IMPORTANT POINT
Guidelines given in various judgments for compliance in case of adoption of Indian children by foreign parents would not apply to category of children who were living with their biological parents.

Headnote:Guardians and Wards Act, 1890-Sections 7, 10 and 17-Petition filed by respondents 2 and 3 foreigners Italian, to adopt female child, daughter of appellant-District Judge was of the view that since adoption was sought to be effected by a foreign couple, Guidelines prescribed for Adoption of Indian children "by Ministry of Welfare, Govt. of India would have to be followed irrespective of whether child s biological parents were alive or not-Petition was rejected as directions in the guidelines had not been followed-High Court dismissed appeal holding in addition that respondents 2 and 3 would have to get No Obection Certificate from Central Adoption Resource Agency (CARA)-Appeal-Distt. Judge and High Court erred in rejecting the petition-For adoption of Indian children by foreign parents, three classes of children were categorised-Third category i.e. children living with their biological parents had been expressly excluded from consideration-Directions given in the decisions were limited to 1st and IInd categories of children-In the case of appellant, guidelines did not apply and respondents 2 and 3 had produced evidence which fulfilled all particulars required of a Home Study Report-Impugned judgment was liable to be set aside-Respondents 2 and 3 were entitled to be appointed guardians of female child, daughter of appellant-Certain conditions to be complied with by respondents.
       Held : In our view, the High Court and the District Judge erred in not considering the material produced by respondents No. 2 and 3 in support of their application and in rejecting the application under the Guardians and Wards Act, 1890 solely on the basis of the guidelines. The background in which the guidelines were issued was a number of decisions of this Court, the first of which is Lakshmi Kant Pandey v. Union of India [AIR 1984 SC 469 : (1984) 2 SCC 244]. This is borne out from the stated object of the guidelines as set out in paragraph 1.1. thereof which "is to provide a sound basis for adoption within the frame work of the norms and principles laid down by the Supreme Court of India in the series of judgments delivered in L.K. Pandey V. Union of India and Others between 1984 and 1991". The original decision of the Court was taken on the basis of a letter written by one Laxmi Kant Pandey complaining of mal-practices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The judgment has considered the problem at great length after affidavits were filed not only by the Indian Council of Social Welfare but also by Foreign Organisations and Indian Organisations which were engaged in offering and placing Indian children for adoption by foreign parents. The decision has referred to three classes of children: (i) children who are orphaned and destitute or whose biological parents cannot be traced; (ii) children whose biological parents are traceable but have relinquished or surrendered them for adoption; and (iii) children living with their biological parents. The third category has been expressly excluded from consideration as far as the decision was concerned "for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents" [Ibid paragraph 11 of the Report]. The reason is obvious. Normally, no parent with whom the child is living would agree to give a child in adoption unless he or she was satisfied that it would be in the best interest of the child. That is the greatest safeguard. (Para 8)
       None of these provisions in the several decisions of this Court impinge upon the rights and choice of an individual to give his or her child in adoption to named persons, who may be of foreign origin. The Court in such cases has to deal with the application under Section 7 of the Guardians and Wards Act, 1890 and dispose of the same after being satisfied that the child is being given in adoption voluntarily after being aware of the implication of adoption viz. that the child would legally belong to the adoptive parents family, uninduced by any extraneous reasons such as the receipt of money etc.; that the adoptive parents have produced evidence in support of their suitability and finally that the arrangement would be in the best interest of the child. (Para 15)
       In the circumstances of the case, the decision of the High Court is set aside and the application of the respondents No. 2 and 3 filed under the Guardians and Wards Act, 1890 is allowed. The respondent Nos. 2 and 3 are appointed guardians of the child Alka the daughter of Anokha and late Sumer Singh with liberty to take her to Italy for the purpose of adopting her in accordance with Italian law. However, before the child is taken out of the country the following conditions must be complied with:
        (1) The respondents No. 2 and 3 will file an affidavit before the District Court, Alwar with an undertaking to adopt the child within two years and to produce the child, if so required, till proof of adoption is filed with the District Court;
        (2) The respondents No. 2 and 3 shall keep in deposit with the District Court an amount of Rs. 50,000/- (Rupees fifty thousand only) to cover the air fare for the possible repatriation of the child to India till the child is legally adopted; the amount shall be kept by the District Court in a short term fixed deposit with any Nationalised bank and the Fixed Deposit Receipt is to be held to the credit of the minor, Alka. Upon proof of her adoption by the respondents No. 2 and 3 the amount deposited shall be forthwith returned to the said respondents or their duly authorised representative together with the interest.
        (3) The respondents No. 2 and 3 must undertake by affidavit filed before the District Court to submit annual reports to the District Court of the child s welfare and progress in school with photographs and to inform the District Court of any change of address till the child is legally adopted. (Para 17)

JUDGMENT

Ruma Pal, J.-Leave granted.

2. Baby Alka Singh is the daughter of Smt. Anokha and Sumer Singh Yadav. Sumer Singh Yadav was a taxi driver. The Respondents No. 2 and 3 are Italian nationals. During their frequent visits to India either singly or jointly for the last 20 years, they used Sumer Singh s taxi to tour the country. About three years ago, Sumer Singh died as a result of an accident which took place after he had dropped the respondents No. 2 and 3 at their destination. Sumer Singh and Anokha, the appellant before us, had six children, five of whom were girls. After Sumer Singh s death, the respondents No. 2 and 3 who at that point of time had no children of their own wanted to adopt one of the girls viz., Baby Alka. Smt. Anokha agreed.

3. In January 2001, a petition was filed by the respondents No. 2 and 3 under Sections 7, 10 and 17 of the Guardians and Wards Act, 1890 in the Court of District Judge, Alwar in which it was stated inter alia that they were issue-less, that they were responsible citizens, that they have their own business and have a very good income, that they own moveable and immovable properties in Italy, that they would love and look after the well being of Baby Alka and provide her the best education and milieu at Italy. In support of their application, the respondents No. 2 and 3 filed the following material before the District Judge:

1. A certificate of the Public Prosecutor of the Court of Venice of the effect that there were no criminal proceedings pending against either of them;

2. Report of the Family Advisory Bureau of the local Health Office consequent upon investigation made giving the family background of the respondents, the present financial status, their vocation, their social status and their personality. The conclusion in the report was that the couple had been married since 1986 and they always wished to have a natural child and another adopted one. They had till the date of the report been unsuccessful in having a child of their own;

3. A certificate of the psychologist and a social worker relating to their residential accommodation, the marital harmony between the respondents No. 2 and 3 and their parental competency;

4. A certificate of citizenship issued by the municipal authorities;

5. A decree of the Juvenile Court of Venice on the basis of the material collected declaring that the couple was "well-balanced, mature, cohesive, conscious of the problems concerning adoption" and that they were "suitable to adopt a minor of foreign nationality";

6. Income Tax records certifying solvency;

7. A certificate issued by the Chamber of Commerce, Industry and Agriculture, Venice relating to the business carried on by respondent No. 2.

4. The District Judge issued notices to the Social Welfare Department of the State of Rajasthan as well as to the appellant and also directed notices to be published in the local newspapers of the proposed appointment of the respondents No. 2 and 3 as the guardians of Baby Alka. The notices were duly published. The appellant filed an affidavit before the District Judge in which she stated that she had known the respondents No. 2 and 3 for the last 20 years and she had no objection if they were appointed guardians of her baby daughter. A report was also filed on behalf of the Dy. Collector, Social Welfare Department, Alwar on 26.7.2001 recommending that the child could be given in adoption. The report was submitted after investigating into the financial status of the late Sumer Singh s family and ascertaining the wishes of the appellant Anokha. Both the respondents also appeared before the District Judge and reiterated on oath that they would look after the child and were competent to do so physically, financially and emotionally.

5. The District Judge however was of the view that since the adoption was sought to be effected by a forei

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2003 Supreme(SC) 1302

IMPORTANT POINTGuidelines given in various judgments for compliance in case of adoption of Indian children by foreign parents would not apply to category of children who were living with their biological parents.

Cases Referred (6)

IMPORTANT POINT
Guidelines given in various judgments for compliance in case of adoption of Indian children by foreign parents would not apply to category of children who were living with their biological parents.