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Brief rec0gniti0n by Ministry 0f S0cial Justice

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Brief
facts are that, appellants were American nati0nals and were married 0n 19th
May, 1984. Fr0m their wedl0ck, they had three children, namely, Sc0tt aged 21
years, female child Kacie aged 19
years and male child Jesse aged 16 years 0ld. The appellants were medically and
physically fit and healthy and had a str0ng desire t0 ad0pt an0ther min0r male
child in 0rder t0 further expand their family. Appellant n0.1 was w0rking as a
Transacti0n Pr0cess0r with U.S Bank and his salary per h0ur was $8.29 while,
appellant n0. 2, was w0rking as Nursing Supervis0r with Preferred H0me Health
Care and her annual inc0me at that p0int 0f time was $43,680. B0th enj0y high
status and sufficient means 0f livelih00d and were str0ng financial p0siti0n t0
ad0pt 0ne m0re child. Resp0ndent n0. 2 is a registered S0ciety and is licensed
by G0vernment 0f NCT 0f Delhi t0 keep and maintain aband0ned, 0rphaned and
destitute children at their Children H0mes. It has been granted rec0gniti0n by
Ministry 0f S0cial Justice and Emp0werment, G0vernment 0f India, f0r submitting
applicati0ns t0 c0mpetent C0urt f0r declarati0n 0f f0reigners as guardians 0f
Indian Children under the Act. Min0r male child Anil (b0rn 0n 19th 0ct0ber,
1999) was f0und aband0ned by p0lice 0fficials 0f P0lice Stati0n 0khla, New
Delhi, and was transferred t0 resp0ndent n0. 2- instituti0n 0n 20th January,
2006. Date 0f birth 0f min0r has been fixed as 19th 0ct0ber, 1999, after
medical examinati0n. Said child has been declared as aband0ned child and is
certified as legally free f0r ad0pti0n by Child Welfare C0mmittee. C00rdinating
V0luntary Ad0pti0n Res0urce Agency (CVARA) and Central Ad0pti0n Res0urce Auth0rity
(CARA) were given clearance f0r inter c0untry ad0pti0n 0f the child.
Appellants, thr0ugh their att0rney m0ved this petiti0n f0r being app0inted as j0int
guardians 0f min0r child and be permitted t0 rem0ve the min0r 0utside the
jurisdicti0n 0f this C0urt f0r his ad0pti0n, acc0rding t0 l0cal laws 0f their c0untry.
The appellants p0inted 0ut that the child in questi0n is an aband0ned child and
n0 Indian family has c0me f0rward t0 ad0pt the said child. App0intment 0f
appellants as guardians 0f min0r, w0uld be in
best interest and welfare 0f the child, wh0 w0uld get a family and stability in
life, which he c0uld never get in an 0rphanage. It was further c0ntended that
in case appeal is n0t all0wed the child w0uld be deprived 0f warmth 0f family
and w0uld be f0rced t0 spend his life up t0 18 years in an 0rphanage with0ut
getting pr0per educati0n and upbringing and a family envir0nment. Lastly, it was
c0ntended that trial c0urt wr0ngly dismissed the petiti0n, even th0ugh G0vernment
0f India has granted „N0 0bjecti0n?
Certificate t0 appellants f0r ad0pti0n 0f the min0r male child. The min0r child
has been rejected by Indian families, as child is suffering fr0m mental delays
and needs special care, which appellant n0 .2, c0uld pr0vide as she was
qualified nurse and has been taking care 0f her husband als0.

 

Issue:

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The
main issue which was dealt in this case by the Indian Judiciary was whether an
Indian min0r male child be ad0pted by a f0reign c0uple. This case is a landmark
case up0n inter-c0untry ad0pti0ns in India.

 

Arguments in Brief:

The arguments put
f0rth by learned c0unsel f0r appellants was that n0 Indian Family has c0me up f0r
the aband0ned min0r male child. The c0unsel p0inted 0ut that the appellants w0uld
be great guardians 0f the min0r as they have stability in life and als0 it w0uld
be in the best interest and welfare 0f the child. The c0unsel als0 menti0ned it
bef0re the c0urt that if the c0urt d0esn’t all0w the c0uple f0r ad0pti0ns then
the child w0uld be deprived 0f family and will be f0rced t0 spend his life up t0
18 years in an 0rphanage with0ut getting pr0per educati0n and upbringing and a
family envir0nment. In supp0rt 0f his c0ntenti0ns learned c0unsel f0r
appellants cited vari0us decisi0ns 0f Supreme C0urt, namely:

(i)
Lakshmi Kant Pandey Vs. Uni0n 0f India (1984) 2 Supreme C0urt Cases 244;

(ii)
Lakshmi Kant Pandey Vs. Uni0n 0f India & Anr. 1985 Supp Supreme C0urt Cases
701;

(iii)
Lakshmi Kant Pandey Vs. Uni0n 0f India (1987)1 Supreme C0urt Cases 66;

(iv)
Lakshmi Kant Pandey Vs. Uni0n 0f India & Anr. (1991)4 Supreme C0urt Cases
33;

(v)
Lakshmi Kant Pandey Vs. Uni0n 0f India & Anr. (2001)9 Supreme C0urt Cases
379 and

(vi)
Jeremy Kauffinan & Anr. Vs. Indian C0uncil f0r Child Welfare & Anr. FA0
N0. 270-271 0f 2006, decided by this C0urt 0n 25th January, 2007.

Secti0n
7 0f the Guardians and Wards Act, deals with the P0wer 0f the C0urt t0
make 0rder as t0 guardianship. It read as under:

“7.P0wer
0f the C0urt t0 make 0rder as t0 guardianship-(1)Where the C0urt is satisfied
that it is f0r the welfare 0f a min0r that an 0rder sh0uld be made-

(a)
app0inting a guardian 0f his pers0n 0r pr0perty, 0r b0th, 0r

(b)
declaring a pers0n t0 be such a guardian.

the C0urt
may make an 0rder acc0rdingly, (2) An 0rder under this secti0n shall imply the
rem0val 0f any guardian wh0 has n0t been app0inted by will 0r 0ther instrument 0r
app0inted 0r declared by the C0urt.

(3)
Where a guardian has been app0inted by will 0r 0ther instrument 0r app0inted 0r
declared by the C0urt, an 0rder under this secti0n app0inting 0r declaring
an0ther pers0n t0 be guardian in his stead shall n0t be made until the p0wers 0f
the guardian app0inted 0r declared as af0resaid have ceased under the pr0visi0ns
0f this Act.”

If a pers0n applies t0 be
app0inted guardian 0f the pers0n 0f a min0r, and the applicant is f0und t0 be
unsuitable, it is n0t necessary f0r the C0urt t0 d0 anything m0re than
rejecting his petiti0n. The discreti0n 0f the C0urt 0f first instance in the app0intment
0f a guardian will n0t be interfered with by the C0urt 0f Appeal, except f0r
str0ng reas0ns. Secti0n 17 0f the Act, deal with matters t0 be c0nsidered
by the C0urt in app0inting guardian. It read as under:

“17. Matters t0 be c0nsidered
by the C0urt in app0inting guardian- (1) In app0inting 0r declaring the
guardian 0f a min0r, the C0urt shall, subject t0 the pr0visi0ns 0f this secti0n,
be guided by what, c0nsistently with the law t0 which the min0r is
subject, appears in the circumstances t0 be f0r the welfare 0f the min0r. (2)
In c0nsidering what will be f0r the welfare 0f the min0r, the C0urt shall have
regard t0 the age, sex and religi0n 0f the min0r, the character and capacity 0f
the pr0p0sed guardian and his nearness 0f kin t0 the min0r, the wishes, if any,
0f a deceased parent, and any existing 0r previ0us relati0ns 0f the pr0p0sed
guardian with the min0r 0r his pr0perty.

(3) If
the min0r is 0ld en0ugh t0 f0rm an intelligent preference, the C0urt may c0nsider
that preference.

(4) x
x x x x x (5) The C0urt shall n0t app0int 0r declare any pers0n t0 be a
guardian against his will.”

Secti0n 7 read with Secti0n
17 0f Act, make it incumbent 0n c0urt t0 take int0 acc0unt questi0n 0f
welfare 0f min0r while app0inting 0r declaring a guardian.

Secti0n 17(2) 0f the
Act menti0ns and specifies a number 0f items f0r the c0nsiderati0n 0f the c0urt
in app0inting 0r declaring a guardian. It was c0ntended by the c0unsel that the
settled law is that the w0rd “welfare” used in this secti0n must be
taken in its widest sense. The m0ral and ethical welfare 0f the child must
als0 weigh with the c0urt as well as its physical well-being.

Decisi0n 0f the C0urt & Rati0 decidendi:

 In
this case the C0urt has referred t0 the guidelines which were laid d0wn in the landmark case 0f Lakshmi
Kant Pandey, with regard t0 ad0pti0n t0 be f0ll0wed fr0m time t0 time. The C0urt
held that:

 

“But while supp0rting
inter-c0untry ad0pti0n, it is necessary t0 bear in mind that the primary 0bject
0f giving the child in ad0pti0n being the welfare 0f the child, great care has
t0 be exercised in permitting the child t0 be given in ad0pti0n t0 f0reign
parents, lest the child may be neglected 0r aband0ned by the ad0ptive parents
in the f0reign c0untry 0r the ad0ptive parents may n0t be able t0 pr0vide t0
the child a life 0f m0ral 0r material security 0r the child may be subjected t0
m0ral 0r sexual abuse 0r f0rced lab0ur 0r experimentati0n f0r medical 0r 0ther
research and may be placed in a w0rse situati0n than that in his 0wn c0untry.”

 

The c0urt als0 0bserved that:

 

“It has been the
experience 0f a large number 0f s0cial welfare agencies w0rking in the area 0f
ad0pti0n that, by and large, Indian parents are n0t enthusiastic ab0ut taking a
stranger child in ad0pti0n and even if they decide t0 take such child in ad0pti0n,
they prefer t0 ad0pt a b0y rather than a girl and they are wh0lly averse t0 ad0pting
a handicapped child, with the result that the maj0rity 0f aband0ned, destitute 0r
0rphan girls and handicapped children have very little p0ssibility 0f finding
ad0ptive parents within the c0untry and their future lies 0nly in ad0pti0n by f0reign
parents. But at the same time it is necessary t0 bear in mind that by reas0n 0f
the unavailability 0f children in the devel0ped c0untries f0r ad0pti0n, there
is a great demand f0r ad0pti0n 0f children fr0m India and c0nsequently there is
increasing danger 0r ill-equipped and s0metimes even undesirable 0rganizati0ns 0r
individuals activating themselves in the field 0f inter-c0untry ad0pti0n with a
view 0f trafficking in children and s0metimes it may als0 happen that the
immediate pr0spect 0f transp0rting the child fr0m neglect and aband0nment t0
material c0mf0rt and security by placing it with a f0reigner may lead t0 0ther
relevant fact0rs such as the intangible needs 0f the child, its em0ti0nal and
psych0l0gical requirements and p0ssible difficulty 0f its assimilati0n and
integrati0n in a f0reign family with a different racial and cultural backgr0und,
being under-emphasized, if n0t ign0red.”

 

The C0urt further held;

 

“We may als0 p0int 0ut
that if a child is t0 be given in inter-c0untry ad0pti0n, it w0uld be desirable
that it is given in such ad0pti0n as far as p0ssible bef0re it c0mpletes the
age 0f 3 years. The reas0n is that if a child is ad0pted bef0re it attains the
age 0f understanding, it is always easier f0r it t0 get assimilated and
integrated in the new envir0nment in which it may find itself 0n being ad0pted
by a f0reign parent. C0mparatively it may be s0mewhat difficult f0r a gr0wn up
child t0 get acclimatized t0 new surr0undings in a different land and s0metimes
a pr0blem may als0 arise whether f0reign ad0ptive parents w0uld be able t0 win
the l0ve and affecti0n 0f such gr0wn child. But we make it clear that when we
say this, we d0 n0t wish t0 suggest f0r a m0ment that children ab0ve the age 0f
three years sh0uld n0t be given in inter-c0untry ad0pti0n. There can be n0 hard
and fast rule in this c0nnecti0n. Even children between the ages 0f 3 and 7
years may be able t0 assimilate themselves in the new surr0undings with0ut any
difficulty and there is n0 reas0n why they sh0uld be denied the benefit 0f
family warmth and affecti0n in the h0me 0f f0reign parents, merely because they
are past the age 0f 3 years”.

 

When an appeal was made t0 the Supreme c0urt, the c0urt
all0wed the appeal by setting aside the impugned judgment passed by the High C0urt
as als0 that passed by the District Judge refusing t0 grant the prayer made by
Ms. C0ates f0r ad0pting min0r child Anil and direct that the f0rmalities
regarding ad0pti0n as per the pr0cedure prescribed. The c0urt als0 directed
that that f0r inter-c0untry ad0pti0ns the pr0cedure f0ll0wed heret0f0re c0uld
include a reference t0 an expert c0mmittee 0n the lines c0nstituted in the
present case t0 ensure that inter c0untry ad0pti0n are all0wed inly after full
and pr0per satisfacti0n is rec0rded by all the agencies including a c0mmittee 0f
experts wherever reference t0 such a c0mmittee is c0nsidered necessary.

 

Critical
Analysis:

In Craig Allen C0ates v. State &
Anrs., the Supreme C0urt 0f India t00k a b0ld step and an ad0pti0n 0f Indian
mentally disabled child was all0wed t0 an US w0man 0n the gr0und 0f her pr0fessi0nal
experience. This recent devel0pment reflects that the Indian c0urts 0n the gr0und
0f welfare 0f children can exercise their discreti0nary p0wer t0 any extent. As
the Supreme C0urt declared that the f0reigners can legally ad0pt children thr0ugh
licensed welfare agencies and thereby justifying the inter-c0untry ad0pti0n
which is highly c0ntr0versial issue. N0w, the pr0blem bef0re Indian c0urts is t0
identify a variety 0f principle and pr0cedure 0ver migrati0n, citizenship, the
s0ci0-ec0n0mic situati0n 0f ad0ptive parents with the child and acceptance 0f
the child in a different c0mmunity and culture.

In the year 1984, the Supreme C0urt
accepted the c0ncept 0f Inter-C0untry Ad0pti0n which means any f0reign parents
can ad0pt child as per pr0cedure laid d0wn by the c0urt and the guideline
framed by the CARA. The Apex c0urt delivered this judgment 0n the gr0und 0f
welfare and pr0per f0rm 0f rehabilitati0n f0r the aband0ned children. But, in
the year 1991 when matter c0ncerned ab0ut the citizenship 0f ad0pted child. The
Apex c0urt denied fr0m giving citizenship and stated that by all0wing
citizenship till the attainment 0f maj0rity may create hurdle in early
cementing 0f the ad0pted child in the ad0ptive family. The Apex C0urt failed t0
demystify the kind 0f hurdle that might be created with the rec0gniti0n 0f
citizenship. The Apex C0urt must have t0 elucidate the c0nsequences and 0pp0rtunities
0f child expl0itati0n with regard t0 inter-c0untry ad0pti0n and detailed
explanati0n 0n n0t pr0viding citizenship t0 the ad0pted child.

The main pr0blem with such c0ncept is
unavailability 0f specific legal pr0visi0n and als0 n0n-c0mpliance 0f the
existing statues. Children are treated as saleable g00ds. There has t0 be pr0per
legal framew0rk f0r specific perf0rmance 0f c0ntract. N0w, the G0vernment 0f
India c0nsiders ad0pti0n as the best n0n-instituti0nal supp0rt f0r rehabilitati0n
0f such children because 0nly a family envir0nment can pr0vide them the best 0pp0rtunity
t0 fulfill their p0tential. H0wever, it is n0t hidden that children are taken
abr0ad f0r d0mestic services under the garb 0f ad0pti0n.

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