expeditious passing of release orders in cases where "children
are selected for adoption" has become meaningless and futile and the Court
should suitably modify it. This contention raised on behalf of the Delhi Council
for Child Welfare is well-founded, because obviously no child can be offered for
adoption unless the release order is passed in respect of it and it would
therefore be futile to provide that release order shall be passed expeditiously
and without delay in case of children selected for adoption. We would therefore
modify this direction given by us in paragraph 6 of the supplemen- tal Judgment
dated 27th September 1985 by providing that whenever a child is produced before
the Juvenile Court by a recognised placement agency for a release order
declaring that the child is abandoned or destitute so as to be legally free for
adoption, the Juvenile Court must in all such cases complete the inquiry within
one month from the date of the application and proper vigilance should be
exercised by the High Court for the purpose of ensuring that this new direc-
tion given by us is complied with by the Juvenile Courts. We would ask the High
Courts to all for monthly reports from the Juvenile Courts stating as to how
many applications for release orders, that is, for declaring children abandoned
or destitute, are pending before each Juvenile Court, when they were filed and
if they have not been disposed of within one month, what is the reason for the
delay. We are very anxious that in respect of abandoned or destitute children,
there should be no undue delay in offering them for adoption to Indian parents
and, failing Indian parents, to foreign parents, because it is absolutely
essential that such chil- dren should be able to secure love and affection of
adoptive parents at the earliest. Indeed, nothing can take the place of love and
affection of parents and every effort must therefore be made to see that no
procedural delays hold up the process of such children being taken in adoption.
This new direction given by us will also be applicable in cases where, the
Juvenile Court not being in existence, applica- tion for release order is
required to be made to the Social Welfare Department in the capital of the State
or to the Collector of the District in other places. The Social Wel- fare
Department or the Collector, as the case may be, will dispose of such
application within one month of its making. Crl. M.P. No. 6693/85

    There were several points raised in this application filed on behalf of
Church of North India, Holy Cross Social Service Centre, Missionaries of Charity
and Delhi Council for Child Welfare. The first point related to a practice which
is being followed in Delhi in regard to making of an application. for
appointment of a foreigner as guardian of a child with a view to its eventual
adoption. The practice which is followed in Delhi is that the application for
appointment of a foreigner as guardian is required to be signed by the
representative of the recognised placement agency not only as Attorney of the

392

foreigner but also in his personal capacity, so that the application becomes an
application for appointment of the foreigner as well as the representative of
the recognised placement agency as joint guardians of the child. The Court
granting the application also appoints the foreigner as well as the
representative of the recognised placement agency as joint guardians and both
continue as joint guardians until the child is adopted by the foreigner in his
own country. This procedure entails a continued obligation on the part of the
recognised placement agency which is totally unnecessary and in fact, such
procedure is not followed in any other part of the country. It would in our
opinion be sufficient to ensure the eventual adoption of the child and its
proper care and welfare in the meantime, if a bond is taken from the recognised
placement agency to secure performance of the obligations and conditions laid
down by the Court. We would therefore direct that the court entertaining an
application for appointment of a foreigner as guardian of a child should not
require the representative of the recognised placement agency processing the
application to join the application as a co-petitioner nor should the court
insist on appointing such representative as joint guardian of the child
alongwith the foreigner. Where a representative of the recognised placement
agency has already been appointed joint guardian prior to the making of this
Order, he or she will stand discharged on the child being adopted by the foreign
par- ents.

    The second point raised on behalf of the applicants was in regard to the
delay which is at present occurring in the procedure forgiving a child in
adoption to a foreigner in view of the time schedule fixed by the court in the
main judgment dated 6th February, 1984 and the supplemental judgment dated 27th
September 1985. The applicants contended that the entire process laid down by
the court is a long- drawn out process running into a period of about 8 to 9
months and that would defeat the object of expedition in giving a child in
adoption. The applicants pointed out that under our judgments, where there is a
child surrendered by the biological parents, a minimum period of three months is
allowed to the biological parents to reconsider their deci- sion and in case of
an abandoned or destitute child, a period of three months is provided for the
Juvenile Court, Social Welfare Department or the Collector to clear the child
and declare it free for adoption and after the child is declared free for
adoption, a maximum period of two months is provided to find an Indian family
for the child--which period is now curtailed to three to four weeks--and
thereafter it takes another four weeks in mail for sending the child study and
medical reports to the sponsoring agency abroad for being handed over to the
for- eigner for his approval and awaiting the receipt of approval and then a
further period of two months is allowed for the court to process the case and
thereafter on an average it takes another month or more to get the passport and
visa formalities completed. It thus takes about 8 to 9 months after the
abandonment of the child before the child is able to join its adoptive parents.

393

This is, according to the applicants, too long a period and the directions given
by us should be modified with a view to curtailing this period. We agree that
the point raised on behalf of the applicants deserves serious consideration. We
would therefore direct that in cases where a child is relin- quished by its
biological parents or by an unwed mother under a Deed of Relinquishment executed
by the biological parents or the unwed mother it should not be necessary to go
through the Juvenile Court or the Social Welfare Department of the Collector to
obtain a release order declaring the child free for adoption but it would be
enough to produce the Deed of Relinquishment before the court which consider the
application for appointment of a foreigner as guardian of the child. It is only
where a child is found abandoned or is picked up as a destitute that the
procedure of going through the Juvenile Court or the Social Welfare Department
or the Collector would have to be adopted. As soon as aban- doned or destitute
child is found by a social or child welfare agency, a report should be
immediately lodged with the local police station along with a photograph of the
child. The Inspector General of Police or the Commissioner of Police, as the
case may be, should instruct every police station within his jurisdiction to
immediately undertake an inquiry for the purpose of ascertaining and tracing the
parents of the child in respect of which the report is made and such inquiry
must be completed within one month of the report being lodged with the police
station. Meanwhile, the social or child welfare agency which has found the
abandoned or destitute child may make an application to the Juvenile Court or to
the Social Welfare Department or the Collector, as the case may be, for a
release order declaring that the child is legally free for adoption and since
the report the inquiry to be made by the police has under this direction to be
completed within one month, it should be possible for the Juvenile Court or the
Social Welfare Department or the Collector to make a release order declaring the
child legal- ly free for adoption within a period of five weeks from the date of
making the application. If, as a result of the inquiry by the police the
biological parents are traced, the Juvenile Court or the Social Welfare
Department or the Collector, as the case may be, will issue a notice to the
biological parents and give them an opportunity to reconsid- er their decision
after explaining the implications of the child being declared legally free for
adoption. But, this opportunity shall be availed of by the biological parents
within a period of one week and no more. This procedure will considerably reduce
the time taken up in giving an opportu- nity to the biological parents to
reconsider their decision as also in getting the child cleared for adoption by
the Juvenile Court or the Social Welfare Department or the Collector. Whilst the
application for a release order is pending before the Juvenile Court or the
Social Welfare Department or the Collector, the recognised placement agency
which has found the child or to which the child is trans- ferred by the social
or child welfare agency finding the child, may proceed to explore the
possibility of offering the child in adoption and the child may be offered
simulta- neously to Indian parents as well as foreign 394

parents, subject to the clearance of the child for adoption by the Juvenile
Court or the Social Welfare Department or the Collector; The recognised
placement agency need not wait until the release order is made by the Juvenile
Court or the Social Welfare 'Department or the Collector, before offering the
child in adoption, because otherwise even with the reduced time limit which we
have now provided, it would take at least six weeks before the child can be
offered in adop- tion. This time-lag of six weeks can be eliminated if the child
is allowed to be offered in adoption even while the application for release
order is pending and this would also eliminate the delay of about two months
which would occur if the child is not allowed to be offered in adoption to the
foreign parents until after the effort to find an Indian parent for the child
has failed. If this procedure is fol- lowed, it should be possible to find an
Indian parent or, failing that, a foreign parent to take the child in adoption
within a period, of about 6 to 8 weeks from the time when the abandoned or
destitute child is formed by the concerned social or child welfare agency. We
are informed that this procedure is already being followed in Bombay and, in our
view, it should be adopted in all jurisdictions. We then turn to the third point
raised on behalf of the applicants and that relates to transfer of children from
one State to another for the purpose of being given in adoption. We have already
dealt with this subject in paragraph 7 of the supplemental judgment dated 27th
September 1985 and we do not propose to depart from what we have said in that
paragraph of the judgment. But we should like to make it dear that where an
abandoned or destitute child is found by a recognised placement agency or is
brought to it by another social or child welfare agency or individual, it should
be open to such recognised placement agency to transfer the child to its branch
in another State after the completion of the inquiry by the Juvenile Court or
Social Welfare Depart- ment or the Collector, as the case may be. Where such
recog- nised placement agency has an associate social or child welfare agency in
another State, it should be open to the recognised placement agency to transfer
the child to such associate social or child welfare agency in the other State,
provided firstly, that the inquiry is complete by the Juve- nile Court or the
Social Welfare Department or the Collector and a release order is passed, and
secondly, the associate social or child welfare agency has been notified by the
recognised placement agency as its associate to the Govern- ment of the State
where the recognised placement agency is functioning as also to the Government
of the State where the associate social or child welfare agency is operating.
If, for any compelling reason, it becomes necessary for the recognised placement
agency to transfer a child either to its own branch or 'to an associate social
or child welfare agency before completion of the inquiry by the Juvenile COurt
or the Social Welfare Department or the Collector, as the case may be, the
recognised placement agency shall be allowed to do so after obtaining permission
of the Juvenile 395

Court or the Social Welfare Department or the Collector in that behalf.

    We would also direct the Government of India to publish at least once in a
year a list of recognised placement agencies and their associate social or child
welfare agen- cies operating in each State in two leading newspapers having wide
circulation in that State, one in the English language and the other in the
regional language of that State, so that the people may know which are the
recognised placement agencies and their associates which are function- ing in
that State. We would also direct the Government of India to send to the District
Courts in each State through the High Court a list of the recognised placement
agencies functioning within the State together with the names and particulars of
their associate social or child welfare agencies. Such list must be supplied to
the District Judges at least once in a year and whenever any charges or modifi-
cations are made in the list, such changes/or modifications must be intimated to
the District Judges through the High Court.

    One other point raised on behalf of the applicants was that the outer limit
of Rs.4,000 fixed by the Court in the supplemental judgment dated 27th September
1985 for reim- bursement of expenses including legal expenses, administra- tive
expenses, preparation of child study report, prepara- tion of medical and I.Q.
Reports, passport and visa expenses and conveyance expenses, was inadequate,
particularly having regard to the high fees charged by lawyers and increase in
the visa charges for United States and some other countries and that this outer
limit should, therefore, be raised from Rs.4,000 to Rs.6,000. There is force in
this submission made on behalf of the applicants, because there is no doubt that
the fees of lawyer have gone up quite high and the visa expenses have also more
than doubled in recent times. We, therefore, agree that the recognised placement
agency proc- essing the application of a foreigner for being appointed guardian
of a child with a view to its eventual adoption, should be entitled to recover
from the foreigner, cost incurred in preparing and filing the application and
prose- cuting it in court including legal expenses, administrative expenses,
preparation of child study report, preparation of medical and I.Q. reports,
passport and visa expenses and conveyance expenses and that such expenses may be
fixed by the court at a figure not exceeding Rs.6000. The applicants also drew
our attention to the case of foreigners living in India for one or more years
and stressed the difficulty involved in requiring their cases to be sponsored by
a foreign social or child welfare agency and the homestudy report in their cases
to be prepared by such sponsoring foreign agency. This difficulty is a genuine
difficulty. It would be quite impracticable to ask a for- eigner living in India
and wishing to take an Indian child in adoption to obtain a home-study report
from an agency base in his home country. It would

396

be impossible for any foreign social or child welfare agency to sponsor the case
of such foreigner who is living in India and it would equally be impossible for
any such social or child welfare agency to prepare a home,study report in
respect of such foreigner. We would, therefore, direct that in case of a
foreigner who has been living in India for one year or more, the home-study
report and other connected documents may be allowed to be prepared by the
recognised placement agency which is processing the application of such
foreigner for guardianship of a child with a view to its eventual adoption and
that in such a case the court should not insist on sponsoring of such foreigner
by a social or child welfare agency based in the country to which such foreigner
belongs nor should a home-study report in respect of such foreigner be required
to be obtained from any such foreign social or child welfare agency. The home-
study report and other connected documents prepared by the recog- nised
placement agency should be regarded as sufficient. The last point raised on
behalf of the applicants arises out of paragraph 12 of the supplemental judgment
dated 27th September 1985. We pointed out in that paragraph of the supplemental
judgment that ordinarily the court entertaining an application on behalf of a
foreigner for being appointed guardian of a child with a view to its eventual
adoption should not insist on making of deposit by the foreigner as and by way
of security for due performance of the obliga- tions undertaken by him, but in
an appropriate case, the court exceptionally pass an order requiring him to make
such deposit. We observed that the execution of a bond would ordinarily be
sufficient: and we made two alternative sug- gestions which may be implemented
in regard to the execution of such bond. We have considered this question once
again in view of the plea raised on behalf of the applicants and we are of the
view that the court need not insist on security or cash deposit or hank
guarantee and it should be enough if a bond is taken from the recognised
placement agency which is processing the application and such recognised
placement agency may in its turn take a corresponding bond from the sponsoring
social or child welfare agency in the foreign country. Ordinarily, the
sponsoring social or child welfare agency in the foreign country would honour
the bond in case the condition of the bond is broken, because, obviously: if it
fails to do so, no recognised placement agency in India would in future deal
with it and moreover the name of such foreign social or child welfare agency
would be liable to be deleted from the list of foreign social or child welfare
agencies which are recognised as sponsoring agencies for the purpose of
adoption.

    These were the only points raised for our consideration in the applications
made on behalf of various social and child welfare agencies. We have dealt with
these points in some detail and we hope and trust that the

397

clarifications given by us will go a long way towards reduc- ing the delay in
the procedure to be followed in giving a child in adoption to a foreigner and
will also at the same time protect and safeguard the interest of the child by
preventing any possibility of abuse.

M.L.A.

398 

Link Here :
http://www.indiankanoon.org/doc/346574/
 
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