and inter-country adoptions:-
(i) All the concerned Agencies viz RIPA,
Specialized Adoption Agencies, SARA, ARC,
AFAA to scrupulously follow the Guidelines
which have been laid down in 2011.
(ii) RIPA and the Specialized Adoption
Agencies are directed to complete the
Home Study report within a stipulated time
as prescribed under the Rules and the ratio
of 80:20 should be adhered to and
preference should be given to Indian
parents first and if the Indian parents
decline to accept the child in adoption only
thereafter the child may be shown to
foreign parents.
(iii) Though there is no specific number
mentioned in the Guidelines as to the
number of Indian parents to whom the child
should be shown, we are of the view that
within a period of 3/4 weeks, the child
should be shown to as many Indian parents
as possible and, secondly, at a time, the
child should be shown only to one parent
and not multiple number of parents as has
been done in the present case.
(iv) Only if the child is not accepted by
Indian parents and the Adoption Agencies
on account of their experience come to the
conclusion that the child is not likely to be
taken in adoption by Indian parents then, in
that case, it should be shown to foreign
parents.
(v) When the child is shown to the foreign
parents, it should be shown in the list of
priorities which are mentioned in the said
Guidelines viz. Initially it should be shown
to NRI then Overseas Indian Parents etc
and only thereafter to foreigners.
(vi) ARC should give Recommendatory
Letter within five days in respect of the
children with special needs and within 15
days in respect of other children. This
should be strictly adhered to. Noncompliance
of the said Guideline should be
strictly viewed and action if necessary may
be taken against the concerned Authorities,
ARC or SARA who do not follow the said
Schedule. ARC and SARA should work not in
conflict but in coordination with CARA, it
being the Centralized Nodal Agency.
These are some of the further Guidelines which are laid down
by us and which are in consonance with the Rules of 2011.
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9227 OF 2013
Varsha Sanjay Shinde & Anr.
Vs
The Society of Friends of the
Sassoon Hospitals and Others
CORAM: V. M. KANADE &
S.C. GUPTE, JJ.
DATE: 18th October, 2013
Citation;2014(5) ALLMR297
Read original judgment here ;click here
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 have
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 preadoption
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 Counsel appearing on
behalf of the Petitioners.
6. The learned Counsel appearing on behalf of the
Petitioners firstly submitted that the procedure which is
prescribed for in-country adoption has not been followed by
Respondent No.1. Secondly, it is contended that preference
ought to have been given by Respondent No.1 to Indian
parents first, before offering the child in inter-country
adoption. Thirdly, it is submitted that Respondent No.1 and
other such Adoption Agencies are deliberately not giving
preference to Indian parents for giving the child in adoption
because the amount which they are entitled to get as per
guidelines from Indian parents is only Rs 40,000/- and on the
other hand they are entitled to get $ 5000 in the case of
inter-country adoption. It is contended that therefore children
are given in adoption to foreigners illegally and it is contrary
to the guidelines framed by the Central Government. It is
fourthly contended that ratio of 80%:20% that is 80 children
to be given in adoption to Indian parents and 20 to be given
to foreigners is also not being followed. Fifthly, it is
submitted that the home study report which is to be given in
two months is not given in time and during this period
children are shown to foreigners who are permitted to jump
the queue. It is contended that the Petitioners were
registered in 2012 and the Intervenors were permitted to
jump the queue and decision was taken to give the child in
adoption by Respondent No.1 to the foreign couple. It is
sixthly contended that signatures of the Petitioners were
obtained on certain documents, contents of which were not
shown to the Petitioners and subsequently Respondent No.1
on the basis of the said documents have tried to contend
that the fact that the baby girl was shown to foreign couple
prior in point of time to the Petitioner is sought to be created
on the basis of the said documents. It is contended that, in
fact, Respondent No.1 had never shown the child to foreign
couple prior to the Petitioners, as contended. It is seventhly
contended that the CARA had given no objection without
obtaining the NOC from Adoption Recommendation
Committee (ARC). Eightly, it is contended that despite
directions given by SARA from time to time, Respondent No.1
and other Adoption Agencies are not showing the children to
Indian parents. It is then contended that though there was a
list of Indian parents who were registered with Respondent
No.1, allegedly after three parents informed Respondent
No.1 that they were not interested in the child, without
showing the child to other Indian parents, Respondent No.1
had immediately, after refusal by three Indian parents, had
shown the child to the foreign couple.
7. On the other hand, the learned Counsel appearing on
behalf of Respondent No.1 has vehemently opposed the said
submissions. She has stated that baby Isha was born on
15/08/2012 and was declared “legally free for adoption” on
03/04/2012 and was shown to three Indian families who did
not accept her due to her health concerns since she was a
premature baby. It is submitted that if within 3/4 weeks,
child is not taken in adoption by Indian parents, it should
be regarded as available for inter-country adoption in view
of the guide-lines laid down by the Apex Court in Lakshmi
Kant Pandey vs. Union of India1. It is then submitted that
Mysore Family which is a foreign couple of Indian origin
residing in USA was registered for adoption with the US
based adoption agency (AFAA) in March, 2010. The Home
Study Report (HSR) was conducted by AFAA and was
submitted to CARA in February, 2011, which recommended
that the Mysore Family was eligible to adopt the child
between 0-4 years. The composite age of the PAPs at the
time of registration was below 90 years as per Guideline No.
6(3) of the Guidelines, 2011. The Screening Committee of
CARA under Guideline 29(2) examined prima facie suitability
of PAP-Mysore Family and also identified the RIPA, i.e,
Respondent No.1 to whom the dossier of the PAP-Mysore
Family was to be forwarded. It is submitted that the age
criteria was also examined by CARA and, thereafter,
Respondent No.1 referred the child to Mysore Family on
15/05/2013 at which point of time the child was already
1 AIR 1986 SC 272 at page 280
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rejected by three Indian families. On 17/05/2013, baby Isha
was accepted by Mysore Family and all necessary formalities
were initiated. The said family visited Isha in India on 24th
and 25th June, 2013. Respondent No.1 submitted the dossier
of Mysore Family to Respondent No.2, i.e., SARA for issuing
Recommendation Certificate by Respondent No.4, i.e, ARC on
24/05/2013. The contention of the learned Counsel
appearing on behalf of Respondent No.1 is that the
Recommendation Certificate is to be issued within a period of
15 days as per the Schedule VIII(h) of the Guidelines. Till
today, the said Certificate has not been issued. The
grievance of Respondent No.1 is that SARA, contrary to the
mandate of the Guidelines, is directing Respondent No.1 to
show babies which were already accepted by families to
other couples such as the Petitioners. The grievance of
Respondent No.1 is that SARA wrote a letter to Respondent
No.1 dated 29/07/2013, directing them to show baby Isha to
Petitioners. It is submitted that under the Guideline 18(4)
and (5), SARA cannot direct RIPA to refer the children to any
specific parent as it was done in the present case. It is
submitted that by letter dated 24/04/2013, CARA had
informed the Maharashtra Stage Agencies that the adoption
ratio of 80:20 has been complied with by Respondent No.1.
8. The learned Counsel appearing on behalf of Respondent
Interveners, i.e., Mysore Family submitted that the child had
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been accepted by them much prior to the child being shown
to the Petitioners and they are entitled to get the child and
the Petitioners are not entitled to seek a writ of mandamus
directing the Respondents to give the child in adoption to
them. The learned Counsel for the Interveners invited my
attention to various provisions of the Guidelines of 2011. It is
submitted that role of ARC and SARA is very limited and they
are supposed to issue the Recommendation Certificate in any
case within two weeks, which had not been done in the
present case and that there was conflict between the SARA
and CARA that is the State and Central Agency. It is
submitted that SARA and ARC were acting beyond their
jurisdiction and, as a result, the entire process of adoption
was unnecessarily delayed to the detriment of welfare of the
child who was kept in the shelter home.
9. The learned Counsel appearing on behalf of ARC
vehemently urged that ARC was within its rights to make an
investigation and see whether ratio of 80:20 was maintained
or not. Various submissions have been made by the learned
Counsel appearing on behalf of ARC to show that Respondent
No.1 had, in fact, violated the guidelines and had given
preference to foreign couples instead of Indian parents.
The learned Counsel appearing on behalf of SARA also
reiterated the submissions made by the learned Counsel
appearing on behalf of ARC and supported the case of the
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Petitioners.
10. The learned Counsel appearing on behalf of the
Interveners viz Federation of Adoption Agencies submitted
that number of difficulties are experienced by the Adoption
Agencies on account of uncooperative attitude of SARA and
ARC. It is submitted that even though Recommendation
Certificate has to be issued in any case within two weeks, for
months together and some times for more than six months
and some times even for one year such Recommendation
Certificate is not issued, which results in causing inordinate
delay for giving the child either in in-country adoption to
Indian families or in inter-country adoption to foreign
couples. It is submitted that this was a result of lack of
understanding on the part of SARA and ARC about their role
which had to be played by them in the process of adoption.
It is submitted that number of Indian as well as Foreign
Couples expressed their anguish and displeasure on account
of the attitude of SARA and ARC.
11. The learned Counsel appearing on behalf of Respondent
No.3 – Central Adoption Resource Authority (CARA)
submitted that three affidavits have been filed by
Respondent No.3. The first affidavit dated 8/10/2013 is
filed in response to the affidavit filed by Respondent No.2 –
State Adoption Resource Agency (SARA). The second
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additional affidavit of the same date is filed in response to
the affidavit filed by Respondent No.4 – Adoption
Recommendation Committee (ARC) and a third additional
affidavit also of the same date is filed in response to the
affidavit filed by Respondent No.2 – SARA. In these three
affidavits filed by Central Nodal Agency viz CARA it is
contended that the Adoption Recommendation Committee
(ARC) or the State Adoption Resource Agency (SARA) has
failed to comply with para 31(11) of the said Guidelines to
expeditiously carry out their assigned responsibilities as
provided in the Guidelines. It is further stated that queries
raised by ARC are not in accordance with Schedule-X, except
the document sought at point 'd.' It is further stated that
rejection letters from Indian adoptive parents within country
are not required under the Guidelines. It is further stated
that requirements under para 3(b) and 8(1) of the Guidelines
have been complied with in the proposal for the adoption of
the child by Mr. Rajkumar Mysore and Ms. Rachel Mathew
since the child has been shown to three Indian families living
in India. It is further stated that the proposed adoptive
parents are Overseas Citizens of India who share same
cultural, racial, linguistic similarities as that of the proposed
adoptive child.
12. We have heard the learned Counsel appearing on behalf
of the Petitioners as well as the learned Counsel appearing
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on behalf of Respondents and the learned Counsel for the
Interveners.
13. Before we advert to the rival submissions, it would be
necessary to give a brief background about the development
of law of adoption. The Apex Court in the case of Lakshmi
Kant Pandey (supra) took cognizance of the complaint made
by the Petitioner in the said case, who had informed the Apex
Court that no procedure was laid down in respect of the
children who were to be given in adoption and, secondly, the
existing Act viz Guardians and Wards Act, 1890 did not have
sufficient provisions to ensure the welfare of the children who
were given in adoption. The Apex Court in the said landmark
judgment, for the first time, laid down the guidelines which
were to be followed by various agencies in order to ensure
that proper care was exercised before giving the child either
in in-country adoption or inter-country adoption. Thereafter,
Hague Convention on Inter-country Adoption was signed on
09/01/2003 and ratified on 06/06/2003 and it came into force
with effect from 01/10/2003 in India. The Hague Convention
envisages compliance of international obligation in terms of
protection of children, best interests of the child, intercountry
adoption and further observes that inter-country
adoption shall be subsidiary to domestic adoption,
prevention of financial or other gain in the process of intercountry
adoption and cooperation (multilateral & bilateral).
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Prior to the adoption of Hague Convention Treaty, the
existing Act was changed and the Juvenile Justice (Care and
Protection of Children) Act, 2000 was passed and Rules were
framed. After sometime, it was realized that the Rules were
not adequate and did not envisage various situations which
would arise in the process of adoption and, therefore, the
Guidelines of 2006 were framed. In these Guidelines also it
was noticed that there were some grey areas and there was
a lack of clarity on certain aspects and, therefore, new
Guidelines were brought into force dated 24/06/2011. These
Guidelines were framed in pursuance of the powers given by
sub-section (3) of section 41 of the said Act, 2000 and it was
expressly stated that they were in supersession of the
Guidelines for in-country Adoption, 2004 and the Guidelines
for Adoption from India, 2006. These Guidelines have a
statutory force of law in view of the judgment of the Apex
Court in the case of Lakshmi Kant Pandey (supra) and,
secondly, since they have been framed in pursuance of the
power given by sub-section (3) of section 41 of the said Act,
2000. These Guidelines therefore are in addition to the
provisions of the Act and Rules and have statutory force.
Perusal of the Guidelines indicates the time frame and the
time schedule which has to be adhered to for completion of
the adoption process. The scope of power to be exercised by
CARA which is the Central Nodal Agency, SARA which is the
State Agency and ARC which issues Recommendation
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Certificate has been enumerated. Perusal of these
Guidelines clearly indicate that SARA and ARC play a
secondary role and the primary Nodal agency in respect of
inter-country adoption is CARA in whose supervision SARA
and ARC are supposed to function.
14. It will be necessary to briefly take into consideration the
Guidelines governing adoption of children which have come
into force with effect from 24/06/2011. The said Guidelines
have been framed by the Central Adoption Resource
Authority (CARA) to provide for the regulation of adoption of
orphan, abandoned or surrendered children. Since these
Guidelines have been framed pursuant to the provisions of
sub-section (3) of Section 41 of the said Act, 2000 and
judgment of the Apex Court in L.K. Pandey vs. Union of India
in WP No.1171 of 1982, the UN Convention on the Rights of
the Child, 1989 and the Hague Convention on Protection of
Children and Cooperation in respect of Inter-country
Adoption, 1993, the said Guidelines have statutory force.
In Chapter-I, of the said Guidelines, various terms have
been defined in Rule 2. Rule 2(e) defines “AFAA” or
“Authorised Foreign Adoption Agency” which is a Foreign
Social or Child Welfare Agency that is authorized by CARA for
sponsoring the application of Prospective NRI or OCI or PIO or
Foreign Adoptive Parents for Adoption of an Indian child.
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Rule 2(f) defines “ARC” which means Adoption
Recommendation Committee constituted by the State
Government. Rule 2(h) defines “CARA” which means the
Central Adoption Resource Authority. Rule 2(aa) defines the
term Recognised Indian Placement Agency (RIPA) which is an
Agency recognized by CARA for placing children in Intercountry
adoption. Rule 2(zb) defines “SAA” and it means the
Specialised Adoption Agency which includes Recognised
Indian Placement Agency (RIPA) and Licensed Adoption
Placement Agency (LAPA). Rule 2(zc) defines “SARA” which
means State Adoption Resource Agency.
Rule 3 of the said Guidelines lays down fundamental
principles governing adoption which reads as under:-
“3. Fundamental principles governing
adoption. - The following fundamental
principles shall govern adoptions of children
from India, namely:-
(a) the child's best interest shall be of prime
importance while deciding any placement;
(b) preference shall be given to place the
child in adoption within the country;
(c) adoption of children shall be guided by
set procedures and in a time bound manner;
(d) no one shall derive any gain, whether
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financial or otherwise, through adoption.”
Rule 7 lays down the procedure for adoption which
provides that Prospective Adoptive Parents (PAPs) should
register themselves with Government Recognized Adoption
Agency. In respect of foreign adoption, PAPs residing abroad
can adopt children through CARA and an authorised Agency
known as AFAA. After registration, PAPs have to follow the
adoption procedure as provided in the said Guidelines as per
the details given in CARA's Website.
Rule 8(5) prescribes priorities for rehabilitation of a child
and it is mentioned that preference has to be given for
placing a child in in-country adoption and the ratio of incountry
adoption to inter-country adoption shall be 80:20 of
total adoptions processed annually by a RIPA, excluding
special needs children.
Rule 8(6) mentions the order of priority which is to be
followed in cases of inter-country adoptions, which is as
under:-
(i) Non Resident Indian (NRI)
(ii) Overseas Citizen of India (OCI)
(iii) Persons of Indian Origin (PIO)
(iv) Foreign Nationals
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Chapter II of the said Guidelines lays down the process
that has to be followed before adoption. Chapter 3 lays
down the guidelines regarding adoption process.
Rule 17 reads as under:-
“17. Adoption authorities and agencies for
in-country Adoption. - The authorities or
agencies involved in in-country adoption
process shall be-
(a) The Court of Competent Jurisdiction
who can pass Order for Adoption;
(b) Central Adoption Resource Authority
(CARA)
(c) State Adoption Resource Agency
(SARA) or Adoption Coordinating
Agency (ACA) and
(d) Specialised Adoption Agency
(SAA).”
Rule 20 lays down the procedure which has to be
followed in respect of Home Study and other requirements.
Sub-rule 2 of Rule 20 states that Home Study of the PAP(s)
shall be conducted within a maximum period of two months
from the date of acceptance of registration. Rule 21 speaks
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about Referral and Acceptance. Rule 26 prescribes the
procedure for Inter-country Adoption as per the Hague
Convention on Inter-country Adoption and prescribes the
authorities and agencies involved in Inter-country adoption
process. Rule 29 speaks about identification of RIPA by
CARA and sub-rule (7) of Rule 29 in terms states that the
RIPA shall not entertain any application received directly
from any AFAA or CA or PAPs from out of India, for adoption
of an Indian child. Rule 31 speaks about power of the State
Government to constitute a Committee to be known as the
Adoption Recommendation Committee (ARC) to scrutinize
and issue a Recommendation Certificate for placement of a
child in inter-country adoption.
Rule 31(11) and 31(12) are relevant. The said Rules
read as under:-
“31(11) The SARA or ACA, as the case may be,
shall ensure that the Recommendation Certificate
is issued expeditiously within a period of 15 days
from date of receipt of the dossier.
31(12) In case of special needs child, the SARA or
the ACA, as the case may be should issue the
Recommendation Certificate within a period of 15
days from date of receipt of the dossier.”
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From the above two Rules, it is clear that SARA or ARC have
to issue Recommendation Certificate within a period of 15
days from the receipt of dossier and in case of a special
needs child, it has to be issued within 5 days.
Rule 31(15) prescribes that ARC should satisfy itself
about the suitability of the PAPs vis-a-vis the child proposed
for adoption. Rule 31(16) states that the Committee shall
also verify the documents filed by the RIPA and ensure that
procedures have been correctly followed by the RIPA. Rule
31(17) lays down that in case, at any stage, SARA or ACA or
ARC is not satisfied with the documents produced for
obtaining recommendation certificate, it shall conduct
appropriate investigation before disposing of the matter.
Rule 32(4) speaks about issuance of No Objection
Certificate by CARA.
Chapter IV of the said Guidelines speaks about post
adoption process. Chapter V speaks about Recognition and
Authorization. Chapter VI speaks about Role and Functions
of Authorities. Rule 77 in terms states that CARA shall
function as a nodal body on adoption matters in the country
and it has to perform the functions which are mentioned in
the said Rule. Relevant functions are mentioned in clauses
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(a), (b) and (c) of the said Rule 77. The role of State
Adoption Resource Agency (SARA) has been laid down in
Rule 80. Rule 80(1), reads as under:-
“80(1) For the proper implementation of
these Guidelines every State Government is
required to set up the State Adoption
Resource Agency (SARA) to act as a nodal
body within the State to coordinate, monitor
and develop the work of adoption and noninstitutional
care in coordination with CARA
(Emphasis supplied)
Rule 80(2)(d), (g) & (n) read as under:-
“(80)(2) The State Adoption Resource
Agency shall perform the following
functions:-
(a).....to (c ).......
(d) promote and regulate in-country and
inter-country adoptions in coordination with
CARA.
(e)..........
(f)...........
(g) facilitate inter-country adoption of
children in Specialised Adoption Agencies for
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whom in-country adoption efforts have failed
in accordance with these Guidelines and to
ensure their early deinstitutionalisation;
(h)....... to (m).......
(n) carry out inspections of Specialised
Adoption Agencies at least once a year and
carry out verifications as stipulated for the
inspection team in these Guidelines.
(o)...... to (w).........”
Rule 98 of the said Guidelines speaks about the role of
Authorized Foreign Adoption Agency (AFAA). Rule 107 lays
down the administration expenses which are to be incurred
by PAPs in the process of adoption. Rule 107 reads as
under:-
“107. Adoption Expenses. - The PAPs are
required to bear following administration
expenses in the process of adoption.-
(a) the registration expenses for PAPs for incountry
adoption, is Rs 1,000. In addition to it,
they shall be required to pay Rs 5000 for the
Home Study Report and post adoption follow-up
services.
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(b) the PAPs shall be required to contribute
towards the Child Care Corpus (CCC), maintained
by the agency from where they are adopting the
child. This amount shall also cover all expenses
incurred to finalize the adoption. However, the
adoption agency may decide to waive off or
reduce this amount in exceptional cases. The
amount to be contributed by PAPs is as under:-
(i) Amount to be contributed towards CCC in
case of in-country adoptions : Rs 40,000/-
(ii) Amount to be contributed towards CCC in
case of Inter-country adoptions : US $ 5000/-
(c ) The modalities for payment of the amounts is
mentioned in Schedule-XVI attached to the
Guidelines.
(d) The PAPs or adoptive parents shall not
contribute more than the amount specified in this
paragraph and shall also not make any donation,
whether in kind or cash to the agency from where
they propose to adopt or have adopted a child.”
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Lastly Rule 108 of the said Guidelines speaks about
Relaxation and Interpretation of the Guidelines. Rule 108
reads as under:-
“108. Relaxation and Interpretation of the
Guidelines.- (1) These Guidelines are issued
having regard to the provisions of the existing
law and for the interpretation, the relevant law
should be referred to.
(2) In case of ambiguity or any dispute, the
power to interpret these Guidelines vests with
CARA.
(3) The power to relax any provision of these
Guidelines in respect of a case or class or classes
or category of cases vests with CARA.
Provided that no relaxation or dispensation
shall be given by CARA without recording
appropriate reasons for the same.”
Rule 107, therefore, in terms speaks about the amounts
which have to be contributed towards the Child Care Corpus
in respect of in-country adoption which is Rs 40,000/- and
amounts to be contributed towards the Child Care Corpus
which is US $ 5000/-. Thereafter, Schedules have been given
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in which further detailed procedure which has to be followed
and the Registers that have to be maintained has been
stated.
So far as the Adoption Recommendation Committee is
concerned, its role and functions are referred to in Rule 31(1)
which is to scrutinize and issue a Recommendation
Certificate for placement of a child in inter-country adoption.
Rule 31(9) states that the SARA shall receive the dossiers of
cases for inter-country adoptions from the RIPA and put up
the same before the ARC for issue of Recommendation
Certificate. Rule 31(11) speaks about the Recommendation
Certificate to be expeditiously issued within a period of 15
days from the date of receipt of the dossier and Rule 31(12)
speaks about the Recommendation Certificate to be given
within 5 days in case of a special needs child. Rule 31(14)
mentions that in case of siblings and older children, ARC has
to ensure that there is no waiting Indian PAPs within the
region for such child or children. Rule 31(15) speaks about
suitability of the PAPs vis-a-vis the child proposed for
adoption. Rule 31(16) speaks about verification of the
documents filed by the RIPA and ensure that procedures
have been correctly followed by the RIPA. Rule 31(18)
speaks about issuance of Recommendation Certificate and
Guideline 102 states that each dossier for in-country
adoption should be scrutinized before issuing the
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Recommendation Certificate.
15. From the above Guidelines, it is clear that
comprehensive Guidelines have been issued and earlier
Guidelines of 2004 and 2006 have been repealed and care
has been taken to ensure that the said Guidelines are in
conformity with the Hague Convention and also as per the
law laid down by the Apex Court in Lakhsmi Kant Pandey's
case (supra).
16. In the Guidelines, the role and functions of each Agency
viz CARA, SARA and other Agencies have been clearly
defined. However, from the facts which have come on
record, it appears that there is some conflict between SARA,
ARC on the on side and CARA on the other. It has to be
noted that CARA is ultimately a Central Nodal Adoption
Agency particularly in case of inter-country adoptions and
both, SARA & ARC have to work in coordination with CARA.
The ultimate authority to issue No Objection Certificate is
given to CARA and the ARC is only supposed to scrutinize the
various applications in order to ensure that procedure is
properly followed.
17. From the three affidavits which have been filed in the
present case by CARA, it can be seen that though various
letters written from time to time by CARA authorities, neither
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SARA nor ARC have even bothered to give reply to these
letters and have been functioning as if it is a sole authority
within the State which is competent to grant the final
permission to give children in adoption. It is possible that
SARA and ARC authorities may have acted with good
intention of ensuring that priorities of in-country and intercountry
adoptions which have been laid down in the Rules
have been properly followed. However, that does not give
these authorities a power to stall the process of adoption and
cause unreasonable delay in completion of the adoption
process. The purpose behind laying down these Guidelines is
to ensure that process of adoption is completed expeditiously
and that all these authorities have to ensure and keep in
mind welfare of the child. Long term traumatic effects on the
child which is brought up in Institutions are quite well known
and, therefore, it is necessary to ensure that when the child
is brought to the shelter home, it should be given in
adoption as quickly as possible. This can be seen from time
limit and time frame which is prescribed under the Rules.
The ARC is expected to give Recommendation Certificate
within 15 days and within 5 days in respect of the children
requiring special care. It is not laid down under the
Guidelines as to how long the RIPA or Specialized Agency has
to wait after in-country PAPs refused to take the child in
adoption and then refer it for inter-country adoption.
Therefore, there has to be a proper coordination between
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SARA and CARA. It has to be noted that CARA is a nodal
Agency which refers foreign couple in order of priority
referred to in the Rules and only then RIPA can show the
child to the foreign couple. In the present case, the
contention of the learned Counsel appearing on behalf of the
Petitioners that no efforts were made by Respondent No.1 for
giving the child in adoption to Indian parents is without any
substance. In the affidavit-in-reply filed by Respondent No.1,
they have mentioned that the child was shown to three
Indian parents before it was shown to the foreign couple. It
is distressing to note that after the foreign couple showed
their acceptance to adopt the child, in spite of that SARA and
ARC Respondent Nos. 2 and 4 respectively had insisted that
Respondent No.1 should show the child and other two girls to
Indian parents on the same day. This act on the part of SARA
and ARC is clearly contrary to the Guidelines and such
directions should not be given to RIPA and Specialized
Adoption Agencies in future. There is always an inherent
danger of all the parents accepting the child simultaneously
if they are shown on the same day and same time. Though
SARA and ARC have been authorized to scrutinize the
documents, they do not have an authority to unnecessarily
delay the process of adoption. In the present case, though
more than six months have passed, no Recommendation
Certificate was issued by the ARC and no explanation has
been given by ARC why this could not be done. We,
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therefore, direct the ARC to scrupulously adhere to the time
frame mentioned in the Guidelines and if certain additional
documents are called and if it feels that recommendation
cannot be given then it should record its reasons for doing
so. Large number of complaints have been received by
CARA from both, in-country PAPs and also from foreign
couples expressing their displeasure over the role played by
ARC and by SARA. We hope and expect that, in future, no
such complaints are received and process of adoption is not
delayed.
18. In the present case, we are sorry to observe that there
appears to be a conflict between SARA, ARC on the one hand
and the CARA and RIPA on the other hand and this has
resulted in creating bottle-neck in the process of adoption. It
is possible that SARA and ARC bonafidedly believed that they
have power and jurisdiction over CARA Authorities which,
unfortunately, is a misconceived perception and have
thwarted the smooth functioning of inter-country adoption.
Numerous e-mails which have been sent to CARA by
dissatisfied parents clearly indicate that both in-country and
inter-country parents have shown their immense displeasure
over the attitude of ARC and SARA. All the parents have
been unanimous that ARC and SARA have acted as stumbling
block in this process and have refused to cooperate with the
CARA and have not given Recommendatory Letter which
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they are supposed to give within 15 days. These complaints
indicate that ARC and SARA have been asking them to
comply with various formalities which are not supposed to be
complied by them under the new Guidelines and ARC and
SARA have no authority in law to demand this information
from the parents. We, therefore, propose to lay down the
Guidelines after we deal with the submissions made by the
learned Counsel appearing on behalf of the Petitioner and
Respondent No.1.
19. In our view, there is no substance in the submissions
made by the learned Counsel appearing on behalf of the
Petitioners. The documents on record clearly establish that
Overseas Indian Couple had already approved the child in
May 2013. The child having been approved by them, there
was no question of showing this child again to Indian parents.
However, SARA and ARC had directed Respondent No.1 to
show three children to Indian Couple simultaneously, which is
contrary to the Guidelines of 2011. Even when this child was
shown to the Petitioners, they were informed that the child
had been already approved by the foreign couple and,
therefore, without prejudice to the rights of the Couple which
had approved the child, the child was being shown on
account of insistence of SARA and ARC. Petitioners have in
terms signed the documents, accepting this position. During
the course of arguments, initially, it was urged that the said
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signature was taken in duress since the Petitioners had no
other option but to sign the said letter. However,
Respondent No.1 has produced on record e-mail records
which indicate that this fact was made known to the
Petitioners and they had, in terms, accepted this fact which is
evident from the contents of the said e-mail letter. The
submission made by the learned Counsel appearing on
behalf of Respondent No.1, therefore, has to be accepted
that SARA and ARC were unnecessarily meddling with the
process of adoption and had acted arbitrarily and their
conduct was in clear violation of the Guidelines which had
been laid down in 2011.
20. In our view once the child had been shown to Overseas
Indians and approved by them on 25/05/2013, the child could
not have been shown to the Petitioners or to other Indian
parents and, therefore, the Petitioners cannot claim any right
or priority to get the child in adoption merely because they
are Indian parents and that preference should be given to
Indian parents over Overseas Indians or foreign couples.
21. The learned Counsel appearing on behalf of the
Petitioners has vehemently argued that Respondent No.1 had
acted with malafide intention to earn more money by giving
children in adoption to foreign couples rather than Indian
Couples on account of disparity of the amount received by
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them from Indian parents and foreign couples. It is also
urged that 80:20 ratio has not been followed in respect of incountry
and inter-country adoption. It is also urged that
combined age of the foreign couple was more than 90 years.
Several allegations have been made against Respondent
No.1 and 2.
22. We are satisfied that the procedure which is required to
be followed by AFAA, CARA and referal by CARA to
Respondent No.1 has been scrupulously followed and there is
absolutely no infirmity in the said procedure and the present
Petition appears to have been filed on account of
misconceived notions and on account of suspicion rather
than concrete material against Respondent No.1. The
material on record indicates that the ratio of 80:20 has been
scrupulously followed by Respondent No.1 and 2. The
combined age of Overseas Parents on the date of the
reference that is in March 2010 was 90 years and on account
of No Objection Certificate given by CARA, assuming that as
of today age of the said Couple is slightly above 90 years,
the said increase in age has been relaxed by CARA on
account of the power vested in it to grant relaxation of
condition under Rule 108. So far as payment received by
Respondent No.1 and other adoption agencies are
concerned, these fees have been fixed by Guidelines
themselves and that is on account of expenditure involved in
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in-country and inter-country adoptions. It, therefore, cannot
be said that Respondent No.1, atleast in this case, on
account of financial gain had given the child Isha in adoption
to the Interveners – Mysore Family.
23. We express our displeasure over the manner in which
the SARA and ARC have functioned in the present case. Till
today, ARC has not given a Letter of Recommendation which
has to be given within 15 days and even though more than 6
months have passed the said Letter has not been given. In
the peculiar facts and circumstances of the present case,
therefore, in our view, it will be deemed that such permission
has been granted by ARC. In any case, we direct the ARC to
issue a Letter of Recommendation within two weeks from
today.
24. In our view, there is no substance in the submissions
made by the learned Counsel appearing on behalf of the
Petitioners.
25. Petition is dismissed.
26. We direct the CARA to comply with the formalities of
adoption within six weeks from today in favour of the
Interveners – Mysore Family. We are of the view, however,
that Petitioners should not be deprived of getting the child in
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adoption and we, therefore, direct Respondent No.1 and
Interveners - Federation of Adoption Agencies in Civil
Application No.2582 of 2013 and CARA to ensure that within
six weeks, the Petitioners are shown another child. We direct
SARA and ARC to issue Recommendatory Letter on the basis
of Home Study Report in favour of the Petitioner.
Respondent No.1 or any other Agency through whom the
new child is shown to the Petitioners should also complete
the Home Study Report within the stipulated period as
prescribed under the Rules.
27. Though the main issue involved in the Petition is
disposed of, we would like to keep this Petition pending in
order to see the compliance of the directions given by this
Court to Respondent No.1, CARA, SARA and ARC, firstly in
respect of giving the child Isha in adoption to Mysore Family
and, secondly, to ensure that the Petitioners also get the
child in adoption expeditiously.
28. We propose to lay down the following guidelines for incountry
and inter-country adoptions:-
(i) All the concerned Agencies viz RIPA,
Specialized Adoption Agencies, SARA, ARC,
AFAA to scrupulously follow the Guidelines
which have been laid down in 2011.
(ii) RIPA and the Specialized Adoption
Agencies are directed to complete the
Home Study report within a stipulated time
as prescribed under the Rules and the ratio
of 80:20 should be adhered to and
preference should be given to Indian
parents first and if the Indian parents
decline to accept the child in adoption only
thereafter the child may be shown to
foreign parents.
(iii) Though there is no specific number
mentioned in the Guidelines as to the
number of Indian parents to whom the child
should be shown, we are of the view that
within a period of 3/4 weeks, the child
should be shown to as many Indian parents
as possible and, secondly, at a time, the
child should be shown only to one parent
and not multiple number of parents as has
been done in the present case.
(iv) Only if the child is not accepted by
Indian parents and the Adoption Agencies
on account of their experience come to the
conclusion that the child is not likely to be
taken in adoption by Indian parents then, in
that case, it should be shown to foreign
parents.
(v) When the child is shown to the foreign
parents, it should be shown in the list of
priorities which are mentioned in the said
Guidelines viz. Initially it should be shown
to NRI then Overseas Indian Parents etc
and only thereafter to foreigners.
(vi) ARC should give Recommendatory
Letter within five days in respect of the
children with special needs and within 15
days in respect of other children. This
should be strictly adhered to. Noncompliance
of the said Guideline should be
strictly viewed and action if necessary may
be taken against the concerned Authorities,
ARC or SARA who do not follow the said
Schedule. ARC and SARA should work not in
conflict but in coordination with CARA, it
being the Centralized Nodal Agency.
These are some of the further Guidelines which are laid down
by us and which are in consonance with the Rules of 2011.
29. With these directions Petition is disposed. Civil
Application No.2582 of 2013 is also disposed of.
30. Matter be placed on board for directions on 18th
November, 2013 for compliance of the directions.
(S.C. GUPTE, J.) (V.M. KANADE, J.)
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