Holy Cross Home For Babies vs Ravikiran Abraham Barigala

Publication date: 17 January 2018

. A procedural question has been raised in this Foreign Adoption Petition. The question involves the legality, as also of advisability, of the usual requirement insisted upon by the adoption court for (i) investment by the proposed adopters in the name of, or for the benefit of, the child to be adopted and also (ii) placing of a deposit with the Prothonotary and Senior Master in Priya 2 903 fap 59-17 with jo 259-17 in fap 59-17-o lieu of a bond so as to ensure compliance with the directions of the court. There has also been a pending representation made to this court by Central Adoption Resource Authority (CARA) in connection with another matter, where for non-deposit of bond money of Rs.60,000/- as per the directions in the Judges Order, certified copy of the Judges Order allowing adoption was not issued by the Registry. By this representation, CARA has requested the court not to insist on any bond money or investment in the name of the child. Though this issue was earlier considered by this court in its order dated 29 October 2010 in Foreign Adoption Petition No.93 of 2010 after hearing CARA, I have thought it fit to have a relook at this issue, in the light of the notification issued by the Central Government on 4 January 2017, notifying Adoption Regulations, 2017. These Regulations inter alia mandate that adoptive parents shall not be asked in the adoption order to execute any bond or make any investment in the name of the child. The matter was accordingly notified on the board calling upon interested parties to make submissions, if they so desired. A special notice was also issued to CARA for making its submissions on the issue. No party has appeared in response to this notice and Priya 3 903 fap 59-17 with jo 259-17 in fap 59-17-o CARA has also not chosen to make appearance or present any submissions before the court. I have heard Mr. Rakesh Kapoor, learned counsel for the Petitioner and Mr. Vishal Kanade, learned counsel appointed as Amicus Curiae in the matter. This order disposes of the particular issue raised in the matter. By a separate order, the foreign adoption petition is allowed.

2. As a matter of practice, at the time of allowing adoption petitions, both Indian and foreign, this court has been directing adoptive parents to deposit monies in the name of the minors in India for adoptive parents from India and in their respective countries for non-resident Indian parents living abroad or foreign nationals. This court has also been directing deposit of bond money in the court by adoptive parents for ensuring compliance with various directions passed in the orders allowing adoption. This practice can be traced to the celebrated case of Laxmi Kant Pandey Vs. Union of India1, where the Supreme Court extensively laid down the principles, parameters and norms to be followed in cases of inter-country adoptions, where Indian 1 (1984)2 Supreme Court Cases 244 Priya 4 903 fap 59-17 with jo 259-17 in fap 59-17-o children were adopted by foreigners living abroad. These directions were based on a Public Interest Petition complaining of malpractices and trafficking in children in the matter of such inter- country adoptions. The Court was inter alia of the view that in the circumstances which obtained when the Public Interest Petition was considered by the Court, it was imperative to introduce a condition in the order that the foreigner, who is appointed guardian of the minor, shall make a proper provision by way of either a deposit or a bond or otherwise to enable the child to be repatriated to India should it become necessary for any reason.

3. The matter was thereafter considered by a learned Single Judge of this Court in Foreign Adoption Petition No.254 of 2010. The Petitioner had in that case applied for adoption of an Indian female child of four and half years. The proposed adopters were Norwegian nationals. The learned Single Judge was of the view that since the minor was required to be sent out of the jurisdiction of this court, and in fact, out of this county, pursuant to the adoption, the welfare of the child was of prime concern. The learned Judge observed that experience had shown that in certain Priya 5 903 fap 59-17 with jo 259-17 in fap 59-17-o circumstances need for security of a child had arisen; in many cases follow-up particulars which were required to be sent by adoptive parents in foreign countries were delayed or not sent at all. The court then referred to the directions of the Supreme Court in the case of Laxmi Kant Pandey (supra) providing for proper provisions to be made by way of deposit or bond or otherwise to enable repatriation of the child to India, should it become necessary for any reason. The learned Judge then noticed various incidents brought to the notice of the court showing that in certain cases, bonds insisted upon by the courts in this behalf had been breached and that it continued to cause needless avoidable administrative and clerical work in calling for bonds and enforcing them. The learned Judge was of the view that in the circumstances, directions for deposit of an amount equivalent to the amount of the bond by adoptive parents for ensuring compliance on their part of the undertakings given to the court were in order; the amount deposited and invested could be resent/ returned with accrued interest later. The learned Judge also considered it reasonable to require the proposed adopters to invest some amount in the country of the adoptive parents towards Priya 6 903 fap 59-17 with jo 259-17 in fap 59-17-o security for the child, noting that in most cases a sum equivalent to Rs.2,00,000/- would be adequate and appropriate for such security. This was to be retained until the child attained the age of majority. The learned Judge noted that this amount could be, and had been, waived in appropriate cases, if the adoptive parents were not in easy circumstances or overburdened with responsibilities of a special needs' child; that in deciding these matters the court had always exercised its discretion on a case by case basis. In dealing with CARA's objection to the discretion of the court in requiring such security, the learned Judge observed that various post-adoption obligations and responsibilities of the agencies as well as the parents did call for a safeguard for their due execution. The learned Judge observed that in some rare cases, the security of the child might be compromised in cases of disruption in the family, abuse of the child, etc. and for alternative placement of the child in these circumstances, both foreign and Indian agencies abroad might require funds for safeguarding and protecting the interest of the child and looking after management, education and welfare of the child until an alternative placement was found for the child. The Court was also of the view that a Priya 7 903 fap 59-17 with jo 259-17 in fap 59-17-o modest amount, if invested in the name of the child for its benefit and use as and when it attained majority, would grant a sense of independence to the child and also relieve the burden of the parents at the time of the child's need to plough back the investment. The learned Judge, therefore, saw no reason for the court not to direct in its discretion investment of some reasonable and modest amount in the name of the child. For all these reasons, the learned judge rejected the request of CARA not to insist upon deposit of Rs.60,000/- in the lieu of bond or investment of an amount equivalent of Rs.2,00,000/- in the name of the child in the foreign county. After the passing of this order, it has been a matter of routine practice for this Court to insist upon deposit of bond money of Rs.60,000/- as well as investment of Rs.2,00,000/- (now raised to Rs.3,50,000/-) from foreign adoptive parents and of Rs.1,00,000/- in the name of the child in an Indian bank in case of Indian adoptive parents. There is also a practice note issued by this court concerning such investment.

4. As I have mentioned at the outset, it has become necessary to have a relook at the provisions of deposit of bond money and Priya 8 903 fap 59-17 with jo 259-17 in fap 59-17-o investment in the name of the child in the country of adoption, particularly in view of the fact that much water has flown since the passing of the Supreme Court order in Laxmi Kant Pandey's case as also the order passed by this court in Foreign Adoption Petition No. 254 of 2010. In the first place, we now have a comprehensive statutory instrument in place, dealing with adoption of children, in the form of Juvenile Justice (Care and Protection of Children) Act, 2015 ("Act"). This Act provides for various aspects in the matter of adoption, particularly of orphan, abandoned and surrendered children, as per the provisions of the Act, such as eligibility of prospective parents, procedure for adoption by Indian prospective adoptive parents living in India as well as inter-country adoption. Both in the case of adoption of orphan, abandoned or surrendered children and relative adoption, various court procedures and compliances required from various stakeholders such as specialized adoption agencies, the State Adoption Resource Agency ("SARA"), Central Adoption Resource Authority("CARA") etc. are provided for. The Act also provides for powers of the authority, namely, the Central Adoption Resource Authority (CARA), constituted under Section 68 of the Act, which inter alia Priya 9 903 fap 59-17 with jo 259-17 in fap 59-17-o requires CARA to perform various functions including framing of regulations on adoption and related matters from time to time as may be necessary. The Act provides that adoption shall be resorted to, both in the case of orphan, abandoned, surrendered children and in the case of children from relatives, as per the provisions of the Act, the rules made thereunder and the adoption regulations framed by CARA. The Act provides that all inter- country adoptions shall be done only as per the provisions of the Act and the adoption regulations framed by CARA. CARA has framed these regulations, which have since been notified by the Central Government as Adoption Regulations, 2017, in exercise of the powers conferred by clause (c) of Section 68 read with clause (3) of Section 2 of the Act. These regulations inter alia provide for various connected matters relating to the adoption procedure to be applied for adoption of children by resident Indians as well as non- resident Indians, overseas citizens of India and foreign prospective adoptive parents. The Regulations also provide for functions of Government organizations and authority. The Regulations inter alia require (Regulation 12.7) that adoptive parents shall not be asked in the adoption order to execute any bond or make Priya 10 903 fap 59-17 with jo 259-17 in fap 59-17-o investment in the name of the child, considering the fact that their psycho-social profile and financial status have already been ascertained from the home study report and other supporting documents. The provision of Regulation 12.7, though applicable to resident Indians, is made mutatis mutandis applicable even in the case of inter-country adoptions in Chapter IV of the Regulations (Regulation 17.1).

5. Relooking at the provisions of bond money or investment in the name of the child would essentially involve consideration of the rationale of the provisions as proposed by the Supreme Court in Laxmi Kant Pandey's case, which, as I have noted above, have been followed throughout by this court. Secondly, it would also involve consideration of the statutory apparatus now put in place and whether the original rationale for insisting on bond money or investment still holds good under this new apparatus. Apropos of the circumstances, which prompted the Supreme Court to propose a bond or a deposit as a condition of adoption, it needs to be noted at the very outset that there was no statutory enactment in the country at that time providing for adoption of a child by Priya 11 903 fap 59-17 with jo 259-17 in fap 59-17-o foreign parents or laying down the procedure, which must be followed in such a case. The court had to resort to the provisions of the Guardians and Wards Act, 1890 for the purpose of facilitating such adoption. This Act was an old statute inter alia providing for appointment of a guardian of the person or property of a minor. If the court, as defined in that Act, was satisfied that for the welfare of the minor an order should be made appointing a guardian of his person or property or both, the court could make such order. Application for such order had to be made only by one of the four categories of persons specified in clauses (a) to (d) of Sub-Section (1) of Section 8 of the Guardians and Wards Act. What the adoptive parents basically did under this dispensation was to make an application to the court for appointing themselves to be the guardians of the person of the child whom they could thereafter take in adoption in their respective countries after seeking leave of the court to take the child to those countries on being appointed as guardians. Various courts in the country had made their own rules providing for procedural aspects of these orders. The Supreme Court in Laxmi Kant Pandey's case observed that in the absence of any law providing for adoption of an Indian Priya 12 903 fap 59-17 with jo 259-17 in fap 59-17-o child by foreign parents, the only way in which such adoption could be effected was by making an application for adoption in accordance with the law of the country in which the foreigners resided; but that in order to enable such adoption to be made in the country of foreign parents, it would be necessary for the foreign parents to take the child to their own country, where the procedure for making an adoption in accordance with the law of that country could be followed. Yet, the child, who was an Indian national, could not be allowed to be removed out of India by the foreign parents unless they were appointed guardians of the person of the child and were permitted by the court to take the child out of the country. The Supreme Court observed that as the law then stood, the only way in which a foreign parent could take an Indian child in adoption was by making an application to the court within the jurisdiction of which the child ordinarily resided for being appointed a guardian of the person of the child with leave to remove the child out of India and take it to his or her own country for the purpose of adoption in accordance with the law of that country. The court noted the imperative need to facilitate inter-country adoptions and accordingly, proceeded to evolve Priya 13 903 fap 59-17 with jo 259-17 in fap 59-17-o normative and procedural safeguards for ensuring that the child goes into the right family which would provide it warmth and affection of family life and help it grow and develop physically, emotionally, intellectually and spiritually. The court then considered in great details various procedural and legal aspects of inter-country adoption and extensively laid down various safeguards including involvement of social and child welfare agencies, officers of Indian Embassies and High Commissions in the countries of adoption and also the Governments of the States. The court proposed child study reports by recognized social or child welfare agencies as also setting up of a Central Adoption Resource Authority (now 'CARA') with regional branches at a few centers as active facilitators of inter-country adoption. The court not only recommended setting up of such agencies, but also provided for matters in the interregnum, i.e. until such agencies were set up. In the course of setting out these safeguards and procedures, the Supreme Court observed that after considering the various matters including the reports as proposed by it, if the court was satisfied, only then it would make an order appointing a foreigner as a guardian of the child and permitting him to remove Priya 14 903 fap 59-17 with jo 259-17 in fap 59-17-o the child to his or her own country with a view to accomplish the eventual adoption. The Supreme Court observed that the court should introduce a condition in the order that the foreigner who is appointed a guardian shall make a proper provision by way of deposit or bond or otherwise to enable the child to be repatriated to India, should it become necessary for any reason. The court observed that such a provision was found in clause (24) of the Adoption and Children Bill No.210 of 1980, then under contemplation of the central legislature. The Court also noticed the practice of taking a bond from a foreigner, who was appointed as a guardian of child, being followed by the courts in Delhi as a result of a practice note issued by the High Court of Delhi. The Supreme Court noted that the order should also include a condition that the foreigner, who was appointed guardian, would submit to the court as also to the social or child welfare agency processing the application for guardianship, progress reports of the child alongwith recent photographs, initially quarterly during the first two years and thereafter half yearly in the next three years. In pursuance of these directions of the Supreme Court, Central Adoption Resource Authority (CARA) was set up by the Priya 15 903 fap 59-17 with jo 259-17 in fap 59-17-o Government of India with regional centres at a few places in the country. Through the agency of various child welfare agencies, guardianship applications of foreigners in respect of Indian children continued to be processed as per the procedure laid down by the Supreme Court in Laxmi Kant Pandey's case and it was in pursuance of these provisions that our courts insisted on the bond money of Rs.60,000/- and deposit in the name of the minor in the country of its adoption of a sum of Rs.2,00,000/- (subsequently raised to Rs.3,50,000/-).

6. The Supreme Court revisited the issue of deposit or bond to be executed by foreigners in a follow up judgment in the case of Laxmi Kant Pandey Vs. Union of India 1. The court considered (Paragraph No. 12 of the judgment) submissions made by some social/child welfare agencies that the court while appointing a foreigner as guardian of a minor should not insist on deposit being made by way security for enabling the child to be repatriated to India, should it become necessary for any reason and instead allow a bond to be executed by the foreigner towards 1 1985 (SUCP) SC cases 701 Priya 16 903 fap 59-17 with jo 259-17 in fap 59-17-o such security. The court noted that if security by way of deposit were to be insisted upon by the court, it might cause a certain amount of hardship to the foreigner because his money would remain locked up in the court and though upon adoption being effected by him, he may be entitled to return of the amount, it would be difficult to have that amount repatriated to a foreign country. Even so, the court did not think it fit to issue any general direction that deposit should not be insisted upon in any case. The court was of the view that it should be a matter to be decided by the court in the exercise of its judicial discretion. The court accepted that execution of a bond would ordinarily be sufficient, but there could be other alternatives which might be adopted by the court including, in an appropriate case, acceptance of a deposit by way of security instead of a bond.

7. As is clear from the above discussion, bond money was insisted upon basically with a view to see that it would facilitate repatriation of the child from a foreign country, i.e. the country of the adoptive foreign parents, in case the adoption did not go through in that country and it became necessary to bring the child Priya 17 903 fap 59-17 with jo 259-17 in fap 59-17-o back to India. The court, as the ultimate guardian of the minor, felt that it was necessary to provide for a bond or security as a condition for appointment of a foreigner as a guardian of an Indian child and grant of permission to him to remove the child to his own country with a view to facilitate the eventual adoption. This situation no longer obtains under the legal framework provided for in the Juvenile Justice (Care and Protection of Children) Act, 2015. Elaborate provisions have been made under this Act for adoption of Indian children by foreigners. All inter- country adoptions have to be made only as per the provisions of the Act and the adoption regulations framed by the Authority (CARA). The effect of such adoption is provided in Section 63 of the Act. The child, in respect of whom an adoption order is issued by the court under the Act, shall become the child of the adoptive parents, who, in turn, shall become the parents of the child as if the child had been born to them, for all purposes with effect from the date on which the adoption becomes effective. On and from such date all the ties of the child to the family of his or her birth shall stand severed and replaced by those created by the adoption order to the adoptive family. In other words, the adoption order Priya 18 903 fap 59-17 with jo 259-17 in fap 59-17-o provides for a final snapping of the ties of the child to the family of its birth and its becoming the child of the adoptive parents from the date the adoption order comes into effect. The Act further provides for issuance of a passport and visa to the child in pursuance of the adoption order and enables the prospective adoptive parents to receive the child in person from the specialized adoptive agencies only after such passport and visa are issued to the child. It is only thereafter that the adoptive parents can take the child to their country. There is, thus, no question of repatriation of the child, once the child leaves this country as a child of the adoptive parents. There are regulations framed by CARA, which have been notified by the Central Government as Adoption Regulations, 2017, which provide for various procedural aspects including the safeguards to be employed both before and after adoption. These Regulations provide for reporting of the progress of the adopted child for two years from the date of arrival of the adopted child in the receiving country, on a quarterly basis during the first year and on a six monthly basis during the second year by uploading the same online in the Child Adoption and Resource Guidance System (Regulation 19) in a format provided Priya 19 903 fap 59-17 with jo 259-17 in fap 59-17-o in the schedule. The Regulations provide that on the basis of these progress reports or in the course of post adoption home visits, if an adjustment problem of an adoptee with the adoptive parents comes to the notice of the Authorized Foreign Adoption Agency or Central Authority or the concerned Government department in the receiving country, requisite counselling shall be arranged for the adoptive parents and for the adoptee, wherever applicable. The Regulations provide that if it is found that the adoptee is unable to adjust in the adoptive family or that its continuation in the adoptive family is not in the interest of the child, the Authorized Foreign Adoption Agency or Central Authority or the Government department in the receiving country or Indian Diplomatic Commission concerned, as the case may be, shall withdraw the child and provide necessary counseling and arrange suitable alternative adoption or foster placement of the child in that county, in consultation with the Indian Diplomatic Commission and the Authority. The Regulations also provide that in case of any disruption or dissolution of adoption, the child shall be entitled to receive care, protection and rehabilitation through the child protection services of that country and as per Hague Adoption Priya 20 903 fap 59-17 with jo 259-17 in fap 59-17-o Convention for the Hague Adoption Convention ratified countries. The only responsibility placed on the prospective adoptive parents is to furnish an undertaking to allow personal visits of the representatives of the named authorities to ascertain the progress of the child with the adoptive parents or family at least for a period of two years from the date of arrival of the child in the receiving country. Under this dispensation, there is practically no scope for insisting on deposit to be made either in court as bond money or otherwise towards investment in the name of the child. The original rationale for insisting on these conditions, which was with a view to take care of the situation, if adoption finally did not take place in the receiving country, does not apply or is relevant any more. It is in the light of these considerations that the Adoption Regulations, 2017 provide that the adoptive parents shall not be asked in the adoption order to execute any bond or make investment in the name of the child. This mandate under the Regulations is said to be justified particularly "considering the fact that their psycho-social profile and financial status have already been ascertained from the Home Study Report and other supporting documents". There is thus no warrant for insisting on any deposit Priya 21 903 fap 59-17 with jo 259-17 in fap 59-17-o either by way of bond money or by way of investment in the name of the adopted child, while issuing the adoption order.

8. This, however, does not mean that in any appropriate case where the court finds that there is some more compliance which is necessary in the facts of the case on the part of the adoptive parents, the court may in such special case, for reasons to be indicated in the order, provide for an appropriate deposit or bond to facilitate and enforce such compliance. The insistence on such bond or deposit cannot be objected to on the ground that Adoption Regulations, 2017 do not countenance execution of any bond or making of any investment in the name of the child as a condition of the adoption order. Of course, ordinarily the court shall not ask the adoptive parents to execute any bond or make any investments in the name of the child, but that is for normal compliance or enforcement of the adoption order. If there are some other special conditions or any special compliance is called for, the court would be free to make special provisions. For special reasons and with a view to enforce compliance with any special conditions to be laid down in the adoption order depending upon Priya 22 903 fap 59-17 with jo 259-17 in fap 59-17-o the exigencies of the case, the court may use its discretion and insist on any special condition including execution of a bond or making of a deposit.

9. This clarifies the issue raised before the court. Before concluding, this court must record its appreciation for the valuable assistance received from the learned Amicus Curiae by placing before the court the entire statutory and case law and analysing it extensively.

10. As I have noted above, adoption of the child in the present adoption petition is allowed by a separate order passed in the petition.

Organizations: Central Adoption Resource Authority (CARA)