Sub-regulation (6) of Regulation 44 undoubtedly seeks
to achieve an important purpose of not parting with
confidential and sensitive information in relation to an
adopted child to third party. The purpose for framing said
sub-regulation, therefore, can easily be appreciated.
However, when the adopted person himself or herself
appoints an attorney to act for and on his / her behalf, such
power of attorney ceases to be a third party and would
therefore not be hit by the limitation contained in subregulation
(6) of Regulation 44. A person who is appointed
as attorney acts for and on behalf of the person so
appointing him and therefore, cannot be considered to be a
third party for the purpose of Regulation 44(6). Subject to
certain safeguards, therefore, we propose to direct the
concerned respondents and in particular SARA to provide
necessary documents and further information as may be
available with it to Ms. Anjali Pawar as a duly constituted
attorney of the petitioner for such purpose.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13670 OF 2018
Beena (Leena) Makhijani Muller Vs The Commissioner,
Department of Women & Child
Development, Maharashtra
CORAM : AKIL KURESHI &
S.J. KATHAWALLA, JJ.
DATE : OCTOBER 9, 2019.
1. Heard learned counsel for the parties for final disposal
of the petition.
2. This petition is filed by one Beena (Leena) Makhijani
Muller who is a citizen of Switzerland. She has been adopted
by her adopting parents who are citizens of Switzerland. The
adoption is stated to have taken place pursuant to a court
decree dated 10.8.1978 passed under Hindu Adoption and
Maintenance Act, 1956. This adoption was facilitated by one
Asha Sadan (an adoption agency situated in Mumbai). Years
later, the petitioner desired to trace her roots and possibly to
trace her biological parents. Her practical difficulty, however,
is that she is the permanent resident of Switzerland and is,
therefore, unable to spend extensive period of time in India
which would be needed for the purpose of visiting various
departments and thereafter to follow the leads if so available
to trace her roots. In order to overcome this difficulty, she
has appointed Ms. Anjali Pawar residing at Flat No. 6,
Satyasainagar, Survey No. 35/11/2, Dhanakwadi, Pune 411
043, Maharashtra and Mr. Arun Dohle residing at Reimserstr
47 52074 Aachen Germany as her power of attorneys. The
power of attorneys are assigned following powers:-
“1. To visit the Departments, Authorities and Institutions who are
involved in my adoption.
2. To sign and send applications to respective departments and
Courts and they can receive replies for those applications.
3. Giving full rights behalf of me to ask questions to respective
authorities as well persons who are involve in my adoption
and get answer for that.
4. To inspect, copy all records and files pertaining to my birth
and adoption and undertake all necessary actions which will
enable me to meet my biological mother and family.
5. To pay all fees, to the State and Central Government
authorities / agencies against whatever information asked for
and to obtain receipt for the same.
6. To initiate or defend any legal proceedings in any court of law,
civil or criminal authority, tribunal, judicial or quasi-judicial,
government, State or Central, or original or appellate
jurisdiction, to withdraw or compromise the same on such
terms as may be deemed fit by the attorney, and to generally
carry the same to its final conclusion.
7. And for such purposes to correspond with any person,
authority, municipal, government, state or central, or any
department thereof, for the achievement of these presents.”
3. Learned counsel for the petitioner submitted that the
State Adoption Resources Authority ('SARA' for short) is
refusing to assist the attorneys or to part with information or
documents in connection with the petitioner's adoption. The
said authority, presumably relies on the Adoption
Regulations 2107 notified by Central Adoption Resource
Authority ('CARA' for short). Regulation 44 thereof pertains
to root search and makes provisions for supply of information
to the adopted child. However, sub-regulation (6) of
Regulation 44 reads as under:-
“(6) A root search by a third party shall not be permitted and the
agencies or authorities concerned shall not make any information
public relating to biological parents, adoptive parents or adopted
child.”
4. Learned counsel for the petitioner submitted that when
the petitioner has given full power of attorney to the said
attorneys to act for and on behalf of the petitioner, reliance
on sub-regulation 6 of Regulation 44 by the authorities is
misplaced.
5. We have heard the learned AGP for SARA and other
respondents.
6. Sub-regulation (6) of Regulation 44 undoubtedly seeks
to achieve an important purpose of not parting with
confidential and sensitive information in relation to an
adopted child to third party. The purpose for framing said
sub-regulation, therefore, can easily be appreciated.
However, when the adopted person himself or herself
appoints an attorney to act for and on his / her behalf, such
power of attorney ceases to be a third party and would
therefore not be hit by the limitation contained in subregulation
(6) of Regulation 44. A person who is appointed
as attorney acts for and on behalf of the person so
appointing him and therefore, cannot be considered to be a
third party for the purpose of Regulation 44(6). Subject to
certain safeguards, therefore, we propose to direct the
concerned respondents and in particular SARA to provide
necessary documents and further information as may be
available with it to Ms. Anjali Pawar as a duly constituted
attorney of the petitioner for such purpose. For the purpose
of present issue, other power of attorney Mr. Arun Dohle
shall not be taken into consideration since fulfilling requests
of two different persons may also cause difficulty for the
respondents.
7. Under these circumstances, the petition is disposed of
with following directions:-
(i) The petitioner shall directly send an affidavit
stating that she has executed the said power of
attorney dated 8.5.2015 in favour of Ms. Anjali
Pawar and that she requests that all necessary
information with respect to her adoption be
provided to the said attorney for which she
consents and upon supply of which, she shall not
raise question of breach of confidentiality.
(ii) Upon receipt of such communication, SARA shall
supply necessary information as may be available
in connection with the adoption of the petitioner
to Ms. Anjali Pawar as her duly constituted
attorney.
8. With the above directions, the petition is disposed of.
[ S.J. KATHAWALLA, J. ] [ AKIL KURESHI, J ]
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