Promila Ann Massey vs Central Adoption Resource ...
2013 Latest Caselaw 351 Del

*                     THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 24.01.2013

+                     WP(C) 2701/2012


DR. ABHA AGRAWAL                                    ......PETITIONER


                                        Vs

CENTRAL ADOPTION RESOURCE AUTHORITY
& ANR.                          ....RESPONDENTS

+                     WP(C) 3279/2012


PROMILA ANN MASSEY                                  ......PETITIONER


                                        Vs

CENTRAL ADOPTION RESORUCE AUTHORITY
& ORS.                          ....RESPONDENTS

ADVOCATES WHO APPEARED IN THIS CASE:

For the Petitioner: Mr. Rakesh Tikku, Sr. Advocate with Mr. Lalit Trakru and Mr. Karan Thukral, Advocates For the Respondents: Ms.Rita Kaul and Mr. Kapil Kumar, Advocates

CORAM :-

HON'BLE MR JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J

1. These two matters raise a common question which is: Whether adoptions made directly by the biological parents of a child to another person, without the intervention of the Central Adoption Resource Authority (in short CARA), are valid in the eyes of law?

2. The issue has arisen in the background of the following brief facts, concerning the two writ petitioners before me:

WP(C) 2701/2012 2.1 The petitioner, in this case, Dr. Abha Aggarwal, appears to have approached a couple by the name of Sh. Mohan and Smt. Anita residing in a village situate near Kosi Kalan, state of U.P., in July 2009, to give their child, which was being carried by Smt. Anita, in adoption to her. 2.2 It appears that the said couple Sh. Mohan and Smt. Anita after having made enquiries with regard to the character, financial position, family background and the keenness of the petitioner in adopting their child, agreed to give their child, in adoption, to the petitioner once the child was born. 2.3 Upon the child being born, an adoption ceremony was apparently held, in the presence of relatives and friends of both families. In addition, an adoption deed dated 05.08.2011, was also executed, between Sh. Mohan and Smt. Anita i.e., the biological parents and the adoptive parents i.e., the petitioner herein. It is the case of the petitioner that the said deed of adoption was duly registered in the office of the Sub Registrar, situate in the state of U.P.

2.4 The petitioner claims that, thereafter on, 08.08.2011 she made an application accompanied by all relevant documents to respondent no.2, for issuance of a passport in favour of the child. It is at this stage she was informed that, a passport could be issued in favour of the child only upon a „No Objection Certificate‟ (in short NOC) being obtained from CARA. The petitioner claims that she made the requisite application on 09.08.2011, with CARA, for issuance of a NOC. The application was followed up with visit to the office of the CARA on 11.08.2011, when the petitioner was apparently told orally though, that her application for issuance of a

NOC could not be accepted. The reasons though, for refusal, were not articulated.

2.5 The petitioner claims that on 12.08.2011 a visit for the said purpose was also made to the office of respondent no.3 informing him that her application for issuance of a NOC was not accepted by CARA. The above was followed by a visit, once again, by the petitioner to the office of the CARA, on 13.08.2011.

2.6 The petitioner claims that even her brother made several visits to the office of CARA for the said purpose between August and September, 2011. As a result of the same, the petitioner, who is otherwise a resident of New York in U.S.A, decided to shift base to India.

2.7 It is the petitioner‟s case that a further follow up through emails and over the telephone with CARA has not yielded any result. 2.8 It is on account of the aforesaid circumstances that the petitioner approached this court in May, 2012 when notice in the petition was issued. 2.9 Pursuant to the same, pleadings in the matter stand completed. I may only note that during the course of arguments before me, I was informed by the learned counsel for the petitioner that an organization known as Lifelink International Adoption, which is an accredited agency, on the record of the US Department of State, is carrying out a home study in accordance with the provisions of the Convention On Protection Of Children And Co-operation in respect of Inter-country Adoption (in short the Hague convention of 1993), and other applicable rules and regulations, which are applicable for inter- country adoption in The United States of America (in short USA). WP(C) 3279/2012

3. The petitioner, who claims to be married to one Stephen Massey, appears to have taken a decision, in January, 2012, to adopt a child from India.

3.1 Accordingly, in February, 2012, she met one Smt. Rupinder Kaur wife of late Sh. Balwinder Singh, to seek adoption of her girl child Mehakdeep Kaur, born from wedlock with late Sh. Balwinder Singh. It appears that, Smt. Rupinder Kaur had remarried after the death of Balwinder Singh and gave birth to two children from her second marriage. The petitioner says that, it is because of this reason, Smt. Rupinder Kaur had agreed to give the girl child born from her first marriage, in adoption, to the petitioner as, the child was being brought up by other family members of Smt. Rupinder Kaur, to ensure marital harmony.

3.2 It is claimed that after Rupinder Kaur had satisfied herself with regard to the character, financial position, family background as also the keenness of the petitioner to adopt the child, that Smt. Rupinder Kaur agreed to give the child in adoption to the petitioner.

3.3 It is claimed that, a ceremony for the said purpose was held on 28.02.2012, in the presence of relatives.

3.4 The adoption ceremony was followed by execution of a formal deed of adoption on 06.03.2012, whereby the natural biological mother of Mehakdeep Kaur, Smt. Rupinder Kaur, gave her child in adoption to the petitioner and her husband, Mr. Stephen Massey.

3.5 As in the earlier case when, in March, 2012 the petitioner applied for issuance of a passport to respondent no.2 in favour of the girl child, the application was returned on the ground that it was not supported with requisite documents. When, enquiries were made, it was found that the petitioner would require a NOC from CARA, for the application to be processed. 3.6 The petitioner claims that on 12.03.2012, she approached CARA, for issuance of a NOC; a visit which did not yield any result. 3.7 Consequently, on 20.03.2012, the petitioner once again approached respondent no.2 informing the said authority about the refusal by CARA, to

issue her a NOC. It is averred that despite repeated requests, respondent no.2 has not done the needful in the matter.

3.8 The petitioner claims that thereafter, in the month of March and April, 2012, follow up visits were made to the office of the CARA which, once again, did not yield the necessary result.

3.9 Consequently, the petitioner has approached this court in May, 2012, when notice in the petition was issued.

3.10 Upon issuance of the notice, pleadings in the matter stand completed.

4. As a point of fact, it is noted that, it is the averment of the petitioner that in the interregnum on 22.03.2012, she has made an application for change of name of the adopted child to the concerned office of the Govt. of India and duly published a notice in that regard in a vernacular newspaper. SUBMISSIONS

5. The counsels for the petitioner in both matters i.e., Sh. Rakesh Tiku and Sh. Thukral argued that CARA has no role to play in the facts and circumstances of the case as the children in issue were given in adoption to their respective adoptive parents by their biological parents. It was the argument of both counsels that the intercession of CARA was mandated only in cases of those children who are orphaned or abandoned by their biological parents. The CARA, which was constituted pursuant to the judgment of the Supreme Court in the case of Lakshmi Kant Pandey Vs. Union of India (1984) 2 SCC 244, had a role to pay only in cases where the adopted children are either orphans or abandoned by their biological parents. For this purpose, reliance was placed on the observations of the Supreme Court in paragraph 11 of the aforementioned judgment.

5.1 In order to emphasize the said submission, observations of the Supreme Court in Anokha (Smt.) Vs. State of Rajasthan and Ors, (2004) 1 SCC 382 were also relied upon.

5.2 It was further submitted by the learned counsels for the petitioners that a single Judge of this court in a judgment dated 13.02.2012 passed in WP(C) 8755/2011 titled Dr. Jaswinder Singh Bains and Antr. Vs. Central Adoption Resource Authority, had taken a similar view.

6. On behalf of CARA, a stand is taken that both cases relate to direct adoption, without the intercession of any court or authority. The interest of the children being paramount, a specialized adoption agency would need to intervene in the matter. It is the stand of CARA that the legislative mandate for the same is found in the amendment made in 2006 to the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short the JJ Act) by introducing Sub-Section (2) in Section 41 of the JJ Act. It is thus, the stand of the CARA, that the rehabilitative measures for children in need of care and protection through means of adoption applies, not only to orphaned and abandoned children, but also to, surrendered children. In other words, according to the stand taken by CARA, the term „surrendered children‟ would include „children which are given in adoption by their biological parents directly to the adoptive parents‟.

6.1 Therefore, in consonance with the stand taken by CARA, it is contended that the procedure prescribed under Sub-Section (3) of Section 41 of the JJ Act will have to be followed. In other words, children can be given in adoption by a court only after satisfying itself with regard to investigations having been carried out in accordance with various guidelines issued from time to time in that behalf by the State Government or CARA itself. 6.2 It is also the contention of CARA that under Sub-Section (4) of Section 41 of the JJ Act, the State Government is required to set up a specialized adoption agency and a child welfare committee at the District level to ensure that necessary safeguards are taken during pre-adoption, adoption and post- adoption process. In terms of Sub-Section (4) of Section 41, it is the

specialized adoption agency which will place the orphan, abandoned or surrendered child for adoption in accordance with guidelines notified under Section 41 (3) of the JJ Act.

6.3 It is also the stand of CARA that the Govt. of India (GOI) has on 27.06.2011 notified Guidelines Governing Adoption of Children -2011 (Guidelines of 2011) in furtherance of the provisions contained in Section 41(3) of the JJ Act and the Hague convention of 1993, to which India became a signatory in 2003.

6.4 In sum and substance the argument made on behalf of CARA was that provisions of 2011 Guidelines could not be side stepped so to speak, even in cases where biological parents, as in this case, were directly giving their child in adoption to the adoptive parents. In this regard, reference is made to the provisions of Article 4, 5, 15 and 17 of the Hague Convention as also clause 16 and Chapter III of the 2011 Guidelines, which adverts to the adoption process.

7. Having heard the learned counsels for the parties, it is quite clear that there are observations made in paragraph 11 of the judgment of the Supreme Court in Lakshmi Kant Pandey's case to the effect that the court in that case did not concern itself with cases where children were given in adoption, who were living with their biological parents; an aspect which was noticed in Anokha case. Pertinently, both judgments were passed prior to the issuance of the 2011 Guidelines. As the facts would indicate in the present case, the petitioners have taken the route of direct adoption, which in a sense excludes the checks and balances provided in the best interests of the child at the pre- adoption, adoption and post-adoption stages. While, one may concede that the biological parents would have a great say in the decision to give a child in adoption, what cannot be overlooked is that, the aspects which have been provided for in the 2011 Guidelines are wholesome and perhaps need to be

applied as contended by CARA even in cases of direct adoption. For example, it is in the best interest of the adoptive parents that the child should be declared free for adoption by a designated agency. If that is not done, then at some stage, there could emerge a situation involving the claim over the adopted child, which apart from anything else could impair the psychological development of the child.

7.1 It would also, perhaps be, in the interest of the child that a home study report is prepared by a duly recognized agency of the country in which the adoptive parents reside so that an informed decision can be taken with regard to the fitness and suitability of the foreign parent. It is not unknown that children are often adopted and taken away from their country of origin for the purposes of trafficking, gaming, clinical trials and other pernicious activities. Therefore, the checks and balances which have been provided in the 2011 Guidelines perhaps are required to be adhered to even in cases of direct adoption. The main purpose being that the process of adoption should lead to moral, material and spiritual security of the child.

8. In the present case, what to talk of intercession by the court, there is no involvement of any recognized specialized agency or a child welfare committee. There has been no occasion for the biological parents to have received any counseling; so that one could come to a conclusion that it was in fact an informed decision. There has been no ascertainment by any independent agency: as to whether there was any extraneous pressure, coercion, or financial consideration which had changed hands.

9. Undoubtedly, in the case of Dr. Jaswinder Singh Bains, a single Judge of this court relying upon the observations made in paragraph 8 at page 387 in Anokha's case came to the conclusion that no NOC was required to be issued by CARA. On perusal of the said judgment it is quite evident that the 2011 Guidelines and the provisions of the JJ Act were not brought to the notice of

the court. It may be noticed that though in Dr. Jaswinder Singh Bains case, an order had been passed by the Civil Judge, Sr. Division, Patiala, under Section 7 of the Guardians and Wards Act, 1890, approving the adoption. Though this is a fact mentioned in the said judgment, the conclusion in the judgment of the learned Single Judge is based on the following observations in Anokha's case which for the sake of convenience are extracted hereinbelow :-

"..8. In our view, the High Court and the District Judge erred in not considering the material produced by respondents No. 2 and 3 in support of their application and in rejecting the application under the Guardians and Wards Act, 1890 solely on the basis of the guidelines. The background in which the guidelines were issued was a number of decisions of this Court, the first of which is Lakshmi Kant Pandey v. Union of India. This is borne out from the stated object of the guidelines as set out in paragraph 1.1. thereof which

"is to provide a sound basis for adoption within the frame work of the norms and principles laid down by the Supreme Court of India in the series of judgments delivered in L.K. Pandey v. Union of India and Ors. between 1984 and 1991".

The original decision of the Court was taken on the basis of a letter written by one Laxmi Kant Pandey complaining of mal-practices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The judgment has considered the problem at great length after affidavits were filed not only by the Indian Council of Social Welfare but also by Foreign Organisations and Indian Organisations which were engaged in offering and placing Indian children for adoption by foreign parents. The decision has referred to three classes of children: (i) children who are orphaned and destitute or whose biological parents cannot be traced; (ii) children whose biological parents are traceable but have relinquished or surrendered them for adoption; and (iii) children living with their biological parents. The third category has been expressly excluded from consideration as far as the decision was concerned "for in

such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents". The reason is obvious. Normally, no parent with whom the child is living would agree to give a child in adoption unless he or she was satisfied that it would be in the best interest of the child. That is the greatest safeguard."

9.1 Regard may also be had to the observations made in paragraph 10, 12, 13 and 15 of the judgment in Anokha's case for the sake of completeness.

"..10. The aforesaid observations only pertain to children who have been or are sought to be relinquished or surrendered for adoption in general to a placement agency or other institution where there is no contact between them and the adoptive parents at all and not to cases where the child is living with his/her parent/parents and is agreed to be given in adoption to a particular couple who happen to be foreigners.

12. The guidelines have formulated various directives as given by this Court in the several decisions and do not relate to regulation of the adoption procedure to be followed in respect of third category of children, namely, children with their biological parents who are sought to be given in adoption to a known couple as is the situation in this case. It is only where there is the impersonalized attention of a placement authority that there is a need to closely monitor the process including obtaining of a no objection certificate from the Central Adoption Resource Agency (CARA), Ministry of Welfare, the sponsorship of the adoption by a recognised national agency and the scrutiny of the inter-country adoption by a recognised Voluntary Coordinating Agency (VCA). Indeed CARA has been set up under the guidelines for the purpose of eliminating the malpractice indulged in by some unscrupulous placement agencies particularly the trafficking in children.

13. Under the guidelines, the Home Study Report to be enclosed with an application for adoption must be routed through a foreign and enlisted agency which must be an enlisted agency in India with a copy to CARA, The Home Study Report is required to contain the following particulars:

(a) Social Status and family background;

(b) Description of Home;

(c) Standard of living as it appears in the Home;

(d) Current relationship between husband and wife;

(e) Current relationship between the parents (and children (if any children);

(f) Development of already adopted children (if any);

(g) Current relationship between the couple and the members of each other's family;

(h) Employment status of the couple;

(i) Health details such as clinical test, heart condition, past illness etc. (medical certificate etc.);

(j) Economic status of the couple;

(k) Accommodation for the child;

(l) Schooling facilities;

(m) Amenities in the Home;

(n) Reasons for wanting to adopt an Indian child;

(o) Attitude of grand-parents and relatives towards Adoption;

(p) Anticipated plans for the adoptive child;

(q) Legal status of the prospective adopting parents.

15. None of these provisions in the several decisions of this Court impinge upon the rights and choice of an individual to give his or her child in adoption to named persons, who may be of foreign origin. The Court in such cases has to deal with the application under Section 7 of the Guardians and Wards Act, 1890 and dispose of the same after being satisfied that the child is being given in adoption voluntarily after being aware of the Implication of adoption viz. that the child would legally belong to the adoptive parents family, uninsured by any extraneous reasons such as the

receipt of money etc; that the adoptive parents have produced evidence in support of their suitability and finally that the arrangement would be in the best interest of the child..."

10. In my view, apart from anything else, the court may have to examine whether the State in its capacity parens patriae would need to step-in, to safeguard the rights of the child, who is given in adoption by his biological parents; under Article 21 of the Constitution of India. This is a role which the State adopts to safeguard the interest of the persons who are under legal disability. This is, more particularly true, in case of juveniles. It is a concept by which the State protects its quasi-sovereign interest, which inter alia relates to health, comfort and welfare of its citizens. (See Black‟s Law Dictionary 6th Edition at page 1114) 10.1 Therefore, in my view, even in the absence of any guidelines the court is not disempowered to direct the State to carry out an investigation in the interest of the child, both in the country of his/her origin as well as in foreign country through a recognized agency.

11. Having considered the arguments of learned counsels for the parties, I am of the view that the issue raised in the two writ petitions needs examination by a larger Bench as regards the following aspects :-

(i). Whether the term „surrendered child‟ will include those children who are directly taken in adoption from their biological parents without the intercession of any specialized agency or child welfare committee?

(ii) Whether, in case of direct adoption, the 2011 Guidelines and the provisions of Section 41(3) and (4) of the JJ Act are applicable?

(iii). If the answer to issue no.(i) and (ii) is in the affirmative, to what extent the 2011 Guidelines would apply to direct adoptions?

(iv) Can the court direct State to discharge its duty in its capacity as parens patriae to carry out an investigation so as to safeguard the interest

and/or rights of the child conferred on him under Article 21 of the Constitution of India?

(v). Could respondent nos.2 and 3 insist on issuance of a NOC by CARA, before processing the application of the petitioner(s) for issuing a passport to the adopted child?

12. Before I conclude, I may only point out that Mr Tiku, learned senior counsel appearing for the petitioner in WP(C) 2701/2012, i.e., Dr. Abha Agrawal, had indicated, a fact which is noticed hereinabove, that she had commenced the process of securing a home study report through a recognized agency. The submission thus made was that the process should be allowed to continue. In my view, as long as the agency, which is conducting a home study qua the said petitioner, is recognized by CARA, this court can have no objection to the said process being carried out. The petitioner in this behalf would be well advised to keep CARA in the picture. If so advised, the petitioner can approach CARA as well to carry on the investigation at their end in India. If approached, CARA will do the needful at its end.

13. The matter be put up before the Hon‟ble Chief Justice for appropriate orders in the captioned matters.

RAJIV SHAKDHER, J JANUARY 24, 2013 yg