1999 Supreme(Bom) 831

IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
In the matter of the appointment of guardian of person of a
female minor Doreen Theresa D’Souza.
Manuel Theodore D’Souza..... Petitioners.
Indian Guardianship Petition No. 74 of 1999 alongwith Indian Guardianship Petition No. 75
of 1999, decided on 27-10-1999.
Advocates appeared :
Rakesh Kapoor i/b. Rakesh Kapoor Co., in Indian Guardianship Petition No. 74 and 75 of 1999, for the petitioners in both petitions.
C.J. Sawant, A.G., for the State.
D.Y. Chandrachud, A.S.G. with Girish S. Kulkarni, for the Union of India.
Ms. Anamika Chatterjee for D.B. Bhosale, for Bar of Maharashtra Goa.
Iqbal Chagla, Sr.A. with J.P. Sen, as Amicus Curiae.
Joaquim Reis, with Rajesh N. Kachare, for Arch Bishop of Mumbai.
Homai Billimoria, Sr. Committee Member for I.C.S.W.
Mrs. Bhavana Kamdar, for I.C.S.W.

Headnote:Articles 21, 225 and 226-Right to life to orphaned or abandoned children-Under Article 225 as well as under Article 226, the High Court can pass direction or issue directions to the state for giving effect to the fundamental rights of the abandoned or orphaned children given in guardianship to be adopted as a part of fundamental right to life by willing parents which would be enforceable civil rights.-One thing has emerged from consideration of precedents on fundamental rights, directive principles and International Covenants is that the abandoned, the orphaned, the destitute or a similarly situated child has a right to be adopted as a part of his fundamental right to life. The fundamental right to life to become meaningful to the child includes the right to be adopted. The State, therefore, cannot deprive this right to the child. Deprivation can be in two forms, by executive instructions or by enacting legislation which would affect right to life as also by failing to issue instruction or enact legislation to give effect to this right to life. The two are but two sides of the same coin. If the State fails to enact legislation or issue administrative instructions in the exercise of its executive power can the Courts as protectors and upholders of the Constitution remain judicially inactive or passive. While considering the judgments on the role of the judiciary in giving effect to the preamble and directive principles and international covenants while interpreting fundamental rights, Courts have issued directions, where the State has failed to do. In the instant case as we have seen the right of adoption as a part of right to life has also been carved out form the International Conventions to which India is a signatory and from the directive principles as set out under Article 39 (f) which stands embodied into Article 21. In the case of Maganbhai Ishwarblwi Patel (supra) the Apex Court upheld the right of the executive to enforce the International Conventions or Awards in the absence of Legislation. The question, therefore, ultimately is whether this Court can issue directions which would be in the nature of subordinate legislation, pending legislation by the Constitutional arm namely the Legislature. The Constitution has conferred on the High Courts power under Article 226 to issue to any person or authority including in appropriate cases Government, writs in the nature of mandamus or any other direction or order. This is the Constitutional power conierred on the High Court. Apart from this Constitutional power this High Court also exercises the powers conferred on it under the amended Letters Patent. By virtue of Clause 17 as already stated, it has jurisdiction over infants. This jurisdiction has been traced and identified as the power of parens patriae. The power of the King in England in other words, the power of the sovereign stands delegated to the Court exercising the jurisdiction over the person and property of minors. This power of the Court has been protected by Article 225 of the Constitution. We have also discussed the nature and extent of the power of parens patriae. The power to enact Legislation in matters pertaining to adoption is traceable t Entry 5 of List III of the VIIth Schedule to the Constitution of India. That being in the concurrent list, the executive power can be exercised both by the State Government as also by the Union Government. Does this executive power of the State take away the power of parens patriae delegated to the Court. It must be remembered that the Courts were exercising power of parens patriae atleast within this jurisdiction before the Guardians & Wards Act in fact by Section 3 has also saved the power of the Court. The power, therefore, over the person and property of minors was exercised by the Courts. Such a power would be in the nature of both exercise of judicial as well as executive power. Therefore, within this jurisdiction in the absence of legislation considering Article 225 this Court in the matter of protection of the person and property of the minor as parens patriae can issue directions which would be protected by Article 225 of the Constitution of India. This power would be as a delegate, to issue executive instructions and judicial directions in conformity with the power protected by Article 225. It is true that historically both in England and India the power of parens patriae has never been exercised to give children in adoption. The reason is apparent. In England the right to adopt is not found as in the common law nor does it form a part of equity jurisdiction of English Courts. The power has been conferred and is traceable to rights conferred by statute. In India, the right to adopt to a limited extent was part of the customary right of Hindus. This customary right which was recognised by law is now codified into the Hindu Adoption and Maintenance Act and is of wider amplitude than under Customary law. The Court as parens patriae, therefore, had no occasion to exercise the power of parens patriae in giving children in adoption. This position has now changed. The right of the orphaned, the abandoned, the destitute and/ or similarly situated child has now been recognised as a part of his fundamental right founded in Article 21, namely the right to life. Once such a right has been traced the child cannot be denied the right to be adopted. The failure by the other two Constitutional branches namely the Legislature and the Executive makes it possible for this Court to exercise its power of parens patriae. It is true that normally it is the father or the parents who has the control of the children. In the issue before us we have considered a class of children who have been either been abandoned or given in custody of Homes under the provisions of the Juvenile Justice Act. These children ultimately have been given in guardianship over whom and/or in respect of whom the power of parens patriae is being exercised. To my mind, therefore, both under Article 225 as well as under Article 226 this Court .can either pass directions or issue directions for giving effect to the fundamental rights of these children. The reliefs to be granted, conclusions and directions.

       (1) The fundamental right to life of an orphaned, abandoned, destitute or similarly situated child includes the right to be adopted by willing parenti parents and to have a home, a name and a nationality. The right to be adopted, therefore, is an enforceable civil right which is justiciable in a Civil Court;

       (2) In the absence of any Legislation setting out who can adopt, person or persons who has/ have taken a child in guardianship under the Guardians and Wards Act will have the right to petition the Courts to adopt the child;

       (3) As jurisdiction to pass orders on guardianship is in the District Court and/ or a High Court having Jurisdiction under its Letters Patent, pending legislation, it will be these Courts which have the right to give the child in adoption by way of a miscellaneous application in the Petition for Guardianship.

       (4) Considering that it is the welfare of the child which is paramount the Court before giving the child in adoption must satisfy itself, that it is in the best interest of the child that the person or persons whom guardianship of the child is given is and/or are suitable parent or parents.

       (5) A period of 2 years must elapse before the Court considers the petition for adoption from the date the Court passes the order or guardianship. Before making an order of adoption the following directions will have to be satisfied. A home study should be available which must contain amongst other information the following :-

       (a) The financial status of the adoptive parent or parents and their capacity to look after the needs of the child.

       (b) The health and the medical Report of the adopted parenti parents.

       (c) The opinions formed by the interviewer, after interviewing the adoptive parent/parents and the child if possible.

       (d) Progress Report of the child after having been given in guardianship, including state of health.

       (e) The cost of preparing the Report shall be Borne by the adoptive parent/parents.

       (f) Before passing final orders on the petition, the views of I.C.S.W. shall be heard. The costs of I.C.S.W. will be Borne by the adoptive parent/parents. The adoptive parent/parents will have to deposit a sum or Rs. 500/- initially. Any additional expenses will be reimbursed by the adoptive parenti parents.

       (6) As a child can be given in guardianship to person/persons eligible under the Indian Guardianship & Wards Act and as they also have been given the right to adopt, the issue whether a childless couple has a fundamental right to adopt need not be answered, though prima facie it may be possible to arrive at that conclusion.

       (7) A Guardian/Guardians who have been appointed by Courts in the past and whose guardianship continues, can apply for adoption continues, can apply for adoption if the period of two years has elapsed, since the date of order of appointment of guardianship.

       (8) The legal consequences of an order of adoption will be that the personal law of the adoptive parent/parents would be applicable to the child whose right of inheritance will be same as that of a natural Born child.

       (9) As a consequence of adoption the adopted parent/parents will have the right to apply and get rectified the Register of Births showing the adopted parent/parents as parents of the adopted child and bearing their name and surname if so desired by the adoptive parents.