Dr.Kamal Ahuja & Another vs Child Welfare Council Punjab on 10 May, 2012

[Cites 24, Cited by 1]

Punjab-Haryana High Court

Dr.Kamal Ahuja & Another vs Child Welfare Council Punjab on 10 May, 2012

1. The present appeal which has been filed by the plaintiffs who are husband and wife is against the concurrent findings of the Courts below whereby their suit for declaration that they are adoptive parents of the minor girl child now called, Hema Ahuja, born on 18.03.2008 and adopted vide registered adoption deed dated 29.04.2008 by the plaintiffs has been dismissed by the Courts below. The plaintiffs also prayed for declaration against the Child Welfare Council, Punjab that they are entitled to a birth certificate in the name of Hema Ahuja from the record of the Registrar of Birth, SAS Nagar, Mohali for the purpose of education and for admission in school and institutions anywhere in the world.

2. The following question of law arise for consideration in the present appeal:

Whether the directions issued by the Hon'ble Apex Court in the case of Lakshmi Kant Pandey Vs. Union of India AIR 1992 SC 118 are applicable to the children who are adopted by Indian couples living abroad and who want them to be taken out of country?

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3. The case of the plaintiffs is that they are Hindus of Indian origin and governed in personal matters pertaining to their family affairs such as marriage, succession, inheritance by the Hindu Adoption and Maintenance Act, 1956 notwithstanding that they were living abroad and being Non Resident Indians for the last several years. It was pleaded that the plaintiff No.1 is a qualified Doctor and possessed MBBS and MD degrees from Banaras Hindu University (India) and keeping the position of Senior Specialist (Surgery) in a premier hospital in the Sultanate of Oman and though working outside India, was maintaining NRI account No.091010100153928 in AXIS Bank, New Delhi branch and was pursuing the suit through his special power of attorney, Dr.Alka Grover Ahuja, his wife. Similarly, it was alleged that his wife, plaintiff No.2 was aged about 42 years and was highly qualified and possessed MBBS and MD degrees from Panjab University, Chandigarh and an alumni of the Christian Medical College, Ludhiana and was working in the hospital in Sultanate of Oman along with her husband. She was, for the last 3 years, pursuing on the job of Super Specialty Studies in Ireland and leading to the award of Post-graduate European Diploma in Intensive Care Medicine. The wife was also maintaining an NRI account No.10557362265 in the State Bank of India, Sector 17, Chandigarh branch and was currently residing in her parents house bearing No.3060, Phase VII, SAS Nagar, Mohali, Punjab. The plaintiff couple had been married for quite sometime and no child had been born out of the wed-lock and they were issueless, and therefore, wanted to adopt a child from India preferably a female child.

4. On 18.03.2008, a girl child named Rajwinder Kaur was born at Civil Hospital, Kharar, SAS Nagar, Mohali to one Mr.Balbir Singh and RSA No.3582 of 2011 3 Mrs.Balbir Kaur aged 25 years who were residents of Mandi Kharar, Tehsil Kharar, District SAS Nagar, Mohali and the date of birth of the child was recorded with the Registrar of Birth, SAS Nagar, Mohali. The said girl child was the 5th daughter of the said couple and therefore, they, finding it difficult to properly raise and educate her, were ready to give the girl in adoption and since the plaintiffs couple were desiring for adoption of a female child, a function was organised on 27.04.2008 in the presence of respectable neighbours and according to the customary norms and rituals, the child was put in the lap of plaintiff No.2 and was adopted by the plaintiff couple in accordance with the Hindu Law and the said adoption was further witnessed by adoption deed executed by the adoptive parents vide registered deed dated 29.04.2008 in the office of the Sub-Registrar, SAS Nagar, Mohali. It was, accordingly, pleaded that in terms of the provisions of Section 17 of the Hindu Adoption and Maintenance Act, 1956, the registered adoption deed was a conclusive proof of the adoption having taken place. It was further pleaded that as per the provisions of Section 14 of the Act, all the legal status was acquired by the family of the adoptive parents and the adopted child acquired all the legal rights in the family of the adoptive parents. The child was thereafter named as Hema Ahuja and public notice was also issued both in the classified column of 'Hindustan Times' and the vernacular daily of Punjabi 'Rojana Spokesman' of Chandigarh of even date. In pursuance of the adoption deed, an Indian passport No.N1933208 was issued in the name of Hema Ahuja on 26.11.2008. It was further pleaded that though the child was given in adoption but the plaintiffs being NRI's, intended to take the child out of the country and therefore, for the purpose of immigration law of the Sultanate of RSA No.3582 of 2011 4 Oman, Ireland, apart from the registration deed, a declaration was required by a Court of competent jurisdiction in view of the judgments of the Hon'ble Apex Court in Lakshmi Kant Pandey Vs. Union of India AIR 1984 SC 469 (1) and further directions having been laid down in Laxmi Kant Pandey Vs. Union of India & another AIR 1986 SC 272 & Laxmi Kant Pandey Vs. Union of India AIR 1987 SC 232 (1). It was further pleaded that as per the direction of the Hon'ble Apex Court, notice of the proceedings could not be given to the biological parents and the paramount consideration of welfare of the child was to be seen and accordingly, the birth certificate in the name of minor child whereby she was shown as daughter of Mr. & Mrs.Balbir Singh was required to be replaced with a fresh certificate containing her changed particulars. It was, accordingly, pleaded that since adoption had taken place within the territorial jurisdiction of the Court at SAS Nagar, Mohali, therefore, the Court was competent to try the suit and since the adoptive parents wanted to take the child outside the country, a declaration was required.

5. A short written statement was filed on behalf of the Child Welfare Council, Punjab whereby it was pleaded that it was one of the State branches of the Indian Council for Child Welfare, 4 Deen Dyal Upadhya Marg, New Delhi and in view of the law laid down by the Hon'ble Apex Court in the case of Lakshmi Kant Pandey (supra) in the matters of inter- country and/or in-country adoptions, it is functioning as a Scrutinizing Agency in the State of Punjab and to assist the Court as an expert body being the premier child welfare institution operating in the State of Punjab. The reply mentions that after process had been received from the Court, home study of the family of the adoptive parents was conducted so as to RSA No.3582 of 2011 5 ascertain that the child had assimilated in the adoptive family as it is the interest and welfare of the child which was paramount and the plaintiff was asked to produce her original documents of her marriage certificate, her passport, special power of attorney issued by her husband and copy of the marriage registration certificate of plaintiffs No.1 & 2. The Council pleaded that the plaintiff couple were Hindus and the child's biological parents were Sikh and governed by Hindu law and the registered adoption deed was conclusive proof as per Section 16 of the Hindu Adoption & Maintenance Act, 1956 and as per Section 14 of the Act, the child had severed her relationship with her natural parents. It was, accordingly, pleaded that the paramount interest and welfare of the minor child, intended to be adopted, was to be taken into consideration and the biological parents need not be issued any notice in order to avoid the growth of the child as a split personality. The plaintiff couple were stated to be highly qualified professionals and gainfully employed abroad and had preferred to adopt the female child, and therefore, the photographs attached with the reply showed that the child was rehabilitated in the family of the adopted parents. It was, accordingly, averred that the declarative relief sought by the plaintiff couple and the declaration qua her right to have a birth certificate in the name of Hema Ahuja and Dr.Alka Grover Ahuja was there in view of the directions of the Hon'ble Apex Court in AIR 1992 SC 118.

6. On 07.09.2009, the trial Court, while framing the issue, noticed that since the defendant had admitted the case of the plaintiffs, therefore, on the basis of admission under Order 12 Rule 6 Code of Civil Procedure, a judgment of admission is permitted and there was no need of recording evidence since the parties were not at issue, by recording the statement of RSA No.3582 of 2011 6 counsel for the plaintiffs and passing an order.

7. The Civil Judge, (Jr.Divn.), SAS Nagar, Mohali, however, dismissed the suit on the following grounds:

"(i) Firstly, the plaintiffs have failed to prove that whether the parents, from whom the plaintiffs have taken the child in adoption are biological parents of the child or not.

(ii) Secondly, this Court finds no merits in the plaintiffs case, as the parents of the child are not made party to this suit.

Hence for non-joinder of necessary party, this issue is decided against the plaintiffs.

(iii) Thirdly, the plaintiffs filed this suit for declaration only. But as per Section 34 of the Specific Relief Act, consequential relief is necessary ingredient, which is not claimed by the plaintiffs.

(iv) Fourthly, the plaintiffs have made the answering defendant as party which in their written statement have admitted the claim of the plaintiffs, but no document is produced on record to show that whether the answering defendant is a registered or not."

8. The said judgment and decree dated 09.09.2009 was accordingly challenged before the lower appellate Court at SAS Nagar Mohali which has also been dismissed on the ground that once the plaintiffs have become the adoptive parents, they can take the child to any place wherever they like and there is no question of seeking permission of the Court in this regard and the passport had already been issued and for what purpose the declaration had been filed. Resultantly, the application filed by the natural parents to get over the legal hitch was also not taken into consideration under Order 1 Rule 10 CPC and it was held that no person or authority ever denied the legal character or status of the plaintiffs and the suit against the Child Welfare Council was not maintainable and the appeal was accordingly, dismissed.

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9. Resultantly, the present regular second appeal has been filed pleading that the adoptive parents who are NRIs have difficulty in bringing up the child as no authority was wanting to grant VISA without the declaration of the Court and there was no objection from any person and it was admitted fact that the plaintiffs had followed the correct procedure and taken the child on adoption and with proper adoption deed.

10. Admittedly, the whole suit of the plaintiff-appellants was based in view of the directions issued by the Hon'ble Apex Court in Lakshmi Kant Pandey's case (supra) from 1984 till 1992 in 4 separate judgments which have been supplementary to the earlier orders. It is, however, unfortunate that both the Courts below have decided the lis without taking into consideration the sensitivity of the issue and the welfare of the child and the Courts below have proceeded to adopt the technical approach as not to take the onus upon themselves regarding the welfare of the child without taking into consideration that a decent family life of love, care and attention of the parents and the basic necessities of life, of good food, health, care and education are being denied to the minor child in view of the approach adopted by them. It is pertinent to note that the initial directions of the Hon'ble Apex Court in AIR 1984 SC 469 (1) was on the basis of the written statement filed by the Indian Council of Social Welfare in response to the notice issued by the Hon'ble Supreme Court and the issue for consideration was since there was no satisfactory enactment provided for adoption of children by foreign parents and for laying down the procedure in such cases. The Hon'ble Apex Court at that point of time noticed that the provisions of the Guardians and Wards Act, 1890 was being violated and applications were filed before the Courts and certain High Courts had notified rules and RSA No.3582 of 2011 8 instructions. It was specifically held that in the first set of directions, the Court was not concerned with adoption of children living with their biological parents. The relevant directions are reproduced as under:

"11. We may make it clear at the outset that we are not concerned her with cases of adoption of children living with their biological parents, for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents. It is only in those cases where the children sought to be taken in adoption are destitute or abandoned and are living in social or child welfare centres that it is necessary to consider what normative and procedural safeguards should be forged for protecting their interest and promoting their welfare."

11. Accordingly, the directions which were thus issued were in cases of applications of adoptions of destitute Indian children by foreigners. In such inter-country adoptions, it was held that the adoption should be at the earliest possible so that the child gets assimilated and integrated in the new environment. Accordingly, it was also noticed that while following the procedure, no notice should be issued to the biological parents of the child as it would entail hardship and the parents would follow the child or even try to extort money from the adoptive parents. The order of appointing guardian of a child was to be intimated to the Ministry of Social Welfare, Government of India and the Ministry of Social Welfare of the Government of State where the Court is situated. Relevant paragraphs reads as under:

"21. We may also point out that if a child is to be given in inter-country adoption, it would be desirable that it is given in such adoption as far as possible before it completes the age of 3 years. The reason is that if a child is adopted before it attains the age of understanding, it is always easier for it to get assimilated and integrated in the new environment in which it may find itself on being adopted by a foreign parent.

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Comparatively it may be somewhat difficult for a grown up child to get acclimatized to new surroundings in a different land and some times a problem may also arise whether foreign adoptive parents would be able to win the love and affection of such grown up child. But we make it clear that when we say this, we do not wish to suggest for a moment that children above the age of three years should not be given in inter-country adoption. There can be no hard and fast rule in this connection. Even children between the ages of 3 and 7 years may be able to assimilate themselves in the new surroundings without any difficulty and there is no reason why they should be denied the benefit of family warmth and affection in the home of foreign parents, merely because they are past the age of 3 years. We would suggest that even children above the age of 7 years may be given in inter- country adoption but we would recommend that in such cases, their wishes may be ascertained if they are in a position to indicate any preference. The statistics placed before us show that even children past the age of 7 years have been happily integrated in the family of their foreign adoptive parents.

22. Lastly, we come to the procedure to be followed by the court when an application for guardianship of a child is made to it. Section 11 of the Guardians and Wards Act, 1890 provides for notice of the application to be issued to various persons including the parents of the child if they are residing in any State to which the Act extends. But, we are definitely of the view that no notice under this section should be issued to the biological parents of the child, since it would create considerable amount of embarrassment and hardship if the biological parents were then to come forward and oppose the application of the prospective adoptive parent for guardianship of the child. Moreover, the biological parents would then come to know who is the person taking the child in adoption and with this knowledge they would at any time be able to trace the whereabouts of the child and they may try to contact the child resulting in emotional and psychological disturbance for the child which might affect his future happiness. The possibility also cannot be ruled out that if the RSA No.3582 of 2011 10 biological parents know who are the adoptive parents they may try to extort money from the adoptive parents. It is therefore absolutely essential that the biological parents should not have any opportunity of knowing who are the adoptive parents taking the child in adoption and therefore notice of the application for guardianship should not be given to the biological parents. We would direct that for the same reasons notice of the application for guardianship should also not be published in any newspaper. Section 11 of the Act empowers the court to serve notice of the application for guardianship on any other person to whom, in the opinion of the court, special notice of the application should be given and in exercise of this power the Court should, before entertaining an application for guardianship, give notice to the Indian Council of Child Welfare or the Indian Council for Social Welfare or any of its branches for scrutiny of the application with a view to ensuring that it will be for the welfare of the child to be given in adoption to the foreigner making the application for guardianship. The Indian Council of Social Welfare or the Indian Council of Child Welfare to which notice is issued by the Court would have to scrutinise the application for guardianship made on behalf of the foreigner wishing to take the child in adoption and after examining the home study report, the child study report as also documents and certificates forwarded by the sponsoring social or child welfare agency and making necessary enquiries, it must make its representation to the Court so that the Court may be able to satisfy itself whether the principles and norms as also the procedure laid down by us in this judgment have been observed and followed, whether the foreigner will be a suitable adoptive parent for the child and the child will be able to integrate and assimilate itself in the family and community of the foreigner and will be able to get warmth and affection of family life as also moral and material stability and security and whether it will be in the interest of the child to be taken in adoption by the foreigner. If the court is satisfied, then and then only it will make an order appointing the foreigner as guardian of the child and RSA No.3582 of 2011 11 permitting him to remove the child to his own country with a view to eventual adoption. The Court will also introduce a condition in the order that the foreigner who is appointed guardian shall make proper provision by way of deposit or bond or otherwise to enable the child to be repatriated to India should it become necessary for any reason. We may point out that such a provision is to be found in clause 24 of the Adoption of Children Bill No. 208 of 1980 and in fact the practice of taking a bond from the foreigner who is appointed guardian of the child is being followed by the Courts in Delhi as a result of practice instructions issued by the High Court of Delhi. The order will also include a condition that the foreigner who is appointed guardian shall submit to the Court as also to the Social or Child Welfare Agency processing the application for guardianship, progress reports of the child along with a recent photograph quarterly during the first two years and half yearly for the next three years. The Court may also while making the order permit the social or child welfare agency which has taken care of the child pending its selection for adoption to receive such amount as the Court thinks fit from the foreigner who is appointed guardian of such child. The order appointing guardian shall carry, attached to it, a photograph of the child duly counter- signed by an officer of the Court. This entire procedure shall be completed by the Court expeditiously and as far as possible within a period of two months from the date of filing of the application for guardianship of the child. The proceedings on the application for guardianship should be held by the Court in camera and they should be regarded as confidential and as soon as an order is made on the application for guardianship the entire proceedings including the papers and documents should be sealed. When an order appointing guardian of a child is made by the court, immediate intimation of the same shall be given to the Ministry of Social Welfare, Government of India as also to the Ministry of Social Welfare of the Government of the State in which the Court is situate and copies of such order shall also be forwarded to the two respective ministries of Social Welfare. The Ministry of Social Welfare, Government RSA No.3582 of 2011 12 of India shall maintain a register containing names and other particulars of the children in respect of whom orders for appointment of guardian have been made as also names, addresses and other particulars of the prospective adoptive parents who have been appointed such guardians and who have been permitted to take away the children for the purpose of adoption. The Government of India will also send to the Indian Embassy or High Commission in the country of the prospective adoptive parents from time to time the names, addresses and other particulars of such prospective adoptive parents together with particulars of the children taken by them and requesting the Embassy or High Commission to maintain an unobtrusive watch over the welfare and progress of such children in order to safeguard against any possible maltreatment, exploitation or use for ulterior purposes and to immediately report any instance of maltreatment, negligence or exploitation to the Government of India for suitable action."

12. Thereafter, in AIR 1986 Supreme Court 272, further directions were issued that the Indian Council of Child Welfare had performed very creditably along with the Indian Council of Social Welfare and therefore, would continue to scrutinize the work allotted to them apart from other scrutinizing agency which could be employed for this purpose. But their role should be different from placement agencies for placing the child for adoption. The primary responsibility of the scrutinizing agency being that it should make necessary enquiries whether the child is voluntarily relinquished by the biological parents and they were legally free for adoption and if the Court felt some doubt, it may ask the scrutinizing agency to make enquiries. The relevant paragraph reads as under:

"5. The third point raised in these applications relates to the role which a scrutinizing agency is expected to play in the procedure relating to inter-country adoptions. There was RSA No.3582 of 2011 13 considerable debate before us on this point and after carefully considering the various arguments, we are of the view that the scrutinizing agency should not be asked to make any inquiries before a child is offered in adoption to a foreigner or a petition for appointment of a foreigner as guardian is filed in court. The primary responsibility for ensuring that the child is legally free for adoption must be that of the social or child welfare agency processing the application of the foreigner for guardianship of the child. Whatever inquiries are necessary for the purpose of satisfying itself that the child has been voluntarily relinquished by its biological parents after understanding all the implications of adoption as envisaged in paragraph 14 of our Judgment must be the responsibility of the social or child welfare agency processing the application for guardianship. We have already laid down sufficient safeguards in this connection in paragraph 18 of our Judgment and it is not necessary to say anything more about it. But so far as the scrutinizing agency is concerned, it should not come into the picture at this stage. It has a vital role to play after a foreigner has approved of the child to be taken in adoption and a petition is filed in court for appointment of the foreigner as guardian of the child and it is at that stage that the scrutinizing agency is expected to assist the Court in coming to the conclusion whether it would be in the interest of the child to be given in adoption to the foreigner. The scrutinising agency should not at that stage try to ascertain who are the biological parents of the child and whether they are willing to take back the child. That is primarily the responsibility of the social or child welfare agency processing the application and that is why we have insisted in our Judgment it is only a social or child welfare agency recognised by the Government which should be entitled to process the application for guardianship and recognition must be given by the Government only after considering whether such social or child welfare agency enjoys good reputation and is known for its work in the field of child care and welfare and whether it has proper staff with professional social work experience. The Court should, in order to make RSA No.3582 of 2011 14 sure that the child is legally free for adoption, require the social or child welfare agency processing the application to place material before the Court stating what efforts have been made to trace the biological parents and what are the circumstances in which the child came into the possession of such social or child welfare agency. Where the Court feels some doubt as to how the child has been obtained and in what manner, the Court may ask the scrutinising agency to make inquiries with a view to finding out how the social or child welfare agency processing the application has got the child and if the child has been obtained by such social or child welfare agency from another institution or agency, how that institution or agency got the child and from what source and in what manner and the scrutinising agency may them make discreet inquiries for this purpose without disclosing to any one that the child is sought to be given in adoption. The Court may also in an appropriate case where it has some doubt ask the scrutinising agency to inquire whether the child has been voluntarily surrendered by the biological parents or whether such relinquishment has been obtained by fraudulent means. But unless the Court so directs, the scrutinising agency should not make any attempt to trace the biological parents of the child or to inquire whether they are willing to take back the child. We may also point out that the scrutinising agency should, while scrutinising the application, adopt a sympathetic and sensitive approach with indepth understanding of the dynamics of human behaviour."

13. It was also noticed by the Court that the trial Courts were not taking the cases of the appointment of guardians on a priority basis in spite of the directions issued by the High Courts and the High Courts were requested to exercise proper vigilance in this behalf. The relevant observations reads as under:

"16. Some social and child welfare agencies made a complaint before us that the proceedings for appointment of a prospective adoptive parent as guardian of the child drag on RSA No.3582 of 2011 15 for months and months in some district Courts and almost invariably they take not less than five to six months. We do not know whether this is true, but if it is, we must express our strong disapproval of such delay in disposal of the proceedings for appointment of guardian. We wish to impress upon the district Courts that proceedings for appointment of guardian of the child with a view to its eventual adoption, must be disposed of at the earliest and in any event not later than two months from the date of filing of the application. We would request the High Court to call for returns from the district Courts within their respective jurisdiction showing every two months as to how many applications for appointment of guardian are pending, when they were filed and if more than two months have passed since the date of their filing, when they have not been disposed of up to the date of the return. If any application for guardianship is not disposed of by the district Courts within a period of two months and there is no satisfactory explanation, the High Courts must take a serious view of the matter. We were also informed that some district Courts are treating applications for guardianship in a lackadaisical manner and are not scrupulously carrying out the directions given by us in our judgment. This defiance by the district Courts of the directions given by us should not be tolerated by the High Courts and we would request the High Courts to exercise proper vigilance in this behalf."

14. In the subsequent directions issued in AIR 1987 Supreme Court 232 (1), the directions were extended to even Hindu parents seeking to take child in adoption by holding that the directions issued would not relate to adoption by foreign parents, relevant paragraph of the same reads as under:

"4. This Court directed in paragraph 22 of the main judgment dated 6th February 1984(reported in AIR 1984 SC 469) that the notice of the application for guardianship should not be published in any newspaper and this was reiterated in the RSA No.3582 of 2011 16 Supplementary Judgment dated 27th September, 1985 (reported in Air 1986 SC 272), because otherwise the biological parents would come to know as to who are the parents taking the child in adoption. The question raised in the present application is as to whether this direction should be confined only to cases of adoption by foreign parents or it should be extended to cover cases where Hindu parents seek to take a child in adoption and make an application to the Court for that purpose. We are of the view that having regard to the object and purpose for which this direction has been given, it cannot be confined to the case of adoption by foreign parents. It must also cover the cases where Hindu Parents make an application under Section 9 sub-section (4) of the Hindu Adoptions and Maintenance Act, 1956. We would, therefore, clarify the direction given by us and direct that notice of an application under Section 9 sub- section (4) of the Hindu Adoptions and Maintenance Act, 1956 will also not be published in any newspaper. The present application will stand disposed of accordingly."

15. The Hon'ble Apex Court also held that where the child had been relinquished by his biological parents, there would be no need to release order for foreigners taking the adopted child abroad after adoption and that procedure would only be followed in the case of destitute children and in the cases, the Court would consider the appointment of foreigner as a guardian Court. The relevant para of the judgment reads as under:

"8. The second point raised on behalf of the applicants was in regard to the delay which is at present occurring in the procedure for giving a child in adoption to a foreigner in view of the time schedule fixed by the court in the main judgment dated 6th February, 1984 (reported in AIR 1984 SC 469) and the supplemental judgment dated 27th September 1985 (reported in AIR 1986 SC 272). The applicants contended that the entire process laid down by the court is a long- drawn out process running into a period of about 8 to 9 months and that would defeat the object of expedition in giving a child in RSA No.3582 of 2011 17 adoption. The applicants pointed out that under our judgments, where there is a child surrendered by the biological parents, a minimum period of three months is allowed to the biological parents to reconsider their decision and in case of an abandoned or destitute child, a period of three months is provided for the Juvenile Court, Social Welfare Department or the Collector to clear the child and declare it free for adoption and after the child is declared free for adoption, a maximum period of two months is provided to find an Indian family for the child--which period is now curtailed to three to four weeks-and thereafter it takes another four weeks in mail for sending the child study and medical reports to the sponsoring agency abroad for being handed over to the foreigner for his approval and awaiting the receipt of approval and then a further period of two months is allowed for the court to process the case and thereafter on an average it takes another month or more to get the passport and visa formalities completed. It thus takes about 8 to 9 months after the abandonment of the child before the child is able to join its adoptive parents. This is, according to the applicants, too long a period and the directions given by us should be modified with a view to curtailing this period. We agree that the point raised on behalf of the applicants deserves serious consideration. We would therefore direct that in cases where a child is relinquished by its biological parents or by an unwed mother under a Deed of Relinquishment executed by the biological parents or the unwed mother it should not be necessary to go through the Juvenile Court or the Social Welfare Department or the Collector to obtain a release order declaring the child free for adoption but it would be enough to produce the Deed of Relinquishment before the court which considers the application for appointment of a foreigner as guardian of the child. It is only where a child is found abandoned or is picked up as a destitute that the procedure of going through the Juvenile Court or the Social Welfare Department or the Collector would have to be adopted. As soon as abandoned or destitute child is found by a social or child welfare agency, a RSA No.3582 of 2011 18 report should be immediately lodged with the local police station along with a photograph of the child. The Inspector General of Police or the Commissioner of Police, as the case may be, should instruct every police station within his jurisdiction to immediately undertake an inquiry for the purpose of ascertaining and tracing the parents of the child in respect of which the report is made and such inquiry must be completed within one month of the report being lodged with the police station. Meanwhile, the social or child welfare agency, which has found the abandoned or destitute child may make an application to the Juvenile Court or to the Social Welfare Department or the Collector, as the case may be, for a release order declaring that the child is legally free for adoption and since the report the inquiry to be made by the police has under this direction to be completed within one month, it should be possible for the Juvenile Court or the Social Welfare Department or the Collector to make a release order declaring the child legally free for adoption within a period of five weeks from the date of making the application. If, as a result of the inquiry by the police the biological parents are traced, the Juvenile Court or the Social Welfare Department or the Collector, as the case may be, will issue a notice to the biological parents and give them an opportunity to reconsider their decision after explaining the implications of the child being declared legally free for adoption. But, this opportunity shall be availed of by the biological parents within a period of one week and no more. This procedure will considerably reduce the time taken up in giving an opportunity to the biological parents to reconsider their decision as also in getting the child cleared for adoption by the Juvenile Court or the Social Welfare Department or the Collector. Whilst the application for a release order is pending before the Juvenile Court or the Social Welfare Department or the Collector, the recognised placement agency which has found the child or to which the child is transferred by the social or child welfare agency finding the child, may proceed to explore the possibility of offering the child in adoption and the child may be offered simultaneously RSA No.3582 of 2011 19 to Indian parents as well as foreign parents, subject to the clearance of the child for adoption by the Juvenile Court or the Social Welfare Department or the Collector; The recognised placement agency need not wait until the release order is made by the Juvenile Court or the Social Welfare Department or the Collector, before offering the child in adoption, because otherwise even with the reduced time limit which we have now provided, it would take at least six weeks before the child can be offered in adoption. This time-lag of six weeks can be eliminated if the child is allowed to be offered in adoption even while the application for release order is pending and this would also eliminate the delay of about two months which would occur if the child is not allowed to be offered in adoption to the foreign parents until after the effort to find an Indian parent for the child has failed. If this procedure is followed, it should be possible to find an Indian parent or, failing that, a foreign parent to take the child in adoption within a period, of about 6 to 8 weeks from the time when the abandoned or destitute child is found by the concerned social or child welfare agency. We are informed that this procedure is already being followed in Bombay and, in our view, it should be adopted in all jurisdictions."

16. Keeping these directions by the Hon'ble Apex Court that the present case should have been decided, but as noticed, both the impugned judgments do not took into consideration the said directions. In fact, the lower appellate Court has totally misread the said judgments which would be clear from the reasoning given by the lower appellate Court whereby it has distinguished the said judgment of Lakshmi Kant Pandey (supra) on the ground that it only applied to the cases of children who are destitute or orphans and foreigners were required to make the applications. The relevant portion of the impugned judgment of the lower appellate Court reads as under:

"13. After giving my anxious thoughts to the contentions and RSA No.3582 of 2011 20 going through the record of the case, I am of the considered view that there is no merit in this appeal. The reliance placed upon the judgment of Hon'ble Supreme Court of India delivered in Laxmi Kant Pandey's case (supra) by the learned counsel for the appellants is wholly misconceived. In that judgment the Hon'ble Supreme Court of India delivered guidelines to be followed by the Courts at the time of dealing with the applications for appointing the foreigner as Guardian of the minor in order to enable him to take the minor child to foreign country with the purposes of adopting the child as per the law of his own country. The foreigner is required to make an application to the competent Court under the Guardian and Wards Act and there after the said application has to be dealt with by the Court in view of the guidelines laid down by the Hon'ble Supreme Court in Laxmi Kant Pandey's case (supra). Moreover those guidelines were issued to dealt with the cases of the child who are destitute or orphans and are offered to be given in adoption by the institute wherein they are being brought up. The said judgments do not apply to the cases wherein the child is given in adoption by his biological parents......

14. However in the instant case, the appellants have not moved an application under the Guardian and Wards Act for appointing them as Guardian of the minor child. The appellants are Hindus and they are Non Resident Indians. They have allegedly the minor daughter, who has been given to them in adoption by her biological parents. Even a registered adoption deed has allegedly been executed in this regard. Under these circumstances, they have become the adoptive parents of the minor childand they need not to seek any declaration from the Court in this regard. Being adoptive parents of the child, they can take the minor child to any place wherever they like and there is no question of seeking permission of the Court in this regard. They have allegedly got issued a passport in the name of minor child from the Govt. of India. It is not understandable as to for what purpose, the suit seeking declaratory decree in this regard, has been filed by the appellants. As per section 34 of RSA No.3582 of 2011 21 the Specific Relief Act, the declaratory suit can be filed against the person denying or having intention to deny the legal character or status of any one. However in this case, the suit has been filed against the Child Welfare Council Punjab. There is no allegation that the said institution ever denied the character or status of the plaintiffs/appellants. It is not made out that the said institution was ever interested in raising any dispute regarding the adoption of the child by the appellants. As per the judgment of Hon'ble Supreme Court in Laxmi Kant Pandey's case (supra), the petition under the Guardian and Wards Act in the case of inter-country adoption and that too of destitute or abandoned child can be filed by arraying Indian Council of Child Welfare or the Indian Council of Social Welfare or any of their branches as respondents. However as already mentioned above, the said guidelines do not apply to the instant case. The Child Welfare Council Punjab has got no concern with the adoption of the minor child by the appellants/plaintiffs. Under these circumstances, the suit seeking declaration against the Child Welfare Council Punjab is not maintainable and the same has rightly been dismissed by the learned trial Court. Even the application under Order 1 Rule 10 CPC filed by the natural parents of the minor child cannot help the appellants. Even the natural parents of the minor child have never raised any dispute in this regard, rather in their application, they have pleaded that they want that the suit may be decreed. When they have never disputed the factum of adoption, nor they were impleaded as defendants by the appellants, there is no question of impleading them as defendants or respondents in this appeal. When no body ever denied the rights, status or legal character of the appellants, there was no occasion for them to file this suit seeking declaration against the Child Welfare Council Punjab or even against the natural parents of the minor child. In case any person or authority assails their legal character or status qua the minor child, they can file declaratory suit by impleading the said person or authority as defendant. However the instant suit against the Child Welfare Council was not maintainable. There is no RSA No.3582 of 2011 22 question of passing declaratory decree as sought of by them, as no body has ever disputed their legal character, status or rights qua the minor child. Accordingly this Court is of the view that no ground for interference in the impugned decree and judgment is made out. Hence, the instant appeal is hereby dismissed with no order as to costs. Decree sheet be prepared. Lower Court record along with copy of this judgment be returned. File be consigned to the record room."

17. A Co-ordinate Bench of this Court on 26.09.2011 had asked the biological parent to be present in the Court and in compliance of the said orders, the said parents had come present on 04.10.2011 and thereafter, an application was filed to implead the natural parents of the child and this Court vide order dated 16.02.2012, impleaded Balbir Singh and Balbir Kaur, the natural parents of the child as respondents No.2 & 3 and material that the child was attending school where she was staying with the mother of plaintiff/appellant No.2 in SAS Nagar Mohali and studying in "Small Wonders School" was taken on record. The natural parents, respondents No.2 & 3 also were identified in Court and the factum of adoption of the child was verified from them. Thereafter, a direction was issued that appellant No.2, Dr.Alka Grover would be present in the Court along with the minor child on 20.03.2012, and accordingly, she appeared and her statement was also recorded separately.

18. This Court also observed the child on appearance in Court and with appellant No.2 and recorded to its satisfaction that the welfare of the child lay with appellants No.1 & 2 which was the paramount consideration and the said parents/appellants were better placed in life than the natural parents who had appeared on a earlier date separately. It is in the said circumstances that the present appeal is being decided keeping in view the RSA No.3582 of 2011 23 primary consideration that the welfare of the child has to be taken into consideration while deciding such sensitive issues and a technical approach, as has been adopted by the Courts below, cannot be appreciated.

19. Admittedly, there is a registered adoption deed dated 29.04.2008 in favour of the plaintiffs as noticed above. This Court has firstly interacted with the natural parents on 16.02.2012 and recorded its satisfaction that in what circumstances, they gave the girl child on adoption and the factum of adoption was verified from them. Thereafter, plaintiff/appellant No.2 was also called on a separate date, i.e., 20.03.2012 and her statement was recorded which reads as under:

"Statement of Dr.Alka Grover, Aged 45 years, R/o H.No.3060, Phase 7, Mohali at present residing at 58, Clearwater Court South Royal Canal Park, Ashtown, Dublin

- 15, Ireland.

At Present, I am residing at Ireland and my husband is posted in Oman and I shall be joining him after doing my Anesthesia training. The child, Hema Ahuja was born on 18.03.2008 to Mrs. & Mr.Balbir Singh and is their fifth daughter. She was adopted by my husband and me on 29.04.2008 vide registered adoption deed and her name has been changed to Hema Ahuja from Rajwinder Kaur. The child is staying with my mother at Mohali and is going to 'Small Wonders' school. We are having difficulty in taking the child abroad to our normal place of residence in view of the fact that the Embassies ask for a Court declaration to the effect that the child is adopted by us since the registered adoption deed is not taken into consideration by them, and therefore, the need of filing of the suit was felt. The welfare of the child is our basic concern, and therefore, we want that the child should be staying with us at our normal place of residence. My husband is also a Doctor and is working with Nizwa Hospital, Sultanate of Oman."

After interacting with the child and after being satisfied that the paramount RSA No.3582 of 2011 24 consideration that is the interest and welfare of the child had to be taken into consideration, the present reasoning is being resorted to.

20. In the present case, there is no doubt that the girl child has been given on adoption to the plaintiffs by registered adoption deed dated 29.04.2008 which has been placed on record and it is also admitted by the natural parents who have filed their affidavits in supports of their application wherein they have specifically stated that the child was the 5th child and they were finding it difficult to raise the child in future. The natural parents had also, in their affidavit, deposed that they had no objection if the regular second appeal is allowed and the plaintiffs were declared as adoptive parents of the child. Section 6 of the Hindu Minority and Guardianship Act, 1956 provides that the natural guardian in the case of a boy or an unmarried girl-the father, and after him, the mother and they will do all the acts for the benefit of the minor. Section 6 and 8 reads as under:

6 . Natural guardians of a Hindu minor.- The natural guardians of a Hindu, minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-

(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;

(c) in the case of a married girl-the husband;

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi) 8 . Powers of natural guardian.- (1) The natural guardian of a Hindu minor has power, subject to the provisions of this RSA No.3582 of 2011 25 section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the court,-

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular-

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof.

(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and

(c) an appeal lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub- section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.

(6) In this section, "Court" means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the RSA No.3582 of 2011 26 immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate." Section 9 of the Act further provides that Hindu father may, by Will, appoint a guardian for his minor legitimate child and Section 13 of the Act provides that the welfare of the minor is to be the paramount consideration. Section 9 & 13 of the Act reads as under:

"9 . Testamentary guardians and their powers.- (1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.

(2) An appointment made under sub-section (1) shall have not effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.

(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property or in respect of both.

(5) The guardian so appointed by will has the right to act as the minor's guardian after the death of the minor's father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.

RSA No.3582 of 2011 27

(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

13 . Welfare of minor to be paramount consideration.- (1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor."

21. Similarly, under The Hindu Adoption and Maintenance Act, 1956, the procedure of adoption is laid down in Chapter 2 and Section 8 provides where the Hindu female can take in adoption, a son or a daughter and with the consent of her living husband. Persons who are capable of giving in adoption are the father and the mother or the guardian of the child and under Sub-clause (5)of Section 9, the Court has to be satisfied that the adoption is for the welfare of the child after taking into consideration the wishes of the child having regard to the age and understanding of the child. Section 5, 8 & 9 reads as under:

"5. Adoptions to be regulated by this chapter (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provision shall be void. (2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the right of any person in the family of his or her birth.

8. Capacity of a female Hindu to take in adoption Any female Hindu :-

(a) Who is of sound mind, RSA No.3582 of 2011 28

(b) who is not a minor, and

(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.

9. Persons capable of giving in adoption (1) No person except the father or mother the guardian of a child shall have the capacity to give the child in adoption. (2) Subject to the provision of 1[sub-section (3) and sub- section (4)], the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu has been declared by a court of competent jurisdiction to be of unsound mind.

(3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

1[(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.] (5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction."

RSA No.3582 of 2011 29

Section 16 of the Act further provides that in view of a registered document relating to adoption, there will be a presumption that the document has been prepared in compliance with the provisions of the Act unless it is disproved. Section 16 reads as under:

16. Presumption as to registered documents relating to adoption Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.

22. From a perusal of the scheme of the two Acts and the directions issued by the Hon'ble Apex Court, it would be clear that it is the duty of the Courts to see that the paramount interest and welfare of the child has been taken into consideration and that the averments made had a semblance of truth and the biological parents had no objection to the said adoption. Once this was affirmed and the defendant is one of the scrutinizing agencies in the State of Punjab and was in a capacity to assist the Court as an expert body as laid down by the Hon'ble Supreme Court in Laxmi Kant Pandey's case (supra), the lower appellate Court was totally in error in holding that the Child Welfare Council, Punjab had no concern with the adoption of the minor child and that since the natural parents had never raised any dispute, therefore, the suit itself was not maintainable as the defendant was not contesting the same. The specific case of the plaintiff was that they sought a declaration for taking the child abroad so that they could give her admission to the school or institutions anywhere in the world. This dream of the plaintiffs was successfully suppressed by both the Courts below on RSA No.3582 of 2011 30 drawing a negative microscopic examination of the case. The child in this case, though produced in Court, as noticed above, was born on 18.03.2008, and therefore, being a little over 4 years, is not in a position to know what is good or bad for her and thus, the onus had shifted upon this Court to take the decision that the registered adoption deed has to be given effect for the welfare of the child so that the child can go along with her adoptive parents anywhere in the world to get better education and proper living which her biological parents could not give and on their own voluntary act, have relinquished the child to the plaintiffs. A Division Bench of the Karnataka High Court in somewhat similar situation in Society Of Sisters Of Charity, St.Gerosa Convent Vs. Nil 1991 (1) HLR 83 set aside an order of the Civil Judge by holding that it was left to them what is in store for the two children which were up for adoption. Relevant paragraphs of the judgment reads as under:

"6. In the peculiar circumstances of the case and further delay that is likely to occur in the event of our remanding the case to the Court of Civil Judge for its fresh disposal in the light of what we have said of various aspects requiring consideration in cases of the kind, we have considered it our duty to look into the material on record to satisfy ourselves whether good future is in store for the siblings if petitioners 2 and 3 are appointed as guardians and allowed to take the siblings to their Country for their eventual adoption, and proceed accordingly.

Petitioners 2 and 3, who are Head Master of a State Secondary School and a Teacher of a Lower Secondary School in Italy, look gracious when we see them in a photograph produced in the case. Their residential villa, as seen from the photograph produced in the case, looks grand and beautiful. In their substantive affidavit, which is filed in the Court, this is what they have said about their residential villa:

RSA No.3582 of 2011 31

"They are the owners of a residential villa, situated on a site of 970 m in Bassano Gr., 41, Mons. Rodolfi Street, composed of three floors, fifteen rooms, four bathrooms, a garage, a garden and a kitchen garden for a total value of lit 350,000,000 (three hundred fifty million lira)."

Banca Popolare of Marostica in its Declaration dated 18-10- 1988 produced in the case, states thus:

"We herewith state that Mr. and Mrs. - Prof. Cerantola Urbano born in Rosa on 5-1-1943 -Lunardon Mariella born in Bassano G. on 10-11-1948 are honest and solvent and their economic situation is solid."

The General Certificate Issued by the District Attorney for Bassano Del Grappa declares that the said persons are without any criminal record. The President of the Region of Veneto has declared in an affidavit sent to the Court, thus:

"that he knows Mr. Cerantola Urbano and Mrs. Lunardon Mariella personally and he can vouch for their social behaviour and quality of life.

The above-mentioned couple is fully part of our community which is not racially prejudiced and in which other foreign minors, including from India, have already been introduced without any problem.

Our area is proud of its social sanitary, cultural and recreational facilities, such as a modern hospital, museums, secondary and high schools and Universities in Padova, Venezia and Verona, which allow an ideal intergration in the world of study, work and leisure."

The Priest of the Parish of 'Santa Croce', in his Declaration dated October 18, 1988, declares thus:

"he knows Mr. and Mrs. Urbano Cerantola personally and that he can vouch for their moral behaviour and quality of life. The above-mentioned couple is part of our religious community and they also devote themselves to social activities.

The Parish can testify that other young people from abroad have been successfully brought up in this area and that it offers many possibilities for youth group activities under the guidance of Ecclesiastic Authorities."

RSA No.3582 of 2011 32

The said Declaration of the Priest is also found in the records. Further, the State Professional Institute for Industry and Handicraft has given Declaration of the regular high annual income of the said couple (petitioners 2 and 3). A Declaration, which is sent by the President and the Judge of the Juvenile Court of Venice, reads thus:

"The above mentioned couple qualified for the adoption of two foreign minors born before 5-1-1983 on condition that they are brothers/sisters and so a 'nulla osta' is granted for the entry of the minors into the State territory."

There are other documents produced in the case, which refer to the characteristics of the couple, reason for wanting the adoption and their willingness to adopt the children, thus:

"Characteristics of the couple: they met at work and immediately took a liking to each other.

After having been engaged for a year, they got married in 1973. At first they had some problems in their relationship because of different opinions but as time went by they overcame all their difficulties. Now Mr. and Mrs. Cerantola are a happy couple, with clearly complementary characteristics. They both like travelling and reading and are socially active. Besides, Mr. Cerantola has a disposition for 'do it yourself' and gardening. Mrs. Cerantola likes embroidery and knitting.

Reasons for wanting the adoption: Mr. and Mrs. Cerantola have only now asked for adoption because they have been five miscarriages. This experience has been a great sorrow for them but it has brought them closer and helped them mature their desire for adopting children. They are aware that the probable age of this child will require a different relationship to that needed with a younger child but they feel prepared to face up to this. Their educational preparation seems to be appropriate as it is supported also by their professional experience.

Child: being aware of the age limit, they are willing to adopt a child (even two, if brothers/ sisters) of an age between five and ten. They would have preferred an Italian child but they agreed to adopt a foreign child (having no racial prejudices) RSA No.3582 of 2011 33 even if they are aware of the greater difficulties."

Having looked into all the above material produced in the case and having consulted the wishes of the siblings by getting them to our Chambers, we are fully satisfied that appointment of petitioners 2 and 3 as guardians of the minor siblings and permitting them to take the minor siblings to Italy for their eventual adoption would be a great blessing for them (siblings), which they could not have ordinarily dreamt of in the normal course of events. If the application made for appointment of petitioners 2 and 3 is granted and leave sought for taking the siblings to Italy is granted, we hope and believe that having regard to the nature and favourable circumstances of the adoptive parents and also the nature of the siblings, the siblings would find a good parental home, which had been dented to them for over nine years, in that, they were in the Orphanage, and have bright and prosperous future.

7. Before parting with this case, we cannot help observing that the District Courts, which receive the applications of the kind, i.e., applications for appointment of foreign parents as guardians of minor children of Indian origin, should not shirk the responsibility of disposing them of by themselves having regard to various factors including the emotional factors of children involved in such cases, instead of getting rid of such applications by transferring them to a subordinate Court for disposal.

8. In the result, we allow this appeal, reverse the order of dismissal of the application made under the Act by petitioners, allow the petitioners' application and appoint petitioners 2 and 3 as guardians of the persons of minor siblings - Anitha Marina and Savitha Marina and permit their removal from India to Italy for their eventual adoption by petitioners 2 and 3 and further direct the 'Amici Trentini' - the Association in Italy, to send report to the Court of Civil Judge at Mangalore, Dakshina Kannada, about the adoption of the siblings by petitioners 2 and 3 according to the Italian Adoption Law and in the mean time, also send interim reports to the same Court on the progress of the two minors after their arrival at the Agency for Infants in India or Social Service which is RSA No.3582 of 2011 34 following the case for the designation of the adoptive parents every three months in the first year and every six months in the following year or years until they are effectively adopted and if, for any reason, the proposed adoption does not go through, to arrange to send back the siblings to India.

However, petitioner-1 shall give a bond to the Court of Civil Judge to its satisfaction for due performance of the obligations undertaken by it in relation to the siblings and it shall, in turn, obtain a corresponding bond from the 'Amici Trentini' - the sponsoring social and child welfare agency at Italy, which has sponsored the adoption of the siblings. Copies of this Judgment be sent to the Ministry of Social Welfare, Government of India, as also the Ministry of Social Welfare, Government of Karnataka.

Petition allowed."

23. Thereafter, the Hon'ble Apex Court, in St.Theresa's Tender Loving Care Home & others Vs. State of Andhra Pradesh 2005 AIR (SC) 4375, after taking into consideration essence of directions given in Lakshmi Kant Pandey's case (supra), noticed that the position with regard to biological parents of the child which has to be adopted is that they should be made to understand the effect of adoption and that it would not be possible for them to have any further contact with the child and they should be given sometime to think over the position. The relevant paragraph of the judgment reads as under:

"6. (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 RSA No.3582 of 2011 35 about relinquishing the child for adoption, by the institution or center 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 to 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."

24. Keeping in view the said observations of the Hon'ble Apex Court in the present case, it is noticed from the record of the case that in the application before the lower appellate Court on 20.07.2011, the biological parents were not initially impleaded as party which came up for hearing on 23.07.2011 before the lower appellate Court. In the said application, the biological parents had stood by the adoption deed and filed affidavits that they would have no objection regarding the allowing of the appeal. However, no orders were passed by the lower appellate Court on the said application and the appeal, as noticed above, was dismissed. A similar exercise has been carried out by this Court and the application under Order 1 Rule 10 of the Code of Civil Procedure filed by the biological parents was allowed. In support of the said application, affidavits of both the biological parents were filed who stood by the adoption which has been effected whereby the minor child has been given to the plaintiff-parents. The biological parents also appeared separately from the adoptive parents on 16.02.2012 before this Court and were identified by their counsel and RSA No.3582 of 2011 36 contents of their affidavits were verified by them. This Court has also taken into account the wishes of the biological parents regarding the effect of the adoption and the fact that the child will be going abroad and will be no longer be interacting with the biological parents. This exercise was conducted by the Court only in an effort to ensure that the welfare of the child is to be kept in mind and the safeguards as laid down by the Hon'ble Apex Court in St.Theresa's Tender Loving Care Home case (supra) are not violated.

25. Resultantly, the question of law framed above is answered in favour of the appellants by holding that the said directions of the Lakshmi Kant Pandey's case (supra) are fully applicable and even Indian couples wanting to take Indian children abroad after adoption are entitled to seek directions from the Civil Courts or the Guardian Courts to show their legal rights regarding the child whom they propose to take abroad and accordingly, the regular second appeal is allowed. The parents are held to be the natural guardians and the adoptive parents of Hema Ahuja, born on 18.03.2008 in pursuance of the registered adoption deed dated 29.04.2008 and are entitled to take the child out of India.

26. The present judgment shall be proof and recognization of the status of the appellants as the adoptive parents of the girl child, Hema Ahuja. The relief of change of name in the Register of Birth, SAS Nagar, Mohali cannot, however, be granted as the natural parents of the child are Mr. & Mrs.Balbir Singh. However, since the child is to be taken to Sultanate of Oman, the Indian Embassy therein shall make periodical unobtrusive inspections every six months and send a report to the Indian Child Welfare Council, Punjab, 'Karuna' through its Secretary having its RSA No.3582 of 2011 37 office at Karuna Sadan, Sector 11, Chandigarh. Copy of this order be also forwarded to the Director, Karuna Sadan and Ministry of Social Welfare, Government of Punjab and Ministry of Social Welfare, Government of India for compliance. The appellants shall also report to the respondent No.1 as and when they are in India and the concerned officer of the respondent No.1 shall visit the house of the appellants and interact with the child unobtrusively to ensure that the welfare of the child which is the paramount consideration has been kept into consideration by the adoptive parents. This exercise shall be continued till the child attains majority, i.e., 18.03.2026. In case there is any such adverse report, the same shall be forwarded to this Court for further orders. The appellants shall also deposit a sum of ` 7,50,000/- as a bond with the Registrar General of this Court by way of fixed deposit receipt carrying the highest rate of interest in the name of Hema Ahuja, which is a security for enabling the child to be repatriated in case of any eventuality. The said deposit shall continue in her name till she attains the age of majority, i.e., 18.03.2026 and will be paid to her. The Registrar (Judicial) of this Court shall ensure that the certified copies of the judgment are only issued on deposit of the said amount by the appellants. The intimation of the visit of the appellants to India shall be given to the defendant No.1 by the appellants.

27. Appeal is, accordingly, allowed and the judgments and decrees of the Courts below are hereby set-aside and the suit of the plaintiff is decreed in terms of the above directions.


11.05.2012                                          (G.S.Sandhawalia)
sailesh                                                  JUDGE


             Whether referred to the Reporter? Yes/No

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