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High Court of Judicature at Bombay
V.M. KANADE & S.C. GUPTE, JJ.
Varsha Sanjay Shinde & Others
Versus
The Society of Friends of the Sassoon Hospitals & Others
Writ Petition No. 9227 of 2013 Along with Civil Application No.2582 of 2013
Decided On : 18-10-2013
Adoption - Juvenile Justice (Care & Protection of Children) Act, 2000, Guidelines of 2011 - Summary of Acts and Sections: Juvenile Justice (Care & Protection of Children) Act, 2000, Rules of 2011 - The judgment discusses the conflict between the State Adoption Resource Agency (SARA) and the Adoption Recommendation Committee (ARC) in the process of adoption. It emphasizes the need for adherence to the Guidelines of 2011 and the role of Central Adoption Resource Authority (CARA) as the nodal agency in inter-country adoptions. The court dismisses the petition and directs compliance with adoption formalities within six weeks for the Interveners and the Petitioners.
Fact of the Case:
The Petitioners sought a writ to adopt a child, Isha, and challenged the decision to give her in adoption to Overseas Indians. They alleged that the adoption decision was contrary to the Guidelines of 2011 and that the adoption agencies favored foreign couples over Indian parents.
Finding of the Court:
The court found that the child had already been approved for adoption by Overseas Indians and that the Petitioners had no priority to claim the child. It expressed displeasure over the delay caused by SARA and ARC in issuing the Recommendation Certificate and directed compliance with adoption formalities within six weeks for the Interveners and the Petitioners.
Issues: Conflict between SARA and ARC, compliance with adoption guidelines, priority of Indian parents in adoption, financial gain in adoption, and delay in adoption formalities.
Ratio Decidendi: The court emphasized adherence to the Guidelines of 2011, the role of CARA as the nodal agency in inter-country adoptions, and the need to avoid unnecessary delay in the adoption process. It also highlighted the priority of Indian parents in adoption and the prohibition of financial gain through adoption.
Final Decision: The petition was dismissed, and compliance with adoption formalities within six weeks was directed for the Interveners and the Petitioners. The court proposed additional guidelines for in-country and inter-country adoptions, and the matter was kept pending for compliance monitoring.
Certainly. Based on the provided legal document, here are the key points summarized:
The case involves a dispute over the adoption process, specifically concerning the adoption of a child named Isha, and whether the process adhered to the guidelines issued in 2011, including the roles of CARA, SARA, and ARC (!) (!) .
The court emphasized that the primary authority in inter-country adoption is CARA, which must supervise and regulate the process, with SARA and ARC functioning as subordinate agencies responsible for expediting and ensuring compliance with procedural guidelines (!) (!) .
The Guidelines of 2011, framed under the relevant law, set out the principles and procedures for adoption, including the importance of prioritizing in-country adoption (80%) over inter-country adoption (20%), and giving preference to Indian parents before considering foreign couples (!) (!) .
The process requires that the Home Study Report be completed within two months, and Recommendation Certificates be issued within specific time frames—15 days for regular cases and 5 days for special needs children—by ARC or SARA (!) (!) .
The court observed that SARA and ARC had acted beyond their jurisdiction by causing delays, improperly directing the show of children to Indian and foreign parents, and not adhering to the prescribed time frames, which hindered the smooth functioning of the adoption process (!) (!) .
The role of CARA as the central nodal agency is to oversee and facilitate inter-country adoptions, including issuing No Objection Certificates, and to ensure that agencies follow the statutory guidelines and procedures (!) (!) .
The court found that the procedures for showing children to prospective adoptive parents (PAPs), including the requirement to show the child to multiple Indian parents before considering foreign adoption, were not properly followed, leading to unnecessary delays and conflicts (!) (!) .
Allegations of financial motives influencing the preference for foreign adoption over Indian adoption were considered unfounded, as the procedure and fees prescribed in the guidelines were scrupulously followed, and there was no evidence of malafide intent (!) (!) .
The court directed ARC to issue the Recommendation Letter within two weeks, and CARA to complete the formalities of adoption within six weeks for the current case, while also ensuring that the Petitioners are shown another child within the same period (!) (!) .
The court highlighted the necessity for agencies to coordinate properly, follow the statutory guidelines strictly, and avoid arbitrary actions that cause delays, emphasizing that the welfare of the child is paramount (!) (!) .
Additional guidelines were laid down to ensure that the process remains transparent, timely, and in accordance with the statutory framework, including the proper execution of the priority list and adherence to prescribed timelines for recommendation and approval (!) (!) .
The case was ultimately disposed of with directions to ensure compliance with the guidelines, and the Petitioners were to be given an opportunity to be shown another child if they were not granted custody of Isha, with ongoing monitoring to prevent future delays (!) (!) .
Please let me know if you need a detailed analysis or specific legal advice regarding this case.
P.C.:-(V.M. Kanade, J.)
1. Grievance of the Petitioners is that Respondent No.1 has shown their inability to give the child – Isha in adoption to them on the ground that intervenors who have filed Civil Application No.2481 of 2013 viz Mrs. Rachel Mathew and her husband Mr. Raj Narayan Mysore who are Overseas Indians residing in USA, have already approved the child, before the child was shown to the Petitioners. Petitioners, therefore, are seeking an appropriate writ, order and direction, directing Respondent No.1 and other Respondents to give the said baby girl Isha in adoption to the Petitioners.
2. Petitioners have challenged the decision of Respondent No.1 of giving the baby girl Isha in adoption to the Intervenors on the ground that the said decision is contrary to the guidelines which have been laid down by the Ministry of Women and Child Development in a Notification issued on 24/6/2011 which laid down the guidelines covering the adoption of children pursuant to powers given by sub-section (3) of section 41 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as “the said Act”).
3. Petitioners got married on 17/4/2001 and, unfortunately, were not blessed with becoming parents of their biological child and, therefore, they decided to adopt a child. Petitioners registered their names with Respondent No.1 to adopt a child on 05/09/2012. According to the Petitioners, in May 2013 detailed home study of the Petitioners was done and they were informed by Respondent No.2 to visit Respondent No.1 on 28/7/2013 to select a baby. Accordingly, Petitioners visited the premises on 29/07/2013 and saw three babies and decided to adopt a baby Isha and this decision was communicated to Respondent No.1 and also written communication was given on the next day, i.e. on 30/07/2013. Petitioners were informed, however, that baby Isha had been shown to foreign couple and they ave decided to adopt her. Respondent No.2 is a State Adoption Resource Agency (hereinafter referred to as “SARA”). Respondent No.1 submitted home study report of the Petitioners dated 16/08/2013 within seven days. A pre-adoption counseling meeting was organized by Respondent No.1 on 30/8/2013. Respondent No.1 sent a list of 13 babies of special needs to Petitioner on 10/9/2013. Petitioner, however, informed that they wanted to adopt a baby girl Isha. Being aggrieved by the decision of Respondent No.1 to give baby Isha to Intervenors viz. Mrs Rachel Mathew and her husband Mr Raj Narayan Mysore, Petitioners have approached this Court.
4. Respondent No.1 is an organization which looks after abandoned children and helps them in giving them in adoption to Indian parents and also is entitled to give children in adoption to foreigners according to the guidelines framed by the Union of India. Respondent No.2 – SARA is a State Agency which works in coordination with Central Adoption Resource Authority (CARA). Respondent No.3 (CARA) functions as a Nodal body for adoption of Indian children which is under an obligation to monitor and regulate in-country and inter-country adoptions. Respondent No.4 is the Adoption Recommendation Committee (ARC) which has to issue recommendation certificate within 15 days after the Home Study Report is placed before it.
5. It has come on record that the Petitioners, initially, were registered with Respondent No.1 in 2008 and a baby girl was shown to them. However, they decided not to take the said girl in adoption. This fact is not mentioned by the Petitioners in their Petition. However, in the affidavit-in-reply filed by Respondent No.1 this fact was disclosed and the Petitioners have admitted about their registration in 2008 and their refusal to accept the child on personal ground in the same year. All parties have filed their detailed affidavit-in-reply and Respondent No.1, Intervenors in Civil Application No. 2481 of 2013 and Respondent No.3 (CARA) have opposed the submissions made by the learned Couns
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