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2024 Supreme(Cal) 7
IN THE HIGH COURT AT CALCUTTA
SABYASACHI BHATTACHARYYA, J.
Fabian Ricklin alias Ranabir - Appellant
Versus
State of West Bengal & Others
- Respondent
W.P.A. No. 3792 of 2023
Decided On : 05-01-2024
For the petitioner:Jhuma Sen, Trisha Saha, Arpita De, Dinesh Vishwakarma, Advocates. For the Respondents:R5, Pranit Bag, Sourav Chunder, Mandabi Choudhury, R6, Rahul Karmakar, Sounak Mukherjee, R7, Biswabrata Basu Mallick, Parna Roy Choudhury, Advocates.
The right to privacy of the unmarried mother prevails over the adoptee's right to know his biological parents. The petitioner's delay in seeking root search after attaining majority led to the dismissal of the writ petition.
Headnote:
Adoption - Right to Know Biological Parents - Lakshmi Kant Pandey (1984) 2 SCC 244, Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption of 1993, United Nations Convention on the Rights of Child, 1989, K.S. Puttaswamy and Anr. Vs. Union of India and Ors. (2017) 10 SCC 1 - Regulation 47(6) of the 2022 Regulations preserves the right of the mother to privacy, surpassing the right of the child to know the identity of the mother. The right to privacy of an unmarried mother stands on a completely different pedestal as the question is of survival as regards social ostracization. The right to dignity of an individual is natural and inalienable, being intrinsic to freedom and liberty. Such right to dignity has been found intertwined with the right to privacy under Article 21 of the Constitution of India in Puttaswamy’s case. The petitioner does not have a remedy either in damages or in penal action against the Specialised Adoption Agency insofar as the non-preservation of the surrender deed is concerned. Hence, the remedy sought in the present writ petition cannot be granted, particularly in view of the delay of almost two decades by the petitioner to come up with the present search after attaining majority.
Fact of the Case:
The petitioner, a Swiss citizen adopted from India, seeks information about his biological parents. The respondent no. 5, the Specialized Adoption Agency, claims to not have the relinquishment deed or other essential documents for the adoption. The petitioner argues for the preservation of adoption records and his right to know his biological parents.
Finding of the Court:
The court found that the right to privacy of the unmarried mother prevails over the petitioner's right to know his biological parents. The petitioner's delay in seeking root search after attaining majority led to the dismissal of the writ petition.
Issues: The court considered whether the petitioner has a legal or constitutional right to search out the particulars of his biological parents/mother, and if so, whether the said right prevails over the right to privacy of the petitioner's biological mother. It also addressed the legal obligation of the respondents to preserve the records relating to the relinquishment of the petitioner and the available remedies for the petitioner.
Ratio Decidendi: The right to privacy of the unmarried mother prevails over the petitioner's right to know his biological parents. The petitioner's delay in seeking root search after attaining majority led to the dismissal of the writ petition. The court found that the petitioner does not have a remedy against the Specialised Adoption Agency for the non-preservation of the surrender deed.
Final Decision: The writ petition was dismissed without any order as to costs.
JUDGMENT
1. The petitioner is a Swiss citizen. He was adopted from India by his Swiss parents in the year 1988. The petitioner alleges that after coming of age, he commenced a search for his roots. It is alleged that his attempts to find out his biological parents and their whereabouts were met with resistance by the respondent no. 5, which was the Specialized Adoption Agency through which the petitioner was given in adoption. Hence, the petitioner has taken out the present writ petition through his constituted attorney, who according to the petitioner is an accomplished social worker in the field of adoption and root search.
2. Learned counsel for the petitioner argues that it was the bounden duty of the respondent-Authorities, in particular the respondent no. 5-Agency, to preserve the records of the adoption, in particular the relinquishment deed executed by the biological mother of the petitioner. Learned counsel places reliance on Lakshmi Kant Pandey Vs. Union of India, reported at (1984) 2 SCC 244, which is a landmark judgment governing the field of adoption, particularly inter-country adoption. In the said judgment, the Supreme Court categorically directed the recognized adoption agencies to maintain the records of the adoption. However, the respondent no. 5/Agency now pleads that they are not in possession of the deed of relinquishment or even the admission register or child study report which were essential documents for giving the petitioner in adoption.
3. There has been a blame-game between respondent no. 5, the Adoption Agency and respondent no. 6, the Scrutinizing Agency with regard to who has custody of the scrutiny report and the relinquishment deed. Being caught in the cross-fire, the petitioner is in doubt as to whether his adoption itself was valid in the eye of law.
4. It is argued that the respondent no. 5 as well as the other respondents ought to be directed to produce the relinquishment deed; in default, due action be taken against the respondents, including initiation of criminal proceedings, since the validity of the adoption procedure itself, in the absence of such document, is vitiated in law.
5. While arguing on whether any other remedy could be provided to the petitioner in the absence of any deed of relinquishment, learned counsel for the petitioner places reliance on paragraph no. 16 of Lakshmi Kant Pandey (supra) which recorded that a child study report should be inclusive of opinion including their health and details of the mother’s pregnancy and birth. Even the registers which are mandatorily required to be maintained by respondent no. 5 can further assist the petitioner in finding his identity and roots.
6. Alternatively, a serious doubt will be cast on the legality of the entire adoption procedure of the petitioner, which took place between 1987 and 1988.
7. Learned counsel then addresses the issue as to whether the petitioner’s right to know about his biological parents is barred due to the applicability of the right of privacy of his biological mother, who allegedly relinquished the petitioner to the respondent no. 5-agency.
8. It is argued that no relinquishment deed or other document has been produced till date before the Court by the respondents to indicate the assertion of the biological mother to conceal her identity. Regulation 47(6) of the Adoption Regulations, 2022 (for short, “the 2022 Regulations”), it is argued, provides that the right of an adopted child shall not infringe the right to privacy of the biological parents. Regulation 47(1) of the 2022 Regulations, it is argued, is to be read conjointly as it provides that if the biological parents, at the time of surrender of the child, have specifically requested anonymity, then the consent in writing of the biological parents shall be taken by the Specialised Adoption Agency or the District Child Protection Unit, as the case may be, before divulging information. Here, no such endeavour has been made on the part of the respondent no. 5.
