Madras High Court
S. Banu vs Raghupathy, Principal Thriuvalluvar ... on 19 June, 2007
Author: R. Banumathi
Bench: P.K. Misra, R. Banumathi
ORDER R. Banumathi, J.
Page 1492
1. The petitioner has filed this HCP to produce the Petitioner's minor children Muthukumar and Muthulakshmi and hand over custody to the petitioner.
2. For appreciation of points, a brief narration of background facts is necessary. The petitioner is a Muslim widow and during 1985, she married one Solai, a cycle rickshaw man and they had three children. The eldest son by name Muthusami was born in 1986, second child was born in 1988 by name Muthukumar and third child was a girl child born during 1990 by name Muthulakshmi. During 1991, Petitioner's husband Solai, while removing a block in the drainage system, got drowned and died. The petitioner was impoverished, unable to feed and maintain the children. With the help of one Hussain, Assistant Engineer, Metro Water [MMWSSB], petitioner handed over custody of all three children with the first respondent in Thiruvallur Gurukulam, Saidapet, run by the first respondent.
3. The petitioner along with the said Hussain and Dass, visited the Gurukulam and met all three children consecutively for three months. It was ascertained from Chennai Metro Water Supply & Sewerage Board, a compensation of Rs. 1,02,156 was granted to the petitioners family for the death of her husband Solai and the entire amount was deposited with the Deputy Commissioner of Labour on 03.12.1993 for payment to the legal heirs of Solai. From 1993 onwards, the petitioner was in search of three children who were handed over at first respondent Thiruvalluvar Gurukulam.
4. According to the petitioner, during 1998, she retrieved her eldest son Muthusami from Thiruvalluvar Gurukulam, Kaliyampoondi, Uthiramerur. Page 1493 Case of the petitioner is that in the year 2001, she was diagonised with heart disease and she was making hectic effort to trace her children Muthukumar and Muthulakshmi and the first respondent refused to reveal the whereabouts of the children. The petitioner lodged a police complaint with J-1 Police Station, Saidapet, but the third respondent did not register the case nor inquired further. As the efforts to trace the children ended in vain, the petitioner filed this Habeas Corpus Petition.
5. As per the direction of the Court, a case was registered in Cr.No. 832/2006 and Central Crime Branch has taken up the investigation. Deputy Commissioner of Central Crime Branch has filed number of investigation reports to keep the Court informed about the progress of the investigation.
6. It came to be known that minor Muthukumar and Muthulakshmi were given in adoption to foreigners - Kenneth Porter and Vija Kuainis of USA. G.W.O.P. No. 22/1983 filed by their Power of Attorney - Sr. Rita Thyveetil on the file of the Principal District Court was ordered and the said adoptive parents were "permitted to take the children out of India to USA through their Power of Attorney, on condition". In GWOP, surrender document, said to have been executed by the first respondent, was produced as Ex.A-1. Other documents like child study report and other relevant documents were produced.
7. CONTENTION OF PARTIES:
Petitioner's case is that she never signed the Surrender Deed and was all along under the impression that the children were in the hostel. The learned Counsel for the petitioner has contended that if poverty was the reason for surrender, the petitioner would have surrendered all three children and not two kids. Assailing the inter-country Adoption, the learned Counsel for the petitioner has submitted that adoption was carried out through Sisters of the Cross Society for Education and Development [SOC SEAD] who had licence, as the fourth respondent Madras Social Service Guild [MASOS] did not have the licence. It is further submitted that it is not explained how a pavement dweller in Chennai, like the petitioner, could have contacted Ms. Ramani Jayakumar, a Canadian facilitator and why the adoption proceedings took at Trichi District Court while the alleged surrender is in Chennai. Drawing attention of the Court to news items and other criminal proceedings against the first Respondent, the learned Counsel for the petitioner has submitted that on account of questionable activities of MASOS Guild, its licence was under suspension from 1999 to 2001 and having regard to the conduct of MASOS Guild, suitable direction is to be given for production of the children.
8. Stating that the Petitioner's first child viz., Mohammed Gani aged six years [who is mentioned as Muthusami in the affidavit of the petitioner], was admitted in the Gurukulam on 08.06.1984, at Kaliyampoondi, Uthirarnerur and that his admission number was 1247, the first respondent has filed counter stating that the petitioner had taken away her first child on 02.06.1996 and thereafter, he did not have any contact Page 1494 with her children. It is further averred that as per the orders of Education and Social Welfare Department, children below the age of six years should not be admitted and hence, the other two children of the petitioner were not admitted in the Gurukulam and that the first respondent is no way connected with the whereabouts of the other two children.
9. Third respondent - Central Adoption Resources Agency [CARA] has filed detailed Counter Affidavit referring to the procedure of inter country adoption, which has been streamlined in the recent years.
10. Mainly relying upon surrender documents produced before the District Court, Trichy, fourth respondent - MASOS Guild has filed counter affidavit stating that Sisters of the Cross, Society for Education and Development filed GWOF No. 22/1993 before the District Court, Trichy seeking direction for inter country adoption. After following the procedure established by law and guidelines of the Supreme Court, District Court Trichy granted permission for inter country adoption. According to the fourth respondent, inter country adoption was through 5th respondent, who being a qualified and responsible social welfare officer, who is an Indian Program manager/contact person of Pacquette Children's Services - USA with the approval of Central Government Ministry of Social Justice and Empowerment, as per Supreme Court Guidelines.
11. We have heard the counsel appearing for parties. For appreciation of rival contentions, case records in G.W.O.P. No. 22/93 from District Court, Trichy was called for and we have perused the same.
12. Domestic and inter-country adoption have been the subject matter of innumerable directions by the Apex Court in public interest litigation mainly at the instance of Lakshmi Kant Pande. Those are cases where foundings, orphans or children born to unwed mothers are given to the custody of guardians through the process of Court under the provisions of Guardians and Wards Act, 1890, for their fostering by those guardians/adoptive parents. [Vide Lakshmi Kant Pandey v. Union of India ; Lakshmi Kant Pandey v. Union of India ; Lakshmi Kant Pandey v. Union of India ; Karnataka State Council for Child Welfare v. Society of Sisters of Charity ST. Gerosa Convent ; Sumanlal Chhotelall Kamdar v. Miss Asha Trilokbhai Saha ; Indian Page 1495 Council Social Welfare v. State of A.P. ; Lakshmi Kant Pandey v. Union of India ; Anoksha v. State of Rajasthan ].
13. In AIR 2805 SC 4375 - St. Therasas Tender Loving Care Home and Ors. v. State of Andhra Pradesh, Supreme Court has elucidated the essence of the directions given in Lakshmi Kant Pandey's case , which is as follows:
1. Every effort must be made first to see if the child can be rehabilitated by adoption within the country and if that is not possible, then only adoption by foreign parents, or as it is sometimes called "inter-country adoption" should be acceptable.
2. Such inter-country adoption should be permitted after exhausting the possibility of adoption within the country by Indian parents.
3. There is a great demand for adoption of children from Indian and consequently there is increasing danger of ill-equipped and sometimes even undesirable organizations or individuals activising themselves in the field of inter country adoption with a view to trafficking in children.
4. Following are the requirements which should be insisted upon so far as a foreigner wishing to take a child in adoption is concerned. In the first place, every application from a foreigner desiring to adopt a child must be sponsored by a social or child welfare agency recognized or licensed by the Government of the country in which the foreigner is resident. No application by a foreigner for taking a child in adoption should be entertained directly by any social or welfare agency in India working in the area of inter-country adoption or by any institution or centre or home to which children are committed by the Juvenile Court. This is essential primarily for three reasons.
Firstly, it will help to reduce, if not eliminate altogether, the possibility of profiteering and trafficking in children, because if a foreigner were allowed to contact directly agencies or individuals in India for the purpose of obtaining a child in adoption, he might, in his anxiety to secure a child for adoption, be induced or persuaded to pay any unconscionable or unreasonable amount which might be demanded by the agency or individual procuring the child. Secondly, it would be almost impossible for the Court to satisfy itself that the foreigner who wishes to take the child in adoption would be suitable as a parent for the child and whether he would be able to provide a stable and secure family life to the child and would be able to handle transracial, transcultural and transnational problems likely to arise from such Page 1496 adoption, because, where the application for adopting a child has not been sponsored by a social or child welfare agency in the country of the foreigner, there would be no proper and satisfactory home study report on which the Court can rely. Thirdly, in such a case, where the application of a foreigner for taking a child in adoption is made directly without the intervention of a social or child welfare agency, there would be no authority or agency in the country of the foreigner who could be made responsible for supervising the progress of the child and ensuring that the child is adopted at the earliest in accordance with law and grows up in an atmosphere of warmth and affection with moral and material security assured to it. The record shows that in every foreign country where children from India are taken in adoption, there are social and child welfare agencies licensed or recognized by the Government and it would not therefore cause any difficulty, hardship or inconvenience if it is insisted that every application from a foreigner for taking a child in adoption must be sponsored by a social or child welfare agency licensed or recognized by the Government of the country in which the foreigner resides. It is not necessary that there should be only one social or child welfare agency in the foreign country through which an application for adoption of a child may be routed; there may be more than one such social or child welfare agency, but every such social or child welfare agency must be licensed or recognized by the Government of the foreign country and the Court should not make an order for appointment of a foreigner as guardian unless it is satisfied that the application of the foreigner for adopting a child has been sponsored by such social or child welfare agency.
5. The position in regard to biological parents of the child proposed to be taken in adoption, has to be noted. What are the safeguards which are required to be provided insofar as biological parents are concerned? We may make it clear at the outset that when we talk about biological parents, we mean both parents if they are together or the mother or the father if either is alone. Now it should be regarded as an elementary requirement that if the biological parents are known, they should be properly assisted in making a decision about relinquishing the child for adoption, by the institution or centre or home for child care or social or child welfare agency to which the child is being surrendered. Before a decision is taken by the biological parents to surrender the child for adoption, they should be helped to understand all the implications of adoption including the possibility of adoption by a foreigner and they should be told specifically that in case the child is adopted, it would not be possible for them to have any further contact with the child. The biological parents should not be subjected to any duress in making a decision about relinquishment and even after they have taken a decision to relinquish the child for giving in adoption, a further period of about three months should be allowed to them to reconsider their decision.
Page 1497
6. But in order to eliminate any possibility of mischief and to make sure that the child has in fact been surrendered by its biological parents, it is necessary that the institution or centre or home for child care or social or child welfare agency to which the child is surrendered by the biological parents, should take from the biological parents a document of surrender duly signed by the biological parents and attested by at least two responsible persons and such document of surrender should not only contain the names of the biological parents and their address but also information in regard to the birth of the child and its background, health and development.
But where the child is an orphan, destitute or abandoned child and its parents are not known, the institution or centre or home for child care or hospital or social or child welfare agency in whose care the child has come, must try to trace the biological parents of the child and if the biological parents can be traced and it is found that they do not want to take back the child, then the same procedure as outlined above should as far as possible be followed. But if for any reason the biological parents cannot be traced, then there can be no question of taking their consent or consulting them. It may also be pointed out that the biological parents should not be induced or encouraged or even be permitted to take a decision in regard to giving of a child in adoption before the birth of the child or within the period of three months from the date of birth. This precaution is necessary because the biological parents must have reasonable time after the birth of the child to take a decision whether to rear up the child themselves or to relinquish it for adoption and moreover it may be necessary to allow some time to the child to overcome any health problems experienced after birth.
7. 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 Research 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. Every social or child welfare agency taking children under its care can then be required to send to such Central Adoption Resource Agency the names and particulars of children under its care who are available for adoption and the names and particulars of such children can be entered in a register to be maintained by such Central Adoption Resource Agency.
14. In order to facilitate the implementation of the norms in terms of Supreme Court's direction in Lakshmi Kant Pandey's case, Central Adoption Resource Agency [CARA], was formed and it published Guidelines for Adoption from Page 1498 India, 2006. The said guidelines govern the procedure of inter-country adoption and has mandated strict procedural safeguards in case of all inter country adoption such as Home Study Report of the foreign prospective adoptive parents, undertaking from the enlisted agency/central authority sponsoring cases of foreign parents and follow up reports for a period of two years or until such time as the legal adoption is completed and citizenship is acquired in the receiving country.
15. In the matter of adoption in India, CARA issues 'No Objection Certificate' based on the documents which are both child and prospective adoptive parents related. CARA examines documents such as Child Study Reports, Surrender Deeds, in case of surrendered children or abandonment certificate declaring a child free for adoption by Child Welfare Committee [earlier it was Juvenile Justice Board], issues such as priority to domestic adoption, Home Study Report of the Prospective Adoptive Parents, undertaking from the foreign enlisted agency/central authority to take responsibility of the child in case of disruption and regular process reports etc. The Home Study of the foreign prospective adoptive parents include a number of documents supporting the eligibility of the parents for adopting a child from India.
16. Under these guidelines, every State has Voluntary Coordinating Agency [VCA] to coordinate and oversee adoptions. In some states, VCA is a non-governmental organization and in some other States, the Department of Woman and Child Development/Social Welfare Department is VCA. Several guidelines have been issued from time to time.
17. In this case, the prospective adoptive parents -Kenneth Porter and Vija Kuainis represented by their Power of Attorney - Sr. Rita Thyveetil - Coordinator [SOC3EAD] have filed GWOP No. 22/1993 seeking permission of the Court for inter-country adoption. In consideration of the documents, Principal District Court, Trichy has allowed the Petition permitting the petitioners to take the children -minors Muthulakshmi and Muthukumar out of India to USA through their Power of Attorney, on condition that 'the children should be brought up by them as their own and quarterly progress report is to be submitted to the Court'. It is stated that there had been compliance of norms and procedure. But the Petition pleads ignorance of the said GWOP and she denies genuineness of the alleged surrender deed.
18. Be that as it may, in the background of allegations and counter allegations, and having regard to the criminal cases registered, we find that the accusations relate to cheating / manipulations / fabrications of documents. Since criminal case is registered in Cr.No. 832/2006 and investigation is under progress, we do not propose to go deep into the matter, lest it would amount to expressing our views on the merits, which might affect the ongoing investigation and rival contentions of parties. In such view of the matter, we direct the Central Crime Branch to proceed with the investigation in a fair and impartial manner and file the final report and keep the petitioner informed of the further progress of the investigation. Page 1499 The petitioner is at liberty to seek appropriate remedy against the first Respondent before the appropriate forum, if she is so advised.
19. Keeping in view the guidelines laid by the Supreme Court, in Lakshmi Kant Pandey's case, we deem it fit to issue the following directions:
1) The Central and State Government shall ensure strict compliance of the directions given by the Supreme Court in various cases by ensuring and monitoring at various levels of inter-country and intra-country adoption;
2) While permitting any organization to keep a child or to give him or her in adoption, the credentials of the organization are to be monitored/scrutinized.
3) In cases of complaints, the District Social Welfare Officer shall hold public hearing into complaints and conduct enquiry; and in cases of questionable documents relating to adoption, direct the parties to approach the Police, if needed, to seek assistance from Legal Services Authority of the concerned District.
4) When prima facie case is made out raising doubts as to genuineness of adoption and documents, the District Social Welfare Officer himself shall refer to matter to the police for investigation.
5) When Adoption O.P. is filed in District other than the District where the child was surrendered by the biological parents, granting permission for adoption and allowing Guardian OP is not to be automatic. In such cases, OP is filed in District Court. The District Judge shall enquire the background of the child given in adoption and the reason for filing Guardian O.P. in different District. In such cases, the District Judge shall address the District Social Welfare Officer/Licensing Agency of the District, in which the child was surrendered to the agency authorized to give in adoption and the District Judge shall call upon the District Social Welfare Officer to send a report as to the background of the child given in adoption and the reason for filing Guardian OP in a different District.
6) The Courts shall strictly ensure follow up progress of the children by directing filing of Quarterly Progress. In case of non-compliance, issue notice to the parties and inquire and the Court shall satisfy about the proper fostering of the child.
20. With the above directions and observations, the HCP Ls disposed of.