1984 Supreme(SC) 34

SUPREME COURT OF INDIA
P.N. BHAGWATI, R.S. PATHAK AND AMARENDRA NATH SEN, JJ.
Lakshmi Kant Pandey, Petitioner
Versus
Union of India, Respondent.
Writ. Petn. (Crl.) No. 1171 of 1982
Decided on 6-2-1984.

Headnote:(i) Criminal writ petition alleging mal-practices in inter-country adoptions - Petitioner filed criminal writ petition in the Supreme Court complaining of malpractices indulged in by social organizations and voluntary agencies engaged in the work of offering Indian Children in adoption to foreign parents-Court up holds adoption to foreign parents in the absence of suitable Indian adoptive parents-Court also provides for guidelines to regulate such adoptions-Court relies upon Declaration of the Rights of the Child* and the Draft Guidelines of Procedures concerning Inter-country Adoption to formulate guidelines. **

       (ii) Foreigner wishes to adopt destitute Indian child-Requirements to be fulfilled by the foreigner.

       Held in the first place, every application from a foreigner desiring to adopt a child must be sponsored by a social or child welfare agency recognized by the government of the country in which the foreigner is resident. No application by a 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 juvenile court.

       Further held this is essential to reduce profiteering and trafficking in children. Secondly it will provide the Courts with a proper home study report on which to base its decision. Thirdly the intervention of the child welfare agency will provide a body in the country of the foreigner who could be responsible for supervising the progress of the child.

       Also held the social or child welfare agency sponsoring the applications of the foreigner must append a home study report prepared by a professional worker indicating the basis on which the application is being sponsored. Along with the home study a recent photograph of the adoptive family, a marriage certificate of the foreigner, certificate regarding health duly certified by medical doctor, declaration regarding their financial status alongwith supporting documents must be attached. The foreigner must also attach a declaration stating that they are willing to be appointed as guardians of the child and will adopt the child according to the law of their country within 2 years pf the childs arrival in their country.

       Further required the foreigner will send progress report of child alongwith recent photograph to the concerned court and welfare agency for five years.

       (iii) Safeguards required to be fulfilled when biological parents give in adoption.

       Held it should be regarded as an elementary requirement that biological parents should be properly assisted in making a decision about relinquishing a child for adoption. They should understand all the possibilities of adoption including the possibility of adoption by a foreigner.

       Further held once the decision is taken and not reconsidered within such further time as may be allowed to them, it must be regarded as irrevocable and the procedure for giving the child in adoption to a foreigner can then be initiated without any further reference to the biological parents.

       Also held 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 to which the child is surrendered take document of surrender from the biological parents.

       (iv) Application from foreigner for adoption of Indian child.

       Question

       Which, body should process this application in India?

       Held the application should be processed only through a social or child welfare agency licensed or recognized by the Government of India or the Government of the State in which it is operating.

       Further held before taking a decision to recognize any particular social or child welfare agency for the purpose of inter-country adoptions the concerned Government would do well to examine whether the agency has proper staff with professional social work experience to carry out the highly responsible task of ensuring proper placement of a child with a foreign adoptive family. Further an agency which is engaged in the work of child care and welfare should be considered for recognition, since inter-country adoption must be looked upon not as an independent activity but part of the child welfare programme.

       (v) Factors to be taken note of by child welfare Agency before it forwards the case of a particular child for intercountry adoption.

       Held the recognized social or child welfare agency should on receiving an application of a foreigner consider which child would be suitable for giving in adoption to the foreigner and would fit into the environment of his family and community and send the photograph and child study report of such child to the foreigner for obtaining his approval.

       Further held the practice of accepting a general approval of the foreigner to adopt any child should not be allowed as if the foreigner does not like the specific child on arrival the interests of the child would be prejudiced. The agency must therefore insist on the approval of a specific known child and once that approval is obtained the agency should immediately move an application for appointment of the foreigner as guardian of the child.

       (vi) Guardians and Wards Act 1890, Section 11 - Application under Section 11 of the Act asking that a foreigner be appointed the guardian of an Indian Child.

       Question

       What procedure should be followed by the Court?

       Held even though Section It of the Act allows for notice of application to the parents of the child. The court is of the opinion that no notice should be issued to the biological parents of the child.

       However held the court, should, before entertaining an application for guardianship give notice to the Indian Council of Child Welfare or the Indian Council of Social Welfare or to any of its branches for scrutiny of application with a view to ensure that it will be for the benefit of the child to be given in adoption to the foreigner seeking the application for guardianship.