Cappellotto Livio Vs. Indian Council of Social Welfare - Court Judgment

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family - adoption - sections 7, 10 and 11 of guardians and wards act, 1890 - appeal against dismissal of application for appointment of guardian to minor - appointment of guardian sought for purpose of giving minor in adoption to foreigners - apex court's precedent applies to appeal - evidence prove that all requirement provided by apex court fulfilled by appellants - application for appointment of guardian granted. - - if they have good standing and reputation and are doing commendable work in the area of child care and welfare, the supreme court observed that there was no reason why they should not be recognised by the government of india or the government of a state for the purpose of inter-country adoptions. in that judgment the supreme court also endorsed and recommended the setting up of a voluntary coordinating agency (vca) in each state. kummannoor for placement of child mary regy (female) born on 02/03/1988 for inter country adoption, as we are satisfied that maximum efforts have been taken to place the child in indian adotion and that he/she has completed his/her stipulated waiting period. p2 it is clearly mentioned that the cara has no objection in proceeding with the cases for award of guardianship in favour of the petitioners. the certificates of these institutions have to be accepted by the court unless there are strong circumstances to take a different view. a12 is the recommendation certificate from the mayor to the effect that the petitioners are persons of very good moral and civil conduct and that they have a good economic situation.k. john mathew, j.1. these are appeals filed under section 47(d) of the guardians and wards act, viii of 3890, against separate orders of the district judge, kottayam in o.p. (g & w) nos. 173/93, 174/93, 172/93 and 175/93 respectively. those petitions were filed by the respective petitioners therein for appointing them as guardians of four minors, with permission to take them out of india for adoption. the learned district judge has stated the facts in detail in the judgments under appeal. it is not necessary to refer to the facts in this judgment since the petitions were dismissed only on one ground. learned district judge held that the 2nd respondent did not take every effort to secure or to find out members of indian families for being appointed as the guardians of the minors, on this ground these petitions were dismissed.2. although the petitioners are different and the minors in respect of whom the petitions are filed in different, we are disposing of these appeals by this common judgment, since this common question arises in all these appeals.3. the only point that arises in these appeals is whether every effort has been made to rind out an indian couple who are desirous of taking the child in adoption within the country.4. certain malpractices indulged in by social organisations and voluntary agencies engaged in the work of offering indian children in adoption to foreign parents came to the notice of the supreme court from a letter addressed by one lakshmi kant pandey, an advocate practising in that court. the supreme court treated it as a writ petition and issued notice to the union of india, the indian council of child welfare and the indian council of social welfare to assist the court in laying down principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents and if so, the procedure to be followed for that purpose, with the object of ensuring the welfare of the child. in the judgment in that proceeding which is reported in lakshmi kant v. union of india, air 1984 sc 469, the supreme court observed that since there is no statutory enactment in india providing for adoption of a child by foreign parents or laying down the procedure which must be followed in such a case, the provisions of the guardians and wards act can be resorted to for the purpose of facilitating such adoption. court also formulated the norms and procedure regarding the adoption of a child by a foreigner. this judgment was clarified by the supreme court in the later judgment reported in laxmi kant' pandey v. union of india, air 1986 sc 272.5. the supreme court in lakshmi kant's case (air 1984 sc 469) referred to the declaration of the rights of the child adopted by the general assembly of the united nations, in para 7 of the judgment and formulated the norms to be adopted for intercountry adoption with the primary object being the welfare of the child. the supreme court emphasized that great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide to the child a life of moral or material security or the child may be subjected to moral or sexual abuse or forced labour or experimentation for medical or other research and may be placed in a worse situation that in his own country. the primary purpose of adoption is to provide a permanent family for a child who cannot be cared for by his/her biological family. so those responsible for the child should select the most appropriate environment for the particular child concerned. after referring to the guidelines formulated by the regional conference of asia and western pacific held by the international council on social welfare in bombay in 1981 (page 478, para 25) the supreme court set out the procedure to be followed for giving a child in adoption to foreign parents (page 484, para. 12). every application from a foreigner desiring to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner is resident. the social or child welfare agency which sponsors the application for taking a child in adoption must get a home study report prepared by a professional worker indicating the basis on which the application of the foreigner for adopting a child has been sponsored by it. every application of a foreigner for taking a child in adoption must be accompanied by a home study report along with a recent photograph of the family, a marriage certificate of the foreigner and his or her spouse and also a declaration concerning their health together with a certificate regarding their medical fitness duly certified by a medical doctor, a dedication regarding their financial status along with supporting documents and also a declaration stating that they are willing to be appointed as the guardian of the child and undertaking that they would adopt the child according to the law of their country within a period of not more than two years of the arrival of the child in then country and to give intimation of such adoption to the court appointing them as the guardian as also to the social or child welfare agency in india processing their case, that they would maintain the child and provide it necessary education and upbringing according to their status and they would also send to the court as also to the social or child welfare agency in india reports relating to the progress of the child along with its recent photograph. the progress reports are to be sent quarterly during the first two years and half yearly for the next three years. the application of the foreigner must also be accompanied by a power of attorney in favour of an officer of the social or child welfare agency in india which is requested to process the case, in case the foreigner is not in a position to come to india. the social or child welfare agency sponsoring the application of the foreigner must also certify that the foreigner seeking to adopt a child is permitted to do so according to the law of his country. these certificates, declarations and documents which must accompany the application of the foreigner for taking a child in adoption, should be duly notarised by a notary public whose signature should be duly attested either by an officer of the ministry of external affairs or justice or social welfare of the country of the foreigner or by an officer of the indian embassy or high commission or consulate in that country. the social or child welfare agency sponsoring the application of the foreigner must also undertake while forwarding the application to the social or child welfare agency in india, that it will ensure adoption of the child by the foreigner according to the law of his country within a period not exceeding two years and as soon as the adoption is effected, it will send two certified copies of the adoption order to the social or child welfare agency in india through which the application for guardianship is processed, so that one copy can be filed in court and the other can remain with the social or child welfare agency in india. the social or child walfare agency sponsoring the application must also agree to send to the concerned social or child welfare agency in india progress reports in regard to the child, quarterly, during the first year and half yearly for the subsequent year to years until the adoption is effected. it must also undertake that in case of disruption of the family of the foreigner before adoption can be effected, it will take care of the child and find a suitable alternative placement for it with the approval of the concerned social or child welfare agency in india and report such alternative placement to the court handling the guardianship proceedings and such information shall be passed on both by the court as also by the concerned social or child welfare agency in india to the secretary, ministry of social welfare, government of india. the government of india shall prepare a list of social or child welfare agencies licensed or recognised for inter-country adoption by the government of each foreign country where children from india are taken in adoption.6. the safeguards which should be observed in so far as the child proposed to be taken in adoption is concerned, are specified in para 15 of the judgment. the supreme court observed that the indian council of social welfare and the indian council for child welfare are two social or child welfare agencies operating at the national level and recognised by the government of india. apart from these two recognised social or child welfare agencies functioning at the national level, there are other social or child welfare agencies engaged in child care and welfare. if they have good standing and reputation and are doing commendable work in the area of child care and welfare, the supreme court observed that there was no reason why they should not be recognised by the government of india or the government of a state for the purpose of inter-country adoptions. the court also directed the government of india to consider and decide whether any of the institutions or agencies deserve to be recognised for inter-country adoptions. the supreme court also observed that it will be desirable if a central adoption resource agency (cara) is sot up by the government of india with regional branches at a few centres which are active in intercountry adoptions. such cara can act as a clearing house of information in regard to children available for inter-country adoption. all applications by foreigners for taking indian children in adoption will be forwarded by the social or child welfare agency in the foreign country of such cara and that agency will have to forward them to one or the other recognised social or child welfare agencies in the country. before any such application from a foreigner is considered, every effort must be made by the recognised social or child welfare agency to find placement for the child by adoption in an indian family. it is only if no indian family comes forward to take a child in adoption, that the child may be regarded as available for inter-country adoption. the original period of two months specified in lakshmi kant's case (air 1984 sc 469) was reduced to three to four weeks by the supreme court in air 1986 sc 272 at page 280, where there is a voluntary coordinating agency or any other centralised agency which maintains a register of children available for adoption as also a register of indian adoptive parents. in that judgment the supreme court also endorsed and recommended the setting up of a voluntary coordinating agency (vca) in each state. it was also stated that there may be more than one vca in a state. the vca or centralised agency can immediately contact the indian family which is on its register and inform them that a particular child is available for adoption. if within a period of three to four weeks the child is not taken in adoption by an indian family, it should be regarded as available for inter-country adoption.7. it is not necessary to consider all these guidelines and norms prescribed by the supreme court in these judgments since the petitions were dismissed only on the ground that enquiries regarding the availability of indian parents who are willing to adopt the indian child were not properly made.8. we will consider the evidence in m.f.a. no. 1006/93 (o.p. (g & w) no. 173/93) since similar evidence is adduced in the other cases also. ext. a14 is the child study report of minor child mary regy in respect of whom the petition was filed. that report was prepared by the director of st. joseph's children's home where the child is being brought up. the petitioner produced ext. p1 certificate of clearance from the project coordinator of the voluntary coordinating agency for adoption. in that certificate it is stated as follows :'certificate of clearance : this is to certify that vca for adoption, kerala gives clearance to st. joseph's children's home. kummannoor for placement of child mary regy (female) born on 02/03/1988 for inter country adoption, as we are satisfied that maximum efforts have been taken to place the child in indian adotion and that he/she has completed his/her stipulated waiting period.'the petitioner also produced ext. p2 which is a letter from the secretary of the central adoption resource agency (cara), government of india, ministry of welfare, stating that the cara has no objection for the placement of the above mentioned children in inter-country adoption and that the director of st. joseph's children's home, may process the cases of these children in the competent court for award of guardianship in favour of the respective petitioner.9. it may be observed that ext. p1 was issued by the project coordinator of the vca envisaged by the supreme court in para 16 of the case reported in air 1984 sc 469 and ext. p2 was issued by cara. there is no reason to reject their certificates or to doubt its genuineness. in ext. p2 it is clearly mentioned that the cara has no objection in proceeding with the cases for award of guardianship in favour of the petitioners. the certificates of these institutions have to be accepted by the court unless there are strong circumstances to take a different view.10. all the requirements and norms prescribed by the supreme court have been followed and adopted in these cases. ext. al is the general power of attorney of the petitioners in favour of the director of st. joseph v. children's home, where the children are being brought up. ext. a2 is the marriage certificate of the petitioners who are husband and wife ext. a3 is the transfer letter of the director of ananda bhavan, malampuzha, palakkad in respect of the child. ext. a4 is the relinquishment letter executed by the mother of the minor mary regy. ext. a5 is the copy of the recognition certificate of the 2nd respondent, viz. st. joseph's children's home. by ext. a5 the ministry of welfare, government of india, recognised st. joseph's children's home as an institution to submit application to competent courts for declaration of foreigners as guardians of indian children under the guardians & wards act, 1890. ext. a6 is the sterility certificate of the 2nd petitioner. ext. a7 is the certificate of income of the 1st netitioner ext. a8 is the income certificate of the 2nd petitioner. ext. a9 is the home study report of the petitioners' family which is appended to the declaration made by the juvenile court of venice that: the petitioners are suitable to the adoption of a foreign minor. ext. a10 is the health certificate of the petitioners ext. all is the recommendation setter from the petitioners' parish. ext. a12 is the recommendation certificate from the mayor to the effect that the petitioners are persons of very good moral and civil conduct and that they have a good economic situation. ext. a13 is the sanction certificate from the juvenile court of venice which forms part of ext. a9. we have already referred to ext. a14 child study report ext. a15 is a declaration given by the sponsors of the petitioners which is a recognised child welfare agency for inter-country adoption. it is seen that they had investigated the petitioners' family and prepared their home study report. ext. a16 is the photographs of the petitioners ext. a17 is the declaration by the petitioners solemnly declaring that they will legally adopt the minor child and seek to her education etc.11. in the nature of the evidence produced we hold that the petitioners have complied with all the legal formalities for allowing their prayer for appointing them as guardian of the minor. the findings of the learned district judge that sufficient steps were not taken to find out an indian family for being appointed as the guardian of the minor child was not justified. that finding is set aside. we hold that sufficient steps were taken to find out an indian family for being appointed as the guardian of the minor child and that the waiting period is over.12. the further directions contained in lakshmi kant v. union of india, air 1984 sc 469, as modified by laxmi kant pandey v. union of india, air 1986 sc 272 and laxmi kant v. union of india, air 1987 sc 223 will also have to be complied with. accordingly we direct the petitioners and their counsel to comply with all the guidelines contained in the above mentioned judgments. we direct that the district court, kottayam will be the court responsible to implement this judgment. the petitioners should undertake to the district court, kottayam to produce the minor child in that court whenever required, to communicate the particulars of the minor to the indian council of social welfare, rajagiri, kalamassery by 31st day of december of every year, to take proper care, look after, properly educate and to bring up the minor as if she was a child of the petitioners and to treat the said minor on an equal footing with their natural and/or adopted children, if any, in all matters of maintenance, education and succession. before the minor child is taken out of india the petitioners shall also execute a bond either personally or through their duly constituted attorney in india in favour of the district judge, kottayam in the sum of rs. 25,000/- to repatriate the said minor to india by air, should it become necessary for any reason to do so and further undertaking to adopt the said minor within a period of two years after the arrival of the said minor in their country, to the home of the petitioners in accordance with the laws of petitioners' country, and to submit to the district judge, kottayam copy of the adoption order. they should undertake to send to the district court, kottayam till adoption, every three months for the first two years and every six months for the next three years, progress report of the said child along with recent photographs made or verified as true and correct by the sponsoring organisation which made the study report regarding the minor's moral and material progress and the minor's adjustment in the house of the petitioners with other family members. copies of these reports shall also be sent to indian council of social welfare, rajagiri, kalamassery and to the st. joseph's children's home, kummannoor.13. similar documents are produced in a appeals. it is not necessary to consider those documents separately. the directions issued above will apply to all the petitioners (appellants).14. m.f.a. no. 1006 of 1993: subject to the general directions in this judgment the appellants are hereby appointed as guardians without any remuneration for the minor female child mary regy born on 2-3-1988 whose latest photograph duly certified as such by the counsel for the appellants and countersigned by the registrar of this court will be attached to this judgment as annexure 'a'. this child is presently in custody and care of the st. joseph's children's home, kummannoor. it is further ordered that after executing the bond as aforesaid by the appellants or their duly constituted power of attorney, they are hereby granted leave to remove the said minor from the jurisdiction of this court and to take her away to the country of the appellants or wherever the appellants may desire and for that purpose they may make applications to the passport authorities or any other authorities to take away the said minor female child mary regy out of the jurisdiction of this court.15. m.f.a. no. 1007 of 1993. subject to the general directions in this judgment the appellants are hereby appointed as guardians without any remuneration for the minor female child mary nisha born on 14-2-1985 whose latest photograph duly certified as such by the counsel for the appellants and countersigned by the registrar of this court will be attached to this judgment as ' annexure 'b', this child is presently in custody and care of the st. joseph's children's home, kummannoor. it is further ordered that after executing the bond as aforesaid by the appellants or their duly constituted power of attorney, they are hereby granted leave to remove the said minor from the jurisdiction of this court and to take her away to the country of the appellants or wherever the appellants may desire and for that purpose they may make applications to the passport authorities or any other authorities to take away the said minor female child mary nisha out of the jurisdiction of this court.16. m.f.a. no. 1008 of 1993. subject to the general directions in this judgment the appellants are hereby appointed as guardians without any remuneration for the minor female child usha born on 8-10-1991, whose latest photograph duly certified as such by the counsel for the appellants and countersigned by the registrar of this court will be attached to this judgment as annexure 'c). this child is presently in custody and care of the st. joseph's children's home, kummannoor. it is further ordered that after executing the bond as aforesaid by the appellants or their duly constituted power of attorney, they are hereby granted leave to remove the said minor from the jurisdiction of this court and to take her away to the country of the appellants or wherever the appellants may desire and for that purpose they may make application to the passport authorities or any other authorities to take away the said minor female child usha out of the jurisdiction of this court.17. m.f.a. no. 1009 of 1993 : subject to the general directions in this judgment the appellants are hereby appointed as guardians without any remuneration for the minor female child jyothi born on 4-6-1991, whose latest photograph duly certified as such by the counsel for the appellants and countersigned by the registrar of this court will be attached to this judgment as annexure 'd'. this child is presently in custody and care of the st. joseph's children's home, kummannoor. it is further ordered that after executing the bond as aforesaid by the appellants or their duly constituted power of attorney, they are hereby granted leave to remove the said minor from the jurisdiction of this court and to take her away to the country of the appellants or wherever the appellants may desire and for that purpose they may make applications to the passport authorities or any other authorities to take away the said minor female child jyothi out of the jurisdiction of this court.the district court is authorised and directed to take further steps for complying with the directions of this court in this judgment. the respective judgments of the district court, kottayam, are set aside and the appeals are allowed as above.