Full Judgment Text
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CASE NO.:
Appeal (civil) 6492 of 2005
PETITIONER:
St. Theresa’s Tender Loving Care Home & Ors.
RESPONDENT:
State of Andhra Pradesh
DATE OF JUDGMENT: 24/10/2005
BENCH:
ARIJIT PASAYAT & ARUN KUMAR
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P (C) No.9412 of 2003)
ARIJIT PASAYAT, J.
Leave granted.
The basic issue involved in this appeal is whether the
appellant no.1 should be permitted to make arrangement for
adoption of a child named Sahiti presently about five years
by appellant nos. 2 and 3. Appellant no.1 claims to be an
organization interested in the welfare of abandoned children
and to secure a congenial atmosphere for their upbringing.
Challenge in this appeal is to an order dated 23.12.2002
passed by the Andhra Pradesh High Court dismissing the
appeal purported to have been filed under Section 19(1) of
the Family Courts Act, 1984 (in short the ’Act’) and Section
47 of the Guardians and Wards Act, 1890 (in short the
’Guardians Act’). The appeal before the Andhra Pradesh High
Court was filed by the appellants questioning correctness of
the order dated 8.7.2002 passed by the learned Judge, Family
Court, Secunderabad, rejecting the prayer made by the
appellants under Sections 7 to 10 of the Guardian Act.
Stand of the appellants before the Family Court was that it
is a society registered under the Andhra Pradesh (Telangana
Area) Public Societies Registration Act, 1350 Fasli (in
short ’Societies Act’) purportedly for carrying social
service activities. One of its main objectives is to
provide shelter to abandoned children more particularly by
unwed mothers, and as noted above to see them comfortably
settled in adopted homes. The appellants 2 and 3 are
residents of U.S.A. According to petition they were married
on 19.10.1999. They had earlier adopted one son, but wanted
to adopt a female child from India and for that purpose
wanted to adopt the girl named Sahiti, born on 14.6.2000.
The claim that they are well settled in life with decent
income, would be eligible for adopting the child and also
were sure to provide a happy home to the adopted child. The
minor child Sahiti was stated to be daughter of an unmarried
mother by name Esther, a native of Hyderabad and earning
livelihood as a labourer. Due to social stigma she
relinquished the child in favour of the appellant no.1 on
14.6.2000 and executed a Relinquishment Deed. The child
suffered from various ailments and her adoption in India did
not materialize. On that ground the Voluntary Coordination
Agency( in short ’VCA’) gave clearance for the minor to be
given in adoption abroad. It was stated in the petition
that inquiries made by appellant no.1 revealed that none of
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her relatives were ready and willing to take care of the
minor. Since 14.6.2000 the child has been under the care and
custody of appellant no.1. The State of Andhra Pradesh
represented by the Director of Women Development and Child
Welfare Department resisted the claim. Their stand was that
it had come to the notice of the Government that some
unscrupulous organizations in Andhra Pradesh were indulging
in child trafficking. With a view to curb menaces, the
Government had issued G.O.Ms. No.16 of 2001 banning
relinquishment of a child. Since the claim of the appellant
was based primarily on a Relinquishment Deed purported to
have been executed by the mother of the child, inquiry was
directed to be conducted by the Crime Branch of CID along
with other cases. After inquiry, Crime Branch (CID)
reported that the Relinquishment Deed was a fake and
fabricated document and the witnesses to the Relinquishment
Deed were employees of appellant no.1. Therefore, paper
notification dated 4.6.2001 was made calling for claims by
biological parents within 30 days in respect of child Sahiti
and eight other cases. The Government of India had also
addressed to the Central Adoption Resource Agency ( in short
’CARA’) about the false claim made by appellant no.1 and
requested to initiate action against appellant no.1. The
Family Court rejected the application holding that the VCA
issued no objection certificate on the ground that Indian
parents had refused to adopt the child on the ground that
she was suffered from skin disease. The Family Court was of
the view that the so called reasons did not merit
acceptance. The child was also referred to child study
report which indicated that the child did not suffer from
any ailment. It was noted that letters of rejection by
Indian parents were not filed and the efforts of VCA for in
county adoption were not established. It was noted that the
effort was to be made in the light of decision of this Court
in Lakshmi Kant Pandey v. Union of India (1984 (2) SCC 244).
It was noted that in term of G.O.Ms. No.16 of 2001
relinquishment of a child by biological parents on grounds
of poverty, number of children or unwanted girl child could
not be permitted. Accordingly the petition filed was
rejected.
The view of the Family Court was affirmed by the High
Court. High Court noticed that appellant no.1 based its
claim on fabricated document and there was no genuine effort
to see that the child was adopted by Indian parents.
In support of the appeal learned counsel for the
appellants submitted that all possible efforts have been
made to see that the child is adopted by Indian parents. It
is not a fact that the child was not suffering from
ailments. If the child is kept in the care and custody of
the respondent no.1 and is sent to the children’s home it
would be traumatic for the child who has spent five years
with the appellant no.1 quite happily. The State Government
has accepted in public interest litigation that the children
who have been transferred to Shishu Vihar run by the State
Government are in a very pathetic condition. More than 100
children have lost their lives due to negligence on the part
of the authority running the home and because of poor
medical care, and even many of the children have ran away.
It is stated that all possible efforts have been made to
find out Indian parents without success. The request of
appellants 2 and 3 for adopting the child should have been
accepted as they were willing to adopt the child. Because of
prolonged litigation, they have shown some reluctance.
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Therefore, permission should be given to appellant no.1 to
arrange adoption by way of inter-country adoption.
In Lakshmi Kant Pandey case (supra) the guidelines and
the norms to be followed in the case of adoption by
foreigners were indicated in detail.
It is obvious that in a civilized society the
importance of child welfare cannot be over-emphasized,
because the welfare of the entire community, its growth and
development, depends on the health and well-being of its
children. Children are a "supremely important national
asset" and the future well-being of the nation depends on
how its children grow and develop. The great poet Milton put
it admirably when he said : "Child shows the man as morning
shows the day" and the Study Team on Social Welfare said
much to the same effect when it observed that "the physical
and mental health of the nation is determined largely by the
manner in which it is shaped in the early stages". The child
is a soul with a being, a nature and capacities of its own,
who must be helped to find them, to grow into their maturity
into fullness of physical and vital energy and the utmost
breath, depth and height of its emotional, intellectual and
spiritual being; otherwise there cannot be a healthy growth
of the nation. The child is father of the man, said
Wordsworth in "My Heart Leaps up". Now, obviously children
need special protection because of their tender age and
physique, mental immaturity and incapacity to look after
themselves. That is why there is a growing realisation in
every part of the globe that children must be brought up in
an atmosphere of love and affection and under the tender
care and attention of parents so that they may be able to
attain full emotional, intellectual and spiritual stability
and maturity and acquire self-confidence and self-respect
and a balanced view of life with full appreciation and
realisation of the role which they have to play in the
nation building process. Without that the nation cannot
develop and attain real prosperity because a large segment
of the society would then be left out of the developmental
process. In India this consciousness is reflected in the
provisions enacted in the Constitution of India, 1950 (in
short the ’Constitution’). Clause (3) of Article 15 enables
the State to make special provision, inter-alia, for
children and Article 24 provides that no child below the age
of fourteen years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.
Clauses (e) and (f) of Article 39 provide that the State
shall direct its policy towards securing inter-alia that the
tender age of children is not abused, that citizens are not
forced by economic necessity to enter avocations unsuited to
their age an strength and that children are given
opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and that childhood
and youth are protected against exploitation and against
moral and material abandonment. These constitutional
provisions reflect the great anxiety of the constitution
makers to protect and safeguard the interest and welfare of
children in the country. As was observed by a learned
Justice Children are innocent, vulnerable and dependent.
Abondoning children and encluding good foundation of life
for them is a crime against humanity. Children cannot and
should not be treated as chattels or saleable commodities or
play things. For full and harmonious development of their
personality, children should grow up in an atmosphere of
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happiness, love and understanding. In old Testament
Proverbs , XXII it is said "Train up a child in the way he
should go, and when he is old, he will not depart from it".
In "The Crescent Moon" Rabindranath Tagore said "I do not
love him because he is good, but because he is my little
child". The Government of India has also in pursuance of
these constitutional provisions evolved a National Policy
for the Welfare of Children. This Policy starts with a goal-
oriented perambulatory introduction:
The nation’s children are a supremely
important asset. Their nurture and solicitude are
our responsibility. Children’s programme should
find a prominent part in out national plans for
the development of human resources, so that our
children grow up to become robust citizens,
physically fit, mentally alert and morally
healthy, endowed with the skills and motivations
needed by society. Equal opportunities for
development to all children during the period of
growth should be our aim, for this would serve out
larger purpose of reducing inequality and ensuring
social justice.
The measures are designed to protect children against
neglect, cruelty and exploitation and to strengthen family
ties "so that full potentialities of growth of children are
realised within the normal family neighborhood and community
environment". The National Policy also lays down priority in
programme formation and it gives fairly high priority to
maintenance, education and training of orphan and destitute
children. There is also provision in the National Policy for
constitution of a National Children’s Board. It is the
function of the National Children’s Board to provide a focus
for planning, review and proper coordination of the
multiplicity of services striving to meet the needs of
children and to ensure at different levels continuous
planning, review and coordination of all the essential
service.
The essence of the directions given in Lakshmi Kant
Pandey case (supra) is as follows:
(1)Every effort must be made first to see if
the child can be rehabilitated by adoption
within the country and if that is not
possible, then only adoption by foreign
parents, or as it is some time called ’inter-
country adoption’ should be acceptable.
(2) Such inter-country adoption should be
permitted after exhausting the possibility of
adoption within the country by Indian
parents.
(3) There is a great demand for adoption of
children from India and consequently there is
increasing danger of ill-equipped and
sometimes even undesirable organisations or
individuals activising themselves in the
field of inter-county adoption with a view to
trafficking in children.
(4) Following are the requirements which
should be insisted upon so far as a foreigner
wishing to take a child in adoption is
concerned. In the first place, every
application from a foreigner desiring to
adopt a child must be sponsored by a social
or child welfare agency recognised or
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licensed by the government of the country in
which the foreigner is resident. No
application by foreigner for taking a child
in adoption should be entertained directly by
any social or welfare agency in India working
in the area of inter-country adoption or by
any institution or centre or home to which
children are committed by the juvenile court.
This is essential primarily for three
reasons.
Firstly, it will help to reduce, if not
eliminate altogether, the possibility of
profiteering and trafficking in children,
because if a foreigner were allowed to
contact directly agencies or individuals in
India for the purpose of obtaining a child in
adoption, he might, in his anxiety to secure
a child for adoption, be induced or persuaded
to pay any unconscionable or unreasonable
amount which might be demanded by the agency
or individual procuring the child. Secondly
it would be almost impossible for the court
to satisfy itself that the foreigner who
wishes to take the child in adoption would be
suitable as a parent for the child and
whether he would be able to provide a stable
and secure family life to the child and would
be able to handle trans-racial, trans-
cultural and trans-national problems likely
to arise from such adoption, because, where
the application for adopting a child has not
been sponsored by a social or child welfare
agency in the country of the foreigner, there
would be no proper and satisfactory home
study report on which the court can rely.
Thirdly, in such a case, where the
application of a foreigner for taking a child
in adoption is made directly without the
intervention of a social or child welfare
agency, there would be no authority or agency
in the country of the foreigner who could be
made responsible for supervising the progress
of the child and ensuring that the child is
adopted at the earliest in accordance with
law and grows up in an atmosphere of warmth
and affection with moral and material
security assured to it. The record shows that
in every foreign country where children form
India are taken in adoption, there are social
and child welfare agency licensed or
recognised by the government and it would not
therefore use any difficulty, hardship or
inconvenience if it is insisted that every
application form a foreigner for taking a
child in adoption must be sponsored by a
social or child welfare agency licensed or
recognised by the government of the county in
which the foreigner resides. It is not
necessary that there should be only one
social or child welfare agency in the foreign
country through which an application for
adoption of a child may be routed; there may
be more than one such social or child welfare
agencies, but every such social or child
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welfare agency must be licensed or recognised
by the government of the foreign country and
the court should not make an order for
appointment of the foreign country and the
court should not make an rode for appointment
of a foreigner as guardian unless it is
satisfied that the application of the
foreigner for adopting a child has been
sponsored by such social or child welfare
agency.
(5) The position in regard to biological
parents of the child proposed to be taken in
adoption has to be noted. What are the
safeguards which are required to be provided
insofar as biological parents are concerned?
We may make it clear at the outset that when
we talk about biological parents, we mean
both parents if they are together or the
mother or the father if either is alone. Now
it should be regarded as an elementary
requirement that if the biological parents
are known, they should be properly assisted
in making a decision about relinquishing the
child for adoption, by the institution or
center or home for child care or social or
child welfare agency to which the child is
being surrendered. Before a decision is taken
by the biological parents to surrender the
child for adoption, they should be helped to
understand all the implications of adoption
including the possibility of adoption by a
foreigner and they should be told
specifically that in case the child is
adopted, it would not be possible for them to
have any further contact with the child. The
biological parents should to be subjected to
any duress in making a decision about
relinquishment and even after they have taken
a decision to relinquish the child for giving
in adoption, a further period of about three
months should be allowed to them to
reconsider their decision.
(6) But in order to eliminate any possibility
of mischief and to make sure that the child
has in fact been surrendered by its
biological parents, it is necessary that the
institution or center or home for child care
or social or child welfare agency to which
the child is surrendered by the biological
parents, should take from the biological
parents a document of surrender duty signed
by the biological parents and attested by at
least two responsible persons and such
document of surrender should not only contain
the names of the biological parents and their
address but also information in regard to the
brother of the child and its background,
health and development.
But where the child is an orphan, destitute
or abandoned child and its parents are not
known, the institution or center or home for
child card or hospital or social or child
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welfare agency in whose care the child has
come, must try to trace the biological
parents of the child and if the biological
parents can be traced name it is found that
they do not want to take back the child, then
the same procedure as outlined above should
as far as possible be followed. But if for
any reason the biological parents cannot be
traced, then there can be no question of
taking their consent or consulting them. It
may also be pointed out that the biological
parents should not be induced or encouraged
or even be permitted to take a decision in
regard to giving of a child in adoption
before the birth of the child or within a
period of three months from the date of
birth. This precaution is necessary because
the biological parents must have reasonable
time after the birth of the child to take a
decision whether to rear up the child
themselves or to relinquish it for adoption
and moreover it may be necessary to allow
some time to the child to overcome any health
problems experienced after birth.
(7) Of course, it would be desirable if a
Central Adoption Resource Agency is set up by
the Government of India with regional
branches at a few centers which are active in
inter-country adoptions. Such Central
Adoption Research Agency can act as a
clearing house of information in regard to
children available for inter-country adoption
and all applications by foreigners for taking
Indian children in adoption can then be
forwarded by the social or child welfare
agency in the foreign country to such Central
Adoption Resource Agency and the latter can
in its turn forward agencies in the courts.
Every social or child welfare agency taking
children under its care can then be required
to sent to such Central Adoption Resource
Agency the names and particulars of children
under its care who are available for adoption
and the names and particulars of such
children can be entered in a register to be
maintained by such Central Adoption Resource
Agency."
In terms of this Court’s decision in Lakshmi Kant
Pandey case (supra), CARA was formed and it published
"Guidelines for adoption". Under these guidelines every
State has a VCA to co-ordinate and oversees inter-state
adoptions.
It is pointed by Mr. Colin Gonsalves who was requested
to assist in the matter though the intervention application
filed by him on behalf of Parchuri Jamuna was rejected, that
in some States the VCA is a non-governmental organization
(in short ’NGO’) and in some other States the Department of
Women and Child Development. In the State of Andhra
Pradesh, the said Department is VCA. Several guidelines have
been issued from time to time. The Government of India,
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Ministry of Welfare has also issued directions. On the
basis of Lakshmi Kant Pandey case (supra) the Government of
India has issued certain guidelines vide its
ResolutionNo.13-33/85-CH(AC) dated 4th July, 1989.
Subsequently, some clarifictory orders were passed by this
Court on 19th September, 1989, 14th August, 1991, 29th
October, 1991, 14th November, 1991 and 20th November,
1991. A Task Force was constituted on 12th August, 1992
under chairmanship of retired Chief Justice of this Court.
Report was submitted by the Task Force on 28.8.1993. On the
basis of the recommendations made certain guidelines were
also issued by the Ministry of Welfare Resolution dated
29th May, 1995.
In the background of what has been noticed by the
Family Court and the High Court it is crystal clear that the
orders passed do not suffer from any infirmity to warrant
interference. It has been printed out by learned counsel
for the State and Mr. Gonsalves, that the appellant no. 1
has been prosecution for offences punishable under various
provisions of the Indian Penal Code, 1860 (in short’IPC’).
The accusations relate to cheating, manipulation/fabrication
of documents. Some of the functionaries of the appellant
no. 1 have already been convicted while permitting any
organization to keep a child or give him or her in adoption
its credentials are to be minutely scrutinized. It should
be ensured that behind the mask of social service or
upliftment and evil design of child trafficking is not
lurking. It is the duty of the State to ensure a safe roof
over an abandoned child. Keeping in view the welfare of the
child all possible efforts should be made by the State
Governments to explore e possibility of adoption under the
supervision of the designated agency. Keeping in view the
guidelines indicated by this Court in Lakshmi Kant Pandey
case (supra) adoption by foreign parents may in appropriate
cases be permitted.
While making the requisite and prescribed exercise it
has to be kept in mind that child is a precious gift and
merely because he or she for various reasons is abandoned by
the parents that cannot be a reason for further neglect by
the society. It is urged that some account of vehemence by
learned counsel for the appellants that the children homes
run by the State Governments are really no place when a
child is to be placed. They suffer from neglect, proper
care is a myth and a large number of children have lost
their lives or are unable to bear the cruelties meted out.
If the grievances are true, it is a matter of serious
concern. The Central Government and the State Government
would do well to look at these problems with the
humanitarian approach and concern they deserve.
It would be appropriate for them to keep the following
lines from Longfellows "The Children’s Hour" in mind.
"Between the dark and the daylight, when the night is
beginning to lower, comes a pause in the day’s occupations,
that is known as the Children’s Hours"
With the aforesaid observations the appeal is dismissed
with no orders as to costs.
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