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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1053 of 2013
(Arising out of SLP (Civil) No. 29505 of 2012)
Stephanie Joan Becker ... Appellant(s)
Versus
State and Ors. ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
Leave granted.
2. The rejection of the applications filed by the appellant
under Sections 7 and 26 of the Guardians and Wards Act, 1890
(hereinafter for short the “Guardians Act”) by the learned Trial
Court vide its order dated 17.09.2010 in Guardianship Case No. 2
of 2010 and the affirmation of the said order made by the High
Court of Delhi by its order dated 09.07.2012 in FAO No. 425 of
2010 has been put to challenge in the present appeal.
By the
application filed under Section 7 of the Guardians Act, the
appellant had sought for an order of the Court appointing her asPage 2
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the guardian of one female orphan child Tina aged about 10
years
whereas by the second application filed under Section 26
of the Guardians Act the appellant had sought permission of the
Court to take the child Tina out of the country for the purpose of
adoption.
3. The rejection of the aforesaid two applications by the
learned Trial Court as well as by the High Court is on a sole and
solitary ground, namely, that the appellant, being a single
prospective adoptive parent, was aged about 53 years at the
relevant point of time whereas for a single adoptive parent the
maximum permissible age as prescribed by the Government of
India Guidelines in force was 45.
Though a no objection, which
contained an implicit relaxation of the rigour of the Guidelines
with regard to age, has been granted by the Central Adoption
Resource Authority (CARA), the High Court did not consider it
appropriate to take the said no objection/relaxation into account
inasmuch as the reasons for the relaxation granted were not
evident on the face of the document i.e. no objection certificate
in question.
4. To understand and appreciate the contentious issues that
have arisen in the present appeal, particularly, the issues raisedPage 3
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by a non-governmental organization that had sought
impleadment in the present proceedings (subsequently
impleaded as respondent No. 4) it will be necessary to take note
of the principles of law governing inter-country adoption, a short
resume of which is being made hereinbelow. But before doing
that it would be worthwhile to put on record that the objections
raised by the Respondent No.4, pertain to the legality of the
practice of inter country adoption itself, besides the bonafides of
the appellant in seeking to adopt the child involved in the
present proceeding and the overzealous role of the different
bodies involved in the process in question resulting in side
stepping of the laid down norms.
5. The law with regard to inter-country adoption, indeed, was
in a state of flux until the principles governing giving of Indian
children in adoption to foreign parents and the procedure that
should be followed in this regard to ensure absence of any
abuse, maltreatment or trafficking of children came to be laid
down by this Court in Lakshmi Kant Pandey v. Union of
India
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. The aforesaid proceedings were instituted by this Court
on the basis of a letter addressed by one Lakshmi Kant Pandey, a
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(1984) 2 SCC 244Page 4
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practicing advocate of this Court with regard to alleged
malpractices indulged in by social and voluntary organizations
engaged in the work of offering Indian children in adoption to
foreign parents. After an elaborate consideration of the various
dimensions of the questions that arose/were raised before the
Court and the information laid before it by the Indian Council of
Social Welfare, Indian Council of Child Welfare, SOS Children’s
Villages of India (respondent No. 2 herein) and also certain
voluntary organizations working in the foreign jurisdictions, this
Court, after holding in favour of inter country adoption, offered
elaborate suggestions to ensure that the process of such
adoption is governed by strict norms, and a well laid down
procedure to eliminate the possibility of abuse or misuse in
offering Indian children for adoption by foreign parents is in
place. This Court in Lakshmi Kant Pandey (supra) also laid
down the approach that is required to be adopted by the courts
while dealing with applications under the Guardians and Wards
Act seeking orders for appointment of foreign prospective
parents as guardians of Indian children for the eventual purpose
of adoption. Such directions, it may be noticed, was not only
confined to hearing various organizations like the Indian CouncilPage 5
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for Child Welfare and Indian Council of Social Welfare by issuance
of appropriate notices but also the time period within which the
proceedings filed before the Court are to stand decided. Above
all, it will be necessary for us to notice that in Lakshmi Kant
Pandey (supra) this Court had observed that :
“Of course, it would be desirable if a Central
Adoption Resource Agency is set up by the
Government of India with regional branches at a
few centres which are active in inter-country
adoptions. Such Central Adoption Resource
Agency can act as a clearing house of information
in regard to children available for inter-country
adoption and all applications by foreigners for
taking Indian children in adoption can then be
forwarded by the social or child welfare agency in
the foreign country to such Central Adoption
Resource Agency and the latter can in its turn
forward them to one or the other of the
recognized social or child welfare agencies in the
country.”
6. Pursuant to the decision of this Court in Lakshmi Kant
Pandey (supra) surely, though very slowly, the principles
governing adoption including the establishment of a central
body, i.e., Central Adoption Resource Authority (CARA) took
shape and found eventual manifestation in a set of elaborate
guidelines laid down by the Government of India commonly
referred to as the Guidelines For Adoption from India 2006Page 6
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(hereinafter referred to as “the Guidelines of 2006”). A reading
of the aforesaid Guidelines indicates that elaborate provisions
had been made to regulate the pre-adoption procedure which
culminates in a declaration by the Child Welfare Committee that
the child is free for adoption. Once the child (abandoned or
surrendered) is so available for adoption the Guidelines of 2006
envisage distinct and separate steps in the process of adoption
which may be usefully noticed below :
(1) Enlisted Foreign Adoption Agency
(EFAA)
The applicants will have to contact or register
with an Enlisted Foreign Adoption Agency
(EFAA)/Central Authority/Govt. Deptt. in
their country, in which they are resident,
which will prepare the a Home Study
Report (HSR) etc. The validity of “Home
Study Report” will be for a period of two
years. HSR report prepared before two years
will be updated at referral.
The applicants should obtain the permission
of the competent authority for adopting a
child from India. Where such Central
Authorities or Government departments are
not available, then the applications may be
sent by the enlisted agency with requisite
documents including documentary proof
that the applicant is permitted to adopt from
India
The adoption application dossier should
contain all documents prescribed
in Annexure-2. All documents are to bePage 7
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notarized. The signature of the notary is
either to be attested by the Indian
Embassy/High Commission or the
appropriate Govt. Department of the
receiving country. If the documents are in
any language other than English, then the
originals must be accompanied by attested
translations
A copy of the application of the prospective
adoptive parents along with the copies of
the HSR and other documents will have to
be forwarded to RIPA by the Enlisted Foreign
Adoption Agency (EFAA) or Central Authority
of that country.
(2) Role of Recognized Indian Placement
Agency (RIPA)
On receipt of the documents, the Indian
Agency will make efforts to match a child
who is legally free for inter-country adoption
with the applicant.
In case no suitable match is possible within 3
months, the RIPA will inform the EFAA and
CARA with the reasons therefore.
(3) Child being declared free for intercountry adoption - Clearance by ACA
Before a RIPA proposes to place a child in the
Inter country adoption, it must apply to the
ACA for assistance for Indian placement.
The child should be legally free for adoption.
ACA will find a suitable Indian prospective
adoptive parent within 30 days, failing which
it will issue clearance certificate for intercountry adoption.Page 8
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ACA will issue clearance for inter-country
adoption within 10 days in case of older
children above 6 years, siblings or twins and
Special Needs Children as per the additional
guidelines issued in this regard.
In case the ACA cannot find suitable Indian
parent/parents within 30 days, it will be
incumbent upon the ACA to issue a
Clearance Certificate on the 31
st
day.
If ACA Clearance is not given on 31
st
day, the
clearance of ACA will be assumed unless
ACA has sought clarification within the
stipulation period of 30 days.
NRI parent(s) (at least one parent) HOLDING
Indian Passport will be exempted from ACA
Clearance, but they have to follow all other
procedures as per the Guidelines.
(4) Matching of the Child Study Report with
Home Study Report of FPAP by RIPA
After a successful matching, the RIPA will
forward the complete dossier as per
Annexure 3 to CARA for issuance of “No
Objection Certificate”.
(5) Issue of No Objection Certificate (NOC)
by CARA
RIPA shall make application for CARA NOC in
case of foreign/PIO parents only after ACA
Clearance Certificate is obtained.
CARA will issue the ‘NOC’ within 15 days from
the date of receipt of the adoption dossier if
complete in all respect.
If any query or clarification is sought by
CARA, it will be replied to by the RIPA within
10 days.Page 9
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No Indian Placement Agency can file an
application in the competent court for intercountry adoption without a “No Objection
Certificate” from CARA.
(6) Filing of Petition in the Court
On receipt of the NOC from CARA, the RIPA
shall file a petition for adoption/guardianship
in the competent court within 15 days.
The competent court may issue an
appropriate order for the placement of the
child with FPAP.
As per the Hon’ble Supreme Court directions,
the concerned Court may dispose the case
within 2 months.
(7) Passport and Visa
RIPA has to apply in the Regional Passport
Office for obtaining an Indian Passport in
favour of the child.
The concerned Regional Passport Officer
may issue the Passport within 10 days.
Thereafter the VISA entry permit may be
issued by the Consulate/Embassy/High
Commission of the concerned country for
the child.
(8) Child travels to adoptive country
The adoptive parent/parents will have to
come to India and accompany the child back
to their country.
7. Even after the child leaves the country the Guidelines of
2006 contemplate a process of continuous monitoring of the
welfare of the child through the foreign placement agency untilPage 10
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the process of adoption in the country to which the child has
been taken is completed, which process the Guidelines
contemplate completion within two years. The monitoring of the
welfare of the child after the process of adoption is complete and
the steps that are to be taken in cases where the adoption does
not materialize is also contemplated under the Guidelines of
2006. As the said aspects are not relevant for the purposes of
the present adjudication the details in this regard are not being
noticed. What, however, would require emphasis, at this stage,
is that by and large the Guidelines of 2006 framed by the
Ministry of Women and Child Development are in implementation
of the decision of this Court in the case of Lakshmi Kant
Pandey (supra).
8. Two significant developments in the law governing
adoptions may now be taken note of. Section 41 of the Juvenile
Justice (Care and Protection of Children) Act, 2000 (hereinafter
for short the “JJ Act”) was amended by Act 33 of 2006 by
substituting sub-Sections 2, 3 and 4 by the present provisions
contained in the aforesaid sub-Sections of Section 41. The
aforesaid amendment which was made effective from 22.8.2006
is significant inasmuch as under sub-Section 3 power has beenPage 11
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conferred in the Court to give a child in adoption upon
satisfaction that the various guidelines issued from time to time,
either by the State Government or the CARA and notified by the
Central Government have been followed in the given case. The
second significant development in this regard is the enactment
of the Juvenile Justice (Care and Protection of Children) Rules
2007 by repeal of the 2001 Rules in force. Rule 33 (2) makes it
clear that “for all matters relating to adoption, the guidelines
issued by the Central Adoption Resource Agency and notified by
the Central Government under sub-section (3) of Section 41 of
the Act, shall apply.” Rule 33 (3) in the various sub-clauses (a)
to (g) lays down an elaborate procedure for certifying an
abandoned child to be free for adoption. Similarly, sub-rule (4) of
Rule 33 deals with the procedure to be adopted for declaring a
surrendered child to be legally free for adoption. Once such a
declaration is made, the various steps in the process of adoption
spelt out by the Guidelines of 2006, details of which have been
extracted hereinabove, would apply finally leading to departure
of the child from the country to his/her new home for completion
of the process of adoption in accordance with the laws of the
country to which the child had been taken. In this regard thePage 12
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order of the courts in the country under Section 41(3) of the JJ
Act would be a step in facilitating the adoption of the child in the
foreign country.
9. It will also be necessary at this stage to take note of the fact
that the Guidelines of 2006 stand repealed by a fresh set of
Guidelines published by Notification dated 24.6.2011 of the
Ministry of Women and Child Development, Government of India
under Section 41(3) of the JJ Act. The time gap between the
coming into effect of the provisions of Section 41(3) of the JJ Act
i.e. 22.08.2006 and the publication of the 2011 Guidelines by the
Notification dated 24.6.2011 is on account of what appears to be
various procedural steps that were undertaken including
consultation with various bodies and the different State
Governments. A reading of the Guidelines of 2011 squarely
indicate that the procedural norms spelt out by the 2006
Guidelines have been more elaborately reiterated and the
requirements of the pre-adoption process under Rules 33(3) and
(4) have been incorporated in the said Guidelines of 2011. As a
matter of fact, by virtue of the provisions of Rule 33(2) it is the
Guidelines of 2011 notified under Section 41(3) of the JJ Act
which will now govern all matters pertaining to inter-countryPage 13
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adoptions virtually conferring on the said Guidelines a statutory
flavour and sanction. Though the above may not have been the
position on the date of the order of the learned trial court i.e.
17.9.2010, the full vigour of Section 41(3) of the JJ Act read with
Rule 33 (2) of the Rules and the Guidelines of 2011 were in
operation on the date of the High Court order i.e. 9.7.2012. The
Notification dated 24.06.2011 promulgating the Guidelines of
2011 would apply to all situations except such things done or
actions completed before the date of the Notification in question,
i.e., 24.06.2011. The said significant fact apparently escaped the
notice of the High Court. Hence the claim of the appellant along
with consequential relief, if any, will have to be necessarily
considered on the basis of the law as in force today, namely, the
provisions of the JJ Act and the Rules framed thereunder and the
Guidelines of 2011 notified on 24.6.2011. In other words, if the
appellant is found to be so entitled, apart from declaring her to
be natural guardian and grant of permission to take the child
away from India a further order permitting the proposed
adoption would also be called for. Whether the order relating to
adoption of the child should be passed by this Court as the same
was not dealt with in the erstwhile jurisdictions (trial court andPage 14
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the High Court) is an incidental aspect of the matter which
would require consideration.
10. The facts of the present case, as evident from the pleadings
of the parties and the documents brought on record, would go to
show that the appellant’s case for adoption has been sponsored
by an agency (Journeys of the Heart, USA) rendering service in
USA which is recognized by CARA. The Home Study Report of
the family of the appellant indicates that the appellant apart
from being gainfully employed and financially solvent is a person
of amicable disposition who has developed affinity for Indian
culture and Indian children. The appellant, though unmarried,
has the support of her brother and other family members who
have promised to look after the child in the event such a
situation becomes necessary for any reason whatsoever. The
Child Study Report alongwith medical examination Report
prepared by the recognized agency in India has been read and
considered by the appellant and it is only thereafter that she had
indicated her willingness to adopt the child in question. Before
permitting the present process of inter country adoption to
commence, all possibilities of adoption of the child by an Indian
parent were explored which however did not prove successful.Page 15
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The matter was considered by the No Objection Committee of
the CARA and as stated in the affidavit of the said agency filed
before this Court, the No Objection Certificate dated 03.02.2010
has been issued keeping in mind the various circumstances
peculiar to the present case, details of which are as hereunder :
• “Child Tina was an older female child (aged 7 years when the
NOC was issued) and thus relaxation was permissible as per the
guidelines.
• The Prospective parent was 54 years of age, which is within the
age up to which adoption by foreign prospective parent is
permissible after relaxation i.e. 55 years.
• The Prospective Adoptive Parent is otherwise also suitable as
she is financially stable and there are three reference letters
supporting adoption of the child by her. The Home study report
of the prospective parent (Ms. Stephanie Becker) shows the
child as kind, welcoming, caring and responsible individual with
physical, mental emotional and financial capability to parent a
female child up to age of seven years from India.
• Procedures such as declaration of the child as legally free for
adoption by CWC Child Welfare Committee (CWC); ensuring
efforts for domestic adoption and clearance of Adoption
Coordinating Agency; and taking consent of older child had
been followed.
• Follow-up of the welfare of the child was to be properly done
through Journeys of the Hearts, USA, the authorized agency
which had also given an undertaking to ensure the adoption of
child Tina according to the laws in USA within a period not
exceeding two years from the date of arrival of the child in her
new home. The agency has also committed to send follow-up
reports as required.
• The Biological brother of the prospective parent, Mr. Philip
Becker Jr. and his wife Ms. Linda Becker have given anPage 16
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undertaking on behalf of the single female applicant to act as
legal guardian of the child in case of any unforeseen event to the
adoptive parent. This is another important safeguard.
• Article 5 from the Office of Children’s Issues, US Department
of State allowing child Tina to enter and reside permanently in
the United States and declaring suitability of the prospective
adoptive parent, was available.”
11. In view of the facts as stated above which would go to show
that each and every norm of the adoption process spelt out
under the Guidelines of 2006, as well as the Guidelines of 2011,
has been adhered to, we find that the apprehension raised by
the intervener, though may have been founded on good reasons,
have proved themselves wholly unsubstantiated in the present
case. If the foreign adoptive parent is otherwise suitable and
willing, and consent of the child had also been taken (as in the
present case) and the expert bodies engaged in the field are of
the view that in the present case the adoption process would end
in a successful blending of the child in the family of the appellant
in USA, we do not see as to how the appellant could be
understood to be disqualified or disentitled to the relief(s) sought
by her in the proceedings in question. It is our considered view
that having regard to the totality of the facts of the case the
proposed adoption would be beneficial to the child apart fromPage 17
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being consistent with the legal entitlement of the foreign
adoptive parent. If the above is the net result of the discussions
that have preceded, the Court must lean in favour of the
proposed adoption. We, therefore, set aside the orders dated
17.09.2010 in Guardianship Case No. 2 of 2010 passed by the
learned Trial Court and the order dated 09.07.2012 in FAO No.
425 of 2010 passed by the High Court of Delhi and appoint the
appellant as the legal guardian of the minor female child Tina
and grant permission to the appellant to take the child to USA.
In view of the provisions of Section 41(3) of the JJ Act and to
avoid any further delay in the matter which would be caused if
we were to remand the aforesaid aspect of the case to the
learned Trial Court, only on the ground that the same did not
receive consideration of the learned Court, we deem it
appropriate to pass necessary orders giving the child Tina in
adoption to the appellant. The CARA will now issue the
necessary conformity certificate as contemplated under clause
34(4) of the Guidelines of 2011. The appeal consequently shall
stand allowed in the above terms.
...…………………………J.
[P. SATHASIVAM]Page 18
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.........……………………J.
[RANJAN GOGOI]
.........……………………J.
[V. GOPALA GOWDA]
New Delhi,
February 08, 2013.
