JUDGMENT A.M. Khanwilkar, J.
1. While dealing with the present petition, which is instituted under the provisions of Guardians and Wards Act, 1890, it was noted that generally the procedure for ascertaining the genuineness of biological parents/unwed mother, authenticity of relinquishment, authenticity and child's birth and to prevent F. A. Petition No. 26 of 2005 decided on 31-8-2005. (O.O.C.J., Bombay) malpractices in relinquishment was required to be clearly spelt out. Accordingly, notices were issued to institutions such as Nirmala Niketan and Tata Institute of Social Sciences to evoke their response on related matters. Pursuant to the notices issued to the said institutions, they appeared in the proceedings through their representatives Dr. Mehta for Nirmala Niketan and Mrs. Asha Vajpayee for Tata Institute of Social Science. Besides them, Mr. Hariharan with Ms. Pranjali Ahire addressed the issue on behalf of I.C.S.W. Ms. Madhavi Diwan, Advocate also assisted the Court in formulating the Scheme on the said issues. Mr. Rajesh Kapoor, Advocate for the petitioners and Mrs. Madhubala Kajale, A.G.P. including Ms. Vandana Krishna, the Secretary, of Women and Children Development Department, State of Maharashtra, also contributed for formalising the procedure to be adopted by the concerned for adoption. This Court expresses word of appreciation for the contribution made by all the participants in formalising the directions that I propose to issue.
After considering the suggestions given by the representatives of the institutions as well as the Advocates and the Secretary, Women and Children Development Department, the following procedure, if observed would facilitate eradication of the mal-practices in adoption and relinquishment which are stated to be prevalent as at present. The directions which I propose to pass are founded on the suggestions made by the parties appearing before me as referred to earlier, in the following terms :
(1) The contents of the document of surrender should be explained by the placement agencies to the biological parent/parents in the language known to her/them. The document to be executed in the prescribed form (to be prescribed by the Women and Children Development Department) shall furnish all relevant information. Such forms should be available in languages as far as possible, known to the parent/parents or at least in Marathi, Hindi and English.
Note : If the said document is in language not known to the parent/parents, then the concerned Official, should record that the contents have been read over and explained to the parent/parents.
2. The surrender/relinquishment of child can be done only by the biological/birth parents of a child. In case of unwed mother i.e. where the child is born out of wedlock, the mother is considered the sole legal guardian of the child, hence she can sign the Document of Surrender (hereinafter referred to as DOS). If the mother is married, then the DOS has to be executed by both parents. In the event of death of one of the parents, the death certificate needs to be produced as proof. In the event death certificate is not available or if the mother (who is a married woman) is separated/abandoned by the putative father of the child, then an additional procedure for an abandoned child with the Child Welfare Committee (CWC) needs to be followed. The DOS cannot be executed by any relative/guardian of the child. In such cases, the CWC procedures are to be followed.
3. The thumb impression along with the signature of the surrendering parent/s must be taken on DOS even if they are literate.
4. In case of minors surrendering a child, the signature of the parents/relatives of the minor should be obtained.
5. The primary responsibility to verify the authenticity of the surrender document shall be on the placement agency.
6. In the case of surrender of a child, the birth/biological parent/parents should be counselled and duly informed by the concerned adoption agency of the effect of their consent for adoption. Alternative services such as foster care, sponsorship and family assistance available for the care and maintenance of the child should be informed and offered for prevention of abandonment/surrender of the child.
7. It is very essential to maintain utmost Confidentiality and Sensitivity in the process of surrender considering the emotionally traumatic nature of the process, at the same time ensuring the genuineness of the relinquishment.
8. The surrender document should be executed at the free will of the biological parents/parent with no compulsion, payment or compensation of any kind on the part of the agency.
9. If the biological parents state a preference for the religious upbringing of the child, their wish should be respected as far as possible. However, ultimately, the paramount interest of the child alone should be the sole guiding factor before the child is placed in adoption.
10. The parent/parents should be informed by the agency of his/her/their right to reclaim the child within 60 days from the date of surrender. He/she/they should be made aware that, after the period of 60 days, the surrender document will become irrevocable and the child will be considered legally free for adoption and the recognized adoption placement agency will be free to place the child in adoption or guardianship, through In-country or Inter-country Adoption or any other suitable rehabilitation.
11. The surrender document was earlier being executed on a (Rs. 100/-) stamp paper in the presence of two responsible witnesses. Now since Revenue and Forest Department, Government of Maharashtra vide their order dated 1st July, 2004 has remitted the stamp duty chargeable on the instruments of affidavit or declaration made in any Court, therefore, the document of surrender should be notarized or executed before a Magistrate.
12. The document of surrender is being executed in the presence of a representative of a scrutiny agency (ICSW) and/or representative of the State Government. While witnessing the document of surrender, the ICSW representative or Government official should ensure that the document of surrender has been explained to the biological parent/parents in the language known to him/her/them. They must interview the birth mother, check the medical records and satisfy themselves that she is indeed the biological mother of the child, about the authenticity of facts and submit their comments on the DOS based upon the interview and available material evidence. In some cases if they have any queries, doubts or apprehensions about the validity of the situation of the document of surrender, they must request for an additional process of referring the case to the Child Welfare Committee, appointed under the Juvenile Justice Act, 2000 for further inquiry and declaring the Child legally free for adoption.
13. Whenever the biological parent/parents have some proof of identity (Photograph, ration card etc.) and are willing to disclose it, the agencies must keep it on the record.
14. Details about the background of the surrendering parent/parents, unwed biological mother; circumstances leading to pregnancy, particulars and whereabouts of the putative father if any, should be recorded in a separate case history maintained by the agency and made available to the scrutiny agency and the Court when required.
15. In cases where the unwed mothers are not able to produce sufficient proof of identity the following procedure should be followed in order for the DOS to be valid :-
(A) If the child is born in a hospital, the hospital discharge card or the letter from hospital authority should suffice as a proof of genuineness of motherhood.
(B) If the child is not born in any hospital, the accompanying witness should submit an affidavit stating his/her identity and authenticating the identity of the mother in the prescribed format.
"AFFIDA VIT OF WITNESS I,_____________________(full name), an adult Indian citizen, residing at_____________________ (full address) do hereby state on solemn affirmation as follows :
1. I say that I have known Ms./Mrs./Mr./ Mr. and Mrs. _______________ (name of biological parents) residents of ___________________ (full address) for the last________________ months/years.
2. I say that from my own personal knowledge, I hereby affirm that Ms/Mrs/Mr/Mr, and Mrs. _________________ (name of biological parents) has/had delivered an child/children on __________________ (date) at________(place/detailed address).
OR
2. I say that I have been informed by________________(full name and address) that Ms/Mrs/Mr/Mr, and Mrs.___________________(name of biological parents) has/have given birth to male/female child/children on ____________(date) at____________(place).
3. I say that I have accompanied Ms./Mrs./Mr./ Mr. and Mrs. ____________(name of biological parents) to the________________ (name of agency) to witness the surrender or the said child/children by the said_______________(name of biological parents) into the care and custody of_______________(name of agency). I further confirm that I have witnessed the signature/thumb impression of Ms./Mrs./Mr./Mr. and Mrs. ____________________ (name of biological parents) after she/he/they have/has understood the contents in the language known to her/him/them and implications of the document of surrender as explained to her/him/them by the officer of the_________________ (name of agency).
4.1 lastly say that whatever is stated hereinabove is true to the best of my knowledge and belief and if the said agency requires me to be present on any later date, to confirm the said abandonment before any competent Court of law, I am willing to do so".
This affidavit should be produced with the DOS. The witness should be willing to remain present in the Court, if required.
Before executing the DOS, the placement agency should verify that the above procedure has been followed. If the unwed mother has neither a proof of identity nor a witness, then in addition to the DOS witnessed by scrutiny agency/Government agency, she should immediately be sent to CWC for further inquiry.
16. In exceptional cases, if it is needed to trace the unwed biological mother, random checks may be conducted by an appropriate authority appointed by State Government within a reasonable period. This authority may include eminent social workers, faculty from social work colleges and NGOs. Permission of Secretary, Department of Women and Child Development must be taken for conducting such random checks for a particular case. These checks should be conducted only in case of doubt and with utmost sensitivity.
17. FOLLOW UP REPORTS - In case of Inter-country adoption, CARA should ensure the authenticity and regularity of progress reports of a child given in adoption as per the format prescribed by CARA. The reports should include the following :
1. Child identification Data.
2. Adjustment into the family (Psycho-Social-Emotional).
3. Medical Reports/Immunizations/General Health/Milestones of Development.
4. Adjustment at Preschool/Nursery/K.G./Primary School.
5. Over all impressions/Recommendations of the social workers regarding the adoption situation.
18. The report should be sent by Enlisted Foreign Adoption Agency (EFAA) and should mention the qualifications of the person preparing the report.
19. Copies of the latest follow up reports of a child should also be made available/be part of the record at the time the adoptive parents apply for guardianship of second child. The report should be scrutinized promptly and regularly by CARA. CARA shall be responsible for monitoring and follow up of these reports.
20. The State Government shall take immediate steps to widely circulate the above guide-lines especially to all the recognised adoption placement agencies throughout the State and ensure enforcement thereof in its letter and spirit. The State Government shall also publish and circulate the prescribed form of document of surrender referred to in Clause (1) above forthwith.