Bombay High Court
Swti, Bal Vikas vs Erik Smeulders And Vincenza Sanna ... on 17 February, 2020
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
pvr 1 FAP-41-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
AND
IN ITS GENERAL AND INHERENT JURISDICTION
FOREIGN ADOPTION PETITION NO.41 OF 2019
SWIT, Bal Vikas ...Petitioner
vs.
Erik Smeulders and Vincenza Sanna ...Proposed Adopters
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Smt.Lalita Jaya Raj, for the Petitioner.
Mr.Vinod Joshi with Ms.L.B.Patne, for Union of India/CARA.
Mr.Sanjay Barshilia, Director and Dr.Jagannath Pati, Joint Director of
CARA present.
Mr.O.Hareendran, Scrutiny Officer of ICSW present.
-----
CORAM : G.S. KULKARNI, J.
(In Chamber) DATE : 17 February 2020 P.C.:
1. This is a case of adoption of a 3 years old female child Raavi, who is in the best of her health, by foreign adoptive parents, who are residents of Belgium. The issue is about the medical condition of these adoptive parents and the impact, their medical condition would have on the minor to be taken in adoption.
2. On 5th February 2020 this Court passed the following order:-
" This is quite a serious matter, and in my opinion which would shock the conscience of the Court. This is now more clear considering today's discussion, when in pursuance of the earlier orders Mr.Ashutosh Sharma, Assistant Director of CARA is present who is represented by Ms.Lata Patne, panel counsel for Government of India.
2. The background is required to be recapitulated. The petitioner institution, considering the medical reports of the adoptive parents had addressed the following email to CARA on 28 June 2019 :-
pvr 2 FAP-41-19 "We have just been able to access the file of family Erik Smeulders from Belgiam who has reserved child RAAVI from our agency. The male applicant has an inherited neurological disorder known as Charcot Marie tooth. This condition can progress over a period of time and therefore we are concerned.
Attached is the medical certificate.
The female applicant has had a heart transplant and has a pacemaker and has to be on regular medication. Kindly look into this."
3. On 6 December 2019 the Court passed following order :- "4. It is informed by the learned Counsel for the petitioner that no reply to this email was received from CARA. I have been formally appraised of the nature of the ailment of the proposed adoptive father. In my opinion, a clarification is on these issues is necessary from CARA, more particularly considering the present medical condition and the nature of the ailments of the proposed adopters, whether it would be in the paramount interest and welfare of the child, to be given in adoption to the proposed adopters, significantly when the child being given in adoption is about 3 years of age.
5. In the above circumstances, the CARA would be required to examine the matter carefully and on the basis of adequate medical material and on the opinion of experts in the medical field come to a considered decision, giving reasons thereof as to whether it would be appropriate and in the interest of the minor to be granted in adoption to the proposed adopters. The appropriate decision in this regard be taken by CARA within four weeks from today and a report to that effect be placed on record of this petition which shall include the expert's medical reports."
(emphasis supplied)
4. Thus what was expected is that CARA would examine the matter carefully as observed by the Court in paragraph 5 of the above order and on the basis of adequate medical material and on the opinion of experts in the medical field come to a considered decision, giving reasons thereof as to whether it would be appropriate and in the interest of the minor to be granted in adoption to the proposed adopters. Such a decision was to be taken by CARA within four weeks from the date of the order and a report to be placed on record of this petition which was to include the expert's medical report. The said order was emailed to CARA and was received by CARA, however unfortunately the approach of the CARA to say the least order was to just disregard the said order as no action was taken on the said order and till date.
5. Thereafter on 3 January 2020, noting the inaction on the part of CARA, the Court again made the following observations in paragraph 2 of the said order:-
"2. There is an office report that CARA is already served with the above order. However so far, on behalf pvr 3 FAP-41-19 of CARA nothing is placed on record. The Court is thus unable to proceed with the matter. In the aforesaid situation, there is no alternative but to direct CARA to place on record the entire record including medical report before the Court on the adjourned date of hearing, failing which CARA shall depute a representative to remain present alongwith the entire record."
6.. Again the above order was communicated to CARA. Again there was no response whatsoever, as also CARA failed to place on record any material as directed. Despite the knowledge of the orders what CARA did was to call upon Ms.Prajakta Poojari, representative of the State Adoption Resources Authority to appear before the Court on 24 January 2020 to tender a letter dated 23 December 2019 of CARA. The Court accordingly on 24 January 2020 passed the following order:-
" On 3 January 2020 this Court has passed an order taking note of the earlier order dated 6 December 2019. In paragraph 2 of the said order the following directions were made:-
2. There is an office report that CARA is already served with the above order. However so far, on behalf of CARA nothing is placed on record. The Court is thus unable to proceed with the matter.
In the aforesaid situation, there is no alternative but to direct CARA to place on record the entire record including medical report before the Court on the adjourned date of hearing, failing which CARA shall depute a representative to remain present alongwith the entire record."
2. Today Ms.Prajakta Poojari, representative from State Adoption Resource Authority (for short 'SARC') is present and tendered a photocopy of a letter dated 23 December 2019 addressed by Dr.J.Pati, Joint Director, CARA to Mr.Rushikesh Yashod, Commissioner, Commisonarate Women & Child Development, in which in paragraph 3 the following remarks are made:-
"3. It is directed that a representative from SARA may attend the court during the next hearing and following submission be given to the Hon'ble Court, in compliance to the order dated 06 Dec 2019:-
(a) The No Objection Certificate (which is Article 17 of the Hague Convention for Inter-country adoption, to which India is a signatory) is issued by this Authority under Regulation 16(1) of the Adoptions Regulations,2017. The NOC is issued only after the records/documents pvr 4 FAP-41-19 of the Prospective Adoptive Parents and the Child have been examined by the NOC Committee of CARA, which comprises of three external experts including a medical expert from AIIMS who is the Chairperson of the Committee.
In this case, the Chairperson of NOC Committee from AIIMS, Delhi has reviewed the case and approved with remarks "Child Ravi (F) DOB 10/11/2016 is a normal child as per MER which is signed by both the PAPS may be considered for adoption in the best interest of the child. The attached medical report of the mother has no contraindication for adoption." (copy of the Remarks recorded are enclosed for reference)
(b) Further, the Hon'ble Court may pass an order looking at the facts placed before the Hon'ble Court as per Section 61 of the JJ Act,2015, considering the best interests of the child.
(c) The Hon'ble Court may also be apprised that the child was referred to eight Indian families and is hard to place, after which it was referred to foreigners. The family accepted to adopt the child after two foreign families refused to adopt the child after reserving her."
3. In my opinion, the above remarks do not satisfy the anxiety of the Court and the apprehensions which are discussed at the hearing of this matter and as seen from the observations as made in the order dated 3 January 2020. Accordingly, CARA is directed to comply with the directions as contained in paragraph 2 of the order dated 3 January 2020 passed by this Court.
4. The order dated 3 January 2020 was already forwarded by e-mail to CARA and was received by CARA. It is surprising that despite receipt of the order dated 3 January 2020, CARA called upon the representative of the State Adoption Resources Authority to appear with incomplete details before the Court and simply tender the said letter of CARA. This is not acceptable. The issue before the Court is of paramount welfare of the child.
5. At today's discussion, it is also noticed that the home study report which is annexed to the petition is not at all a home study report. This is also the submission of the learned Counsel for the petitioner. If this be the position, it is more a matter for CARA to reconsider its approval. All these issues would be pvr 5 FAP-41-19 considered on the adjourned date of hearing.
6. Smt.Lalita Jaya Raj, learned Counsel for the petitioner has also placed on record her comments (pages 1 and 2) on this home study report which is taken on record and marked "X-2" for identification.
7. Mr.O. Hareendran, Scrutiny Officer of ICSW would also study the respective reports and place his comments before this Court on the adjourned date of hearing.
8. In the above circumstances, the Court would not accept any further laxity in complying the orders of the Court by CARA. The representative of CARA shall remain present in the Court alongwith the entire record as directed. Without examining the record, it may not be possible for this Court to proceed in the matter and pass any further order.
9. Stand over to 7 February 2020."
7. It is also required to be noted that there are two Home study reports of the adoptive parents. First is of the year 2014. The second report is dated 30 September 2018. It appears that CARA mechanically considered these reports. This for two reasons firstly both the reports are identically worded. There cannot be a verbatim copy of the first report. Secondly the ailments of the adoptive parents are completely overlooked before granting a NOC on 14 August 2019. CARA appears to have totally overlooked such discrepancies and instead of calling upon the authorities to forward an explanation, CARA appears to have accepted both the home study reports of 2014 and 2018.
8. Being dissatisfied with the approach of the CARA, the Court had accordingly passed the following order dated 24 January 2020 directing the representative of CARA to remain present in the Court:-
8. In the above circumstances, the Court would not accept any further laxity in complying the orders of the Court by CARA. The representative of CARA shall remain present in the Court alongwith the entire record as directed. Without examining the record, it may not be possible for this Court to proceed in the matter and pass any further order.
9. Accordingly, Mr.Ashutosh Sharma, Assistant Director of CARA has remained present. Mr.Sharma was asked to inform the Court as how the CARA's Committee had examined the medical condition of the adoptive parents, and as to what are the comments of the medical experts on these medical conditions. It was emphasized that this would be necessary so that the Court can be sure that the welfare of the child to be placed in the hands of the foreign adoptive parents is well protected.
10. Mr.Ashutosh Sharma, Assistant Director of CARA has stated pvr 6 FAP-41-19 that the decision has been taken by the NOC Committee and accordingly a NOC dated 14 August 2019 was granted by the Joint Director. He has also handed over to the Court a statement which is titled as "NOC Committee Remarks". The remarks of the NOC Committee are by different members which comprises of Dr.Arvind Kumar, Assistant Professor of Medicine, Ms.Kiran Singh, Member Legal, Dr.Zubair Meenal, Social Expert Member, Dr.Vinita Bhargava, Social Expert Member, Ms.Madhulika Mohta, Legal Expert Member, Dr.Gouri Shankar Kaloiya, Associate Professor who have made the remarks and recommendations on different dates as under:-
S. MC Member Designation Remarks Recommen Date N Name dation o 1 Dr.Arvind Kumar Assistant Child Ravi (F) DOB Yes 07/08/20 Professor 10/11/2016 is a normal child as 19 per MER which is signed by both the PAPS may be considered for adoption in the best interest of the child. The attached medical report of the mother has no contraindication for adoption.
2 Ms.Kiran Singh Member NOC given by legal member on Yes 07/08/20 Legal 19/07/2019 subject to medical 19 member approval.
3 Dr.Zubair Meenal Social Expert PAPs from Belgium do not have Yes 07/08/20 Member biological children as mother 19 has health issues. However, this does not impinge on their role as adoptive parents. As per the HSR and psychological reports available the couple is financially stable and emotionally balanced. I recommend and approve the NOC.
4 Dr.Vinita Social Expert Female Raavi DOB 10/11/2016. Yes 19/07/20 Bhargava Member PAPs from Belgium with 19 composite age of 89 years and 6 months do not have biological children as mother had health issues. The couple is financially stable and emotionally balanced. The female PAP has a heart transplant and the pacemaker needs change. She needs regular rest and care.
However the MER does not indicate that there is any risk in parenting an adopted child.
Please red flag for regular pvr 7 FAP-41-19 followup of child in adoptive family. I recommend and approve NOC.
5 Madhulika Legal Expert Child Ravi (F) D.O.B. Yes 19/07/20 Mohta Member 10.11.2016 is a normal child. 19 Child is legally free for adoption as per CWC dated 8.03.2019.
Receiving Country of child where Applicants ordinarily resides have issued necessary certificate in accordance with Article 5 and 17 of Hague Inter Country Adoptions. PAP's considered suitable to adopt the Child. NOC recommended.
6 Dr.Gouri Shankar Associate PAPs from Belgium with 19/07/20 Kaloiya Professor satisfactory psychological 19 reports have signed CSR and MER of the normal female child Raavi. However, medical report of the mother needs to be reviewed by Dr. Arving/Prof Sheffali/Prof.Sood.
7 Madhulika Legal Expert Under Section 38 of JJ Act, Yes 23/08/20 Mohta Member 2015, NOC already approved as 19 there are no legal issues. The Child may be given for adoption in her best interest.
8 Dr. Gouri Associate As advised on 19/7/19. 26/07/20 Shankar Kaloiya Professor 19 9 Ms.Kiran Singh Member NOC given by legal member on Yes 26/07/20 Legal 19/07/2019. 19 1 Dr.Vinita Social Expert Female Raavi DOB 10/11/2016, Yes 26/07/20 0 Bhargava Member I recommend and approve in 19 the best interest of the child
11. There are subsequent remarks in addition to the above remarks titled as "Remarks after NOC Committee" which are made by Richa Ojha, Akanksha and Sanjay Barshilia (Director). The last remark is of Mr.Sanjay Barshilia dated 26 August 2019 stating that as recommended by NOC Committee, NOC be issued. However, it is surprising to note that NOC was issued much earlier to the said remarks that is on 14 August 2019.
S. Name Designation Remarks Recommen Date N ded o 1 Richa Ojha Assistant Pl see the remarks of Medical 19/07/20 Professor Member and take action 19 pvr 8 FAP-41-19 accordingly 2 Akanksha Young The case is re submitted for Yes 25/07/20 Professional approval of NOC committee 19 medical member. The case for sent for re examination in the Previous committee for review of medical report of the female PAP. The case is re submitted for the same. 3 Sanjay Barshilia Director As recommended by Medical 29/07/20 Programme Member of NOC Committee 19 case may be re-examined by aforesaid Medical Member and again put up before the NOC Committee for necessary decision. 4 Akanksha Young The case is re-submitted for Yes 06/08/20 Professional consideration of the NOC 19 Committee as per the observation of NOC Committee medical expert on 26.07.2019. Approved noting is uploaded in any other document column. 5 Sanjay Barshilia Director As recommended by NOC Yes 26/08/20 Programme Committee, NOC be issued. 19
The above statement titled as "NOC Committee remarks" is tendered by Mr.Sharma which is taken on record and marked "X-2" for identification.
12. Perusal of the above statement clearly shows that none of the members of the committee which includes medical experts have applied their mind to the medical condition of the adoptive parents. There is no remark on the medical condition of the adoptive father. Apart from there being no comment there is no study as to how this medical condition would affect the patient and as to whether this would have any bearing on the child who would be taken in adoption.
13. On a perusal of the above remarks of the committee and the statement as made by Mr.Ashutosh Sharma, Assistant Director of CARA today before the Court, it appears that the entire exercise which is undertaken by Dr.Jagannath Pati, Joint Director, CARA to issue a NOC on 14 August 2019 is without application of mind. This is totally an unsatisfactory approach on the part of a public body which is concerned with such significant duties under the Act which are aimed to achieve the best interest and welfare of the minor. Innocent Indian children cannot be granted in adoption to foreign adoptive parents when on record there are serious doubts on medical condition of the adoptive parents. On such a situation of serious incertitude it is an onerous obligation on CARA to carefully scrutinize the medical reports, get the same examined from more pvr 9 FAP-41-19 than two experts in the medical field, with an emphasis as to how the medical conditions of such adoptive parents would affect the child in adoption. In the present case the approach of CARA amounts to a neglect of the paramount interest of a minor age 3 years to be given in adoption.
14. It is so fortunate, that here not only learned Counsel for the petitioner, but also the Scrutiny Officer of Indian Council of Social Welfare were diligent in their obligation towards the Court to emphasize these issues for the Court to come to a proper conclusion, for orders to be passed on this petition. Things are now quite clear on record of total non application of mind not only by the NOC Committee of CARA but also of by Dr.Jagannath Pati in issuing NOC without considering the medical condition of the adoptive parents and more particularly of the adoptive father. If such is to be the approach, it is a matter of serious concern for the Government to examine such laxities as thousands of such NOCs are issued by CARA, on which depends the fate of innocent children.
15. At the cost of repetition the remarks which are made by NOC committee clearly reflects that none of the medical issues of the adoptive father or even for that matter the adoptive mother are addressed. It appears to be quite a mechanical exercise by the Committee members in making their remarks. What is most glaring is that the final remarks were issued by Mr.Sanjay Barshilia, Director on 26 August 2019, however Dr.Jagannath Pati went ahead and issued the NOC on 14 August 2019 before the Director could approve and that too without application of mind in respect of any material.
16. In the above circumstances, now what is required for CARA is to comply the orders of this Court and to re-apply their mind to the situation in hand.
17. At this stage, Ms.Lata Patne, learned Counsel for CARA agreeing to these serious infirmities on instructions would state that it would be appropriate that Dr.Jagannath Pati is permitted to remain present before the Court on the adjourned date of hearing so that he can also address on issues and give his explanation on all these issues and the lapses which have taken place in the present case. Her suggestion is reasonable however considering the seriousness even Mr.Sanjay Barshilia, Director and Dr.Jagannath Pati shall remain present on the adjourned date of hearing with all records.
18. At this stage, Mr.O. Hareendran, Scrutiny Officer of Indian Council of Social Welfare has placed on record his comments in regard to the home study reports of authorized foreign adoption agency. He has also prepared additional representation in regard to the latest documents which are received by him. Copy of the same is also furnished to Ms.Lata Patne and Mr.Sharma who would also take the same into consideration. Further Ms.Lalita Jaya, learned Counsel for the petitioner has also placed on record her comments in regard to the public prosecutor's report dated 20 April 2014 and her comments on the home study report a copy of which is also being pvr 10 FAP-41-19 made available to Ms.Lata Patne. CARA would take into consideration all this material to come to further appropriate conclusion as to whether NOC would still stand.
19. At this stage, the Court would reserve its further orders to be passed to consider the lapses on the part of CARA as noted above.
20. As the things are disturbing, it would be appropriate that the things do not remain at the level of this matter and the concerned Ministry of the Central Government as also the Secretary of the Ministry of Woman and Child Development are also appraised of these issues. Accordingly, office is directed to forward copies of this order to the Secretary of the Ministry of Woman and Child Development, Government of India, New Delhi to appraise the Hon'ble Minister in the larger interest of adoption issues, and for appropriate remedial action to be taken in this regard.
21. Stand over to 14 February 2020 at 03.00 p.m.
22. Parties to act on an authenticated copy of this order."
3. On the backdrop of the above order Mr.Sanjay Barshilia, Director of Central Adoption Resource Authority (for short 'CARA') is present alongwith Dr.Jagannath Pati, Joint Director of CARA.
4. I have discussed with them and at length, the concerns as reflected in the earlier orders passed by this Court. Considering these issues, both the representatives from CARA agree that there are serious lapses in the present case and things were required to be handled more carefully and sensitively, considering the paramount interest of the innocent minor children who are to be placed in adoption with overseas adoptive parents. Both the said officers state that there is no specific medical report on the record of the CARA by which it can be said that the medical condition of the adoptive parents was carefully examined by the members of the NOC Committee of the CARA with the expected application of mind to the medical condition of both the parents.
5. In regard to the pre-issuance of the No Objection Certificate (NOC) dated 14 August 2019 and the subsequent remarks dated 26 August 2019 as made by Mr.Sanjay Barshilia (Director Programme, CARA), Mr.Barshilia has pointed out that he had issued an Online NOC on 14 August 2019 and pvr 11 FAP-41-19 accordingly a NOC was also issued by Dr.Jagannath Pati, Joint Director, CARA on the same date, he says that however, an entry to that effect was made by him on 26 August 2019. He states that there is surely an error in making the following remarks on 26 August 2019 :-
"As recommended by NOC Committee, NOC be issued"
He states that there is apparent error in the above remark "NOC be issued" as the NOC was already issued.
6. I am quite pained and disturbed to note such casual state of affairs as also the manner in which the record is being maintained. What is expected is that every application which is received by CARA is required to be scrutinised in a manner known to law with a dedicated conscious, full hearted and complete application of mind on all facets touching any proposal and more particularly to the medical condition of the adoptive parents. It is also expected that in regard to any medical issues of the adoptive parents, CARA would forward the medical reports to be examined by medical experts in the field, who would make their detailed report in relation to such medical conditions of the adoptive parents. These comments/observations on the medical condition should be in the context and with relevance to the future of the child to be given in adoption. Those reports ought to detail the expert medical opinion and contain their comments on the correct nature of the medical conditions. Mere making of remarks in a chart as being presently followed by CARA would certainly not be sufficient, and should be immediately discarded.
7. In the present case, there is nothing on record which would show that the medical condition of the adoptive parents is "at all examined" much less any attempt is made to have any detailed report of the medical conditions. The remarks of all the members of the NOC Committee also appear to be very casual. In fact report dated 19 July 2019 of Dr.Gouri Shankar Kaloiya, Associate Professor appears to have not been taken to its logical conclusion pvr 12 FAP-41-19 when she comments that the medical report of the mother needs to be reviewed by Dr.Arvind/ Professor Sheffali/ Professor Sood. However, Dr.Kaloiya has not commented at all on the medical condition of the adoptive father which appears to be more serious. None appears to have given any thought to this aspect.
8. Overlooking all these infirmities and serious lapses on the part of the NOC Committee of the CARA and the other responsible officers, in these circumstances, issuance of a NOC by CARA to give the child in adoption to the proposed adoptive parents, should not have been resorted, without a full proof scrutiny. Mr.Sanjay Barshilia, Director Programme, CARA, fairly informs that in this case CARA now intends to withdraw the No Objection Certificate issued on 14 August 2019. Be that as it may, it is for the CARA now to do the needful and if it intends to withdraw the NOC, the same be immediately informed to the petitioner-institution. This would also be beneficial to the child.
9. Considering what has happened in the present case and as noticed by the Court, things cannot be left as they stand. The anxiety is that this should not be the approach in the future cases to be considered by CARA. Mr.Barshilia, Director, CARA would agree that a proper mechanism can be put in place whereby each of such applications either of the foreign adoptive parents or of Indian adoptive parents are appropriately scrutinized and with utmost care and caution and a detailed report on each of the facets necessarily would be taken into consideration before granting NOC. This would be by inviting detailed medical reports which would discuss and comment on the medical condition of the Proposed Adoptive Parents, and the relevance of such medical condition to the future welfare and well being of the child to be given in adoption. Such reports should form an integral part of the file of such application, so that any Court in the Country while considering any such application, to grant children in adoption, would not have any difficulty and diffidence in proceeding with any adoption application. Such information and/ or all the reports including medical reports be also made available to the pvr 13 FAP-41-19 Children's institution so that such documents/reports form part of the petition to be filed by such institution alongwith the foreign and/or Indian adoptive parents. This would enable consideration of such reports while deciding such application by Courts.
10. Mr.Barshilia would also place all these issues for the consideration of the Secretary of the concerned department of the Government of India and under his guidance evolve an appropriate mechanism in this regard. He also submits that steps would be taken to form an appropriate expert medical panel and/or reconstituting the medical panel which also be discussed and considered by the Secretary.
11. In my opinion, it is imperative for CARA to take immediate remedial measures , significantly when the responsibility and obligation on CARA is extremely onerous namely to issue a NOC for minor innocent children to be given in adoption and before issuing such NOC it is incumbent that utmost care, scrutiny and diligence is exercised.
12. The Secretary, Ministry of Women & Child Development, Government of India should also evolve a mechanism to oversee and have random survey of functioning of CARA at all its levels by deputing appropriate officers from the Ministry, if such mechanism is already not operational. Apart from this CARA should forward monthly reports in regard to its activities to the Secretary of the Ministry. The concerned Ministry is free to evolve any other proper mechanism.
13. In this view of the matter, it is appropriate that the hearing of this petition be adjourned for six weeks so that the mechanism which CARA would now adopt in consultation with the Ministry, can be placed on record, on affidavit which be filed by Mr. Barshilia, Director of CARA in consultation with the appropriate Ministry.
pvr 14 FAP-41-19
14. Accordingly, stand over 26 March 2020. Mr.Barshilia and Dr.J. Pati
agree that they would attend the next hearing of this petition.
15. Let the affidavit be filed well in advance before the adjourned date of hearing.
16. Mr.Joshi to forward a copy of this order to the Secretary, Ministry of Women & Child Development, Government of India through the Joint Secretary & L.A. (Mumbai), Ministry of Law and Justice, Government of India, Aayekar Bhavan, Mumbai.
Digitally signed by Prashant Prashant V. Rane [G.S. KULKARNI, J.] V. Rane Date:
2020.02.22 17:37:26 +0530