1. Adoption of an infant by foreign nationals — Appointment of guardians under Section 7, Guardians and Wards Act, 1890 — Challenge to the appointment order. (Para 1 )
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1995 Supreme(SC) 655
SUPREME COURT OF INDIA
(Gujarat High Court)
B.L. Hansaria, R.M. Sahai
SUMANLAL CHHOTALAL KAMDAR AND OTHERS APPELLANTS;
VERSUS
ASHA TRILOKBHAI SHAH (MISS) AND OTHERS RESPONDENT.
Civil Appeals Nos. 5403-04 of 1995
decided on May 9, 1995.
Advocates:
C.H.PATEL, K.V.SRI KUMAR, KAMINI JAISWAL, M.N.SHROFF, N.K.SAHU, P.H.Parekh, RIMA BHANDARI, S.GANESH RAO, Smriti Mishra
C.H.PATEL, K.V.SRI KUMAR, KAMINI JAISWAL, M.N.SHROFF, N.K.SAHU, P.H.Parekh, RIMA BHANDARI, S.GANESH RAO, Smriti Mishra
Important Points
The judgment mandates strict adherence to the guidelines established in Lakshmi Kant Pandey v. Union of India for the adoption of children by foreign nationals. Failure to comply, particularly regarding informing biological parents of the adoption's effects, may render the adoption invalid and lead to legal prosecution.
Subject
Adoption - Foreign Nationals
Act Referred
Headnote
Guardians and Wards Act, 1890 - Section 7 - Child in adoption - Jurisdiction against order - Important question in relation to adoption of infants from orphanages or ashrams by foreign nationals is raised by appellants who claim to be social workers - They approached High Court invoked its appellate jurisdiction against order passed by District Judge Rajkot allowing application filed by Superintendent Kathiawar as power of attorney holder of Norwegian couple Section of Guardians and Wards Act and appointing Norwegian couple as guardian child with certain conditions mentioned in order - By time appeal came up for hearing law of adoption by foreign nationals was streamlined by this Court in two decisions Kant Union of India Union of India – Held, Guidelines laid down by Court are quite exhaustive - What is urged is that they are not being carried out either in letter or spirit - It therefore necessary to reiterate guidelines laid down by this Court in case and further make it clear that whenever an application is filed for permission to adopt child by foreign national then guidelines would be strictly adhered - Authority permitting adoption should explain to biological parent of child about nature and effect of adoption and possible permanent loss of correct from child - In absence of finding that authorized officer took precaution to explain effect of adoption it may be rendered infirm - This is demonstrated by facts case Superintendents holder power of attorney Norwegian couple became applicant and as Superintendent Ashram gave child in adoption - That was not proper - It was duty of Superintendent to have contracted mother and father if they were known and to explain to them effect of adoption unless they were not available - However court do not interfere with orders passed by courts below but as indicted above guidelines have to be enforced strictly as violation of same may not only render adoption infirm but may lead to proceeding against person infringing same – Order accordingly
Legal Category Hierarchy
Table of Contents
2. Contention that guidelines governing the adoption of children by foreign nationals were not implemented in letter or spirit. (Para 2 )
3. The authority permitting adoption must explain the effect of adoption to biological parents; the Superintendent acting as both applicant and giver was improper. (Para 2 )
4. Guidelines for adoption by foreign nationals must be strictly adhered to, including explaining the effect of adoption to biological parents, to ensure validity. (Para 2 , 3 )
5. Appeals disposed of; lower court orders maintained; guidelines reiterated with warning that non-compliance may invalidate adoption or lead to prosecution. (Para 2 , 3 )
6. What is the duty of the authority permitting the adoption of a child by a foreign national regarding biological parents?
The authority permitting adoption must explain to the biological parents the nature and effect of the adoption and the possible permanent loss of contact from the child. (Para 2 )
7. What are the legal consequences of failing to strictly adhere to the guidelines for adoption by foreign nationals?
Violation of or non-compliance with the guidelines may render the adoption infirm or invalid and may expose the persons concerned to strict action, including prosecution. (Para 2 , 3 )
8. Is it proper for an orphanage superintendent to act as both the applicant's power of attorney holder and the party giving the child in adoption?
No, such an arrangement is improper as the Superintendent's duty is to contact the biological parents and explain the effect of the adoption. (Para 2 )
JUDGMENT
R. M. SAHAI, J. - An important question in relation to the adoption of infants from orphanages or ashrams by foreign nationals is raised by the appellants, who claim to be social workers. They approached the High Court, invoked its appellate jurisdiction against the order passed by the District Judge, Rajkot, allowing the application filed by Superintendent, Kathiawar Nirashrit Balashram as power of attorney holder of a Norwegian couple under Section 7 of the Guardians and Wards Act, 1890 and appointing the Norwegian couple as the guardian of the child with certain conditions mentioned in the order. By the time the appeal came up for hearing, the law of adoption by foreign nationals was streamlined by this Court in two decisions; Lakshmi Kant Pandey v. Union of India and Laxmi Kant Pandey v. Union of india . The learned Single Judge, therefore, after examining the conditions imposed by the District Judge held that the guidelines laid down by this Court had been scrupulously followed. The order was maintained in appeal as well.
2. The guidelines laid down by the Court are quite exhaustive. What is urged is that they are not being carried out either in letter or spirit. It is, therefore, necessary to reiterate the guidelines laid down by this Court in the case of Lakshmi Kant Pandey and further make it clear that whenever an application is filed for permission to adopt a child by a foreign national then the guidelines would be strictly adhered to. The authority permitting adoption should explain to the biological parent of the child about the nature and effect of the adoption and the possible permanent loss of correct from the child. In absence of a finding that the authorised officer took precaution to explain the effect of adoption it may be rendered infirm. This is demonstrated by the facts of this case as the Superintendent, as holder of power of attorney of the Norwegian couple, became the applicant and as Superintendent of the Ashram gave the child in adoption. That was not proper. It was the duty of the Superintendent to have contracted the mother and the father, if they were known, and to explain to them the effect of adoption unless they were not available. However, we do not interfere with the orders passed by the courts below, but as indicted above, the guidelines have to be enforced strictly, as violation of the same may not only render the adoption infirm, but may lead to proceeding against the person infringing the same.
3. The appeals are thus disposed of by reiterating the guidelines laid down by this Court and stating that any violation of these or non-compliance may lead to adopting being declared invalid and expose the persons concerned to strict action including prosecution.
