Bombay High Court
Children Of The World India Trust vs Unknown on 29 October, 2010
Bench: R. S. Dalvi
1 FAP-254/2010
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
AND
IN ITS GENERAL AND INHERENT JURISDICTION
JUDGE'S ORDER NO. OF 2010
IN
FOREIGN ADOPTION PETITION NO.254 OF 2010
Children of the World India Trust ...Petitioner
through Mr. V.M. Salve, Social Worker
And
1. Torlief Rueness, Norwegian National,
residing at Valbergheia, Terrasse 4,
4900 Tvedestrand, Norway.
2. Catrine Lie Rueness, Norwegian National,
wife of Mr. Torleif Rueness. ...Proposed
Adopters
Mr. Rakesh Kapoor, i/b. Rakesh Kapoor & Co. for Petitioner
Mr. O. Hariharan, Scrutiny Officer for ICWS.
Mr. Vinod Joshi for CARA
CORAM: SMT. ROSHAN DALVI, J.
DATED : 29TH OCTOBER, 2010
ORAL ORDER:
1. The Petitioner has applied for adoption of an Indian female
child Rekha aged 4½ years by the proposed adopters who are
Norwegian Nationals. The requisite procedure prior to
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obtaining the permission of the Court has been complied. The
representation of Central Adoption Resource Authority
(CARA) has been filed.
2. The income certificate of the adopted parents show the annual
income of the parents to be NOK 537309 and NOK 203624.
The home study report shows the family in easy
circumstances. Their upbringing is shown to be in good
environment, good culture and caring. They are fit and proper
persons to be appointed parents of the minor child.
3. In view of the fact that the minor child would be required to
be sent out of the jurisdiction of this Court and out of this
Country pursuant to the adoption, the welfare of the child is
required to be seen by the Court as its prime concern. Of
course, given the facts of the case the welfare and interest of
the child are seen to be in good hands.
4. However experience has shown that in certain circumstances
need for a security for the child has arisen. It is seen that in
many cases the follow-up reports which are required to be sent
by the adoptive parents in foreign countries are delayed or not
sent. These reports would be positive evidence of the
continued welfare of the child after the child's adoption and at
least until a reasonable period when the child would be taken
to be secure in a foreign culture and environment. It is in
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view of this requirement that the Supreme Court in the case of
Lakshmi Kant Pandey Vs. Union of India & Ors., in Writ
Petition No.1171/1982 made various provisions including the
provision for an order of deposit or bond or otherwise. The
relevant part of the Supreme Court judgment reads thus:
" The court will also introduce a condition in the order
that the foreigner who is appointed guardian shall
make proper provision by way of deposit or bond or
otherwise to enable the child to be repatriated to India
should it become necessary for any reason. We may
point out that such a provision is to be found in clause
24 of the Adoption of Children Bill No.208 of 1980 and
in fact the practice of taking a bond from the foreigner
who is appointed guardian of the child is being followed
by the courts in Delhi...."
5. This Court also insisted upon bonds to be executed by the
adoptive parents. Various incidents have been brought to the
notice of the Court showing that in certain cases the bonds
have been breached. This causes needless avoidable
administrative and clerical work in calling for bonds or
enforcing them. It is, therefore, that this Court has passed
directions for deposit of an amount equivalent to the amount
required upon enforcement of the bond to be deposited by the
adoptive parents. If the undertaking given by the adoptive
parents are complied, the amount deposited and invested can
be resent/returned to them with all accrued interest thereon.
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6. It is argued on behalf of the CARA that several Norwegian
parents are reluctant to deposit the amount in lieu of their
bonds and that it causes upon them an additional burden after
having undertaken the procedure of adoption and having been
granted the right to adopt the child. It is also argued that
there would be bureaucratic difficulties when the deposited
amount is required to be withdrawn by the proposed adopters.
7. The submissions made on behalf of CARA shows reliance
placed upon Lakshmi Kant Pandey's judgment (supra) and
the Hague Convention being the Convention for Protection of
Children and Co-operation in respect of Inter-country
Adoption. The submission itself shows that the adoptions take
place in the best interest of the child and respect for his or her
fundamental rights is recognized by International Law. It
accepts the responsibility of the Foreign Agencies enlisted by
CARA to send periodic progress reports and follow-up reports.
It also mentions that post adoption follow-up is monitored by
the Recognised Indian Placement Agency (RIPA) and CARA. It
also mentions the likely event of disruption of a foreigner's
family before the adoption is effected and the likely event of a
child not being properly looked after, mistreated or abused in
the adoptive family. It makes a reference to a suitable
alternative placement for the child with concurrence of RIPA.
It also makes a reference to certain cases of children being
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referred to be repatriated to India.
8. Advocate on behalf of CARA has drawn my attention to the
letter of the Deputy Director General, Norway on behalf of the
Inter Country Adoption Authorities of the Nordic Countries
dated 15th October 2010 taking exception to the new
requirements of this Court in respect of the deposit of Rs.
60,000/- and the investments for the child which are directed
to be made. It is contended that there is no basis for such
directions in the 1993 Hague Convention. The letter expresses
doubt about the bureaucracy to seek the refund of money after
2 or 5 years of the adoption and calls for explanation of the
legal basis of the Court's demands. It expresses concern about
the special needs' children. It however concedes the measures
being taken for cases where the obligations to send follow-up
reports are not fulfilled.
9. It is precisely with these exigencies in view and with the hope
of all concerned parties as well as the Court that those events,
which indeed do not occur often, would require to be properly
headed if and when they do occur, that a deposit by the
foreign adoptive parents is also contemplated and provided
for, in the judgment in the case of Lakshmi Kant Pandey
(supra).
10.It was argued before the Apex Court that the deposit by way
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of security should not be insisted upon by the Court for
enabling the child to be repatriated to India, should it become
necessary for any reason, and instead a bond executed by the
foreigner should be sufficient. It was considered that the
security may cause hardship to the foreigner at the time of
return of the amount for repatriation of the amount to his
country. Nevertheless the Apex Court observed:
"the Court while making an order for appointment of a
foreigner as guardian, should not insist on deposit
being made by way of security for enabling the child to
be repatriated to India, should it become necessary for
any reason, instead a bond to be executed by the
foreigner should be sufficient. Now it is true that if
security by way of deposit is insisted upon the court, it
may cause a certain amount of hardship to the
foreigner because his monies would remain locked up in
court and though after the adoption is effected by him,
he would be entitled to return of the amount deposited,
it would be difficult for him to get that amount
repatriated to him in the foreign country. But even we
do not think that we should issue any direction that
deposit should not be insisted upon in any case. It
should be a matter to be decided by the Court in the
exercise of its judicial discretion."
11.The execution of the bond was observed to be ordinarily
sufficient. However the defect in its enforcement was
envisaged. Who would be the most appropriate party to
execute that bond and who would be liable upon such bond
was also considered by the Apex Court. The Apex Court inter
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alia considered the bond to be executed by the adoptive
parents, the representative of the foreign child or the Social
Welfare Agency in India, or the Child Welfare Agency which
processes the application in India.
12.Whereas experience has shown difficulties in execution of the
bond, internal banking practice has shown a more convenient
and expedient way of repatriation of monies from India to
foreign countries by what is presently known as Electronics
Clearing Service (ECS), Electronics Telegraphic Clearing
(ETC), Telegraphic Transfer or Real Time Gross Settlement
(RTGS). The defect envisaged before the Apex Court is,
therefore, considerably reduced by the International Banking
procedures which have become far from streamlined since the
judgment was delivered.
13.In view of the purport of that order and further in view of the
experience of this Court coupled with the technological
advances in transmission of amounts as well as rules and
regulations of the Reserve Bank of India for several purposes,
the order and directions of the Court for deposit of Rs.
60,000/- in lieu of giving the bond does not come up for
questioning. It would be the most expedient and convenient
way of enforcing the obligations under the law.
14.It may be mentioned that in view of the expression of doubt
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about the withdrawal of the amount and its repatriation in
foreign countries, the Court has issued directions to the office
of the Prothonotary and Senior Master of this Court not to
insist upon tardy procedures for such repatriation, but to
follow the system of telegraphic transfers once the details of
the bank accounts of the proposed adopters or the agency
which has deposited the amounts are furnished to the office of
the Prothonotary and Senior Master of this Court. The
amount with all accrued interest thereon, less the Bank
charges for the transfer shall be directly transmitted only to
the party that had deposited the amount.
15.This Court has further directed the proposed adopters to
invest a reasonable amount for the security of the child until
the child attains the age of majority. In most cases a sum
equivalent to Rs.2 lakhs is deemed adequate and appropriate
for such security. In most cases the adoptive parents have
whole heartedly agreed with the directions of the Court and
invested those amounts in their adopted child's name. Of
course this amount has also been waived in certain cases
depending upon the facts and circumstances of those cases, if
the adoptive parents are not in easy circumstances or
overburdened with extra responsibilities specially for a special
needs' child. The security amount is, directed to be invested
upon exercising judicial discretion.
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16.CARA has sought to question the discretion and authority of
the Court in requiring such security for the children. It
contends that the requirement of such deposit may adversely
effect the adoption programme. The submissions made on
behalf of CARA itself shows the obligations and responsibilities
of the Agencies as well as the parents. The Court merely seeks
to safeguard due execution of those obligations. It is also seen
that it is the experience of CARA itself that in some, though
rare, cases the security of the child may be compromised in
cases of disruptions of the family, abuse of the child etc., The
Court cannot turn a Nelson's eye to such instances which are
universal. For alternative placement of the child in those
circumstances the foreign agencies as also the Indian Agencies
abroad may require certain funds for safeguarding and
protecting the interest of the child and looking after the
management, education and welfare of the child until an
alternative placement is found for the child. In any event a
modest amount is directed to be invested in the name of the
child towards the interest of and benefit for the child when the
child attains majority. It grants a sense of independence upon
the child. It enables the child to accept life and take on any
education or profession of his/her choice. Such investment
would also relieve the burden of the parents at the time the
child needs to plough back upon the investment, who would
find the investment having increased manifold through the
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years during the minority of the child. It is upon these sound
financial principles that even biological parents invest on
behalf of their children during their minority in the number of
Government Investment Programmes for the security of the
children.
17.It may be mentioned that in the case of Indian adoptions also
Indian parents are directed to invest a like amount in the
name of their children in any Government or Semi-
Government Financial Institution for the security of the child.
18.There is, therefore, no reason that the Court in its discretion
cannot direct the adoption to take effect upon investment of
such reasonable and modest amount in the name of the child.
19.Under these circumstances the request of CARA not to insist
upon the deposit of Rs.60,000/- in lieu of the bond or the
financial investment of an equivalent of Rs.2 lakhs in the name
of the child in the foreign country is rejected.
20.Order is passed in terms of the Judges Order in the above
Petition.
(SMT. ROSHAN DALVI, J.)
