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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
AND
IN ITS GENERAL AND INHERENT JURISDICTION
FOREIGN ADOPTION PETITION NO.59 OF 2017
WITH
JUDGES ORDER NO.259 OF 2017
IN
FOREIGN ADOPTION PETITION NO.59 OF 201 7
Holy Cross Home for Babies … Petitioner
Vs.
Ravikiran Abraham Barigala and anr. … Proposed Adopters
—-
Mr.Rakesh Kapoor for the Petitioner.
Mr.Vishal Kanade, Amicus Curiae present.
Mr. O. Hareendran, Scrutiny Officer, Indian Council of Social
Welfare (ICSW) present.
—-
CORAM : S.C. GUPTE, J.
DATE : 17 JANUARY 2018.
P.C. :
. A procedural question has been raised in this Foreign
Adoption Petition. The question involves the legality, as also of
advisability, of the usual requirement insisted upon by the
adoption court for (i) investment by the proposed adopters in the
name of, or for the benefit of, the child to be adopted and also (ii)
placing of a deposit with the Prothonotary and Senior Master in
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lieu of a bond so as to ensure compliance with the directions of the
court. There has also been a pending representation made to this
court by Central Adoption Resource Authority (CARA) in
connection with another matter, where for non-deposit of bond
money of Rs.60,000/- as per the directions in the Judges Order,
certified copy of the Judges Order allowing adoption was not
issued by the Registry. By this representation, CARA has requested
the court not to insist on any bond money or investment in the
name of the child. Though this issue was earlier considered by this
court in its order dated 29 October 2010 in Foreign Adoption
Petition No.93 of 2010 after hearing CARA, I have thought it fit to
have a relook at this issue, in the light of the notification issued by
the Central Government on 4 January 2017, notifying Adoption
Regulations, 2017. These Regulations inter alia mandate that
adoptive parents shall not be asked in the adoption order to
execute any bond or make any investment in the name of the
child. The matter was accordingly notified on the board calling
upon interested parties to make submissions, if they so desired. A
special notice was also issued to CARA for making its submissions
on the issue. No party has appeared in response to this notice and
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CARA has also not chosen to make appearance or present any
submissions before the court. I have heard Mr. Rakesh Kapoor,
learned counsel for the Petitioner and Mr. Vishal Kanade, learned
counsel appointed as Amicus Curiae in the matter. This order
disposes of the particular issue raised in the matter. By a separate
order, the foreign adoption petition is allowed.
2. As a matter of practice, at the time of allowing adoption
petitions, both Indian and foreign, this court has been directing
adoptive parents to deposit monies in the name of the minors in
India for adoptive parents from India and in their respective
countries for non-resident Indian parents living abroad or foreign
nationals. This court has also been directing deposit of bond
money in the court by adoptive parents for ensuring compliance
with various directions passed in the orders allowing adoption.
This practice can be traced to the celebrated case of Laxmi Kant
Pandey Vs. Union of India1, where the Supreme Court
extensively laid down the principles, parameters and norms to be
followed in cases of inter-country adoptions, where Indian
1 (1984)2 Supreme Court Cases 244
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children were adopted by foreigners living abroad. These
directions were based on a Public Interest Petition complaining of
malpractices and trafficking in children in the matter of such inter-
country adoptions. The Court was inter alia of the view that in the
circumstances which obtained when the Public Interest Petition
was considered by the Court, it was imperative to introduce a
condition in the order that the foreigner, who is appointed
guardian of the minor, shall make a proper provision by way of
either a deposit or a bond or otherwise to enable the child to be
repatriated to India should it become necessary for any reason.
3. The matter was thereafter considered by a learned Single
Judge of this Court in Foreign Adoption Petition No.254 of 2010.
The Petitioner had in that case applied for adoption of an Indian
female child of four and half years. The proposed adopters were
Norwegian nationals. The learned Single Judge was of the view
that since the minor was required to be sent out of the jurisdiction
of this court, and in fact, out of this county, pursuant to the
adoption, the welfare of the child was of prime concern. The
learned Judge observed that experience had shown that in certain
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circumstances need for security of a child had arisen; in many
cases follow-up particulars which were required to be sent by
adoptive parents in foreign countries were delayed or not sent at
all. The court then referred to the directions of the Supreme Court
in the case of Laxmi Kant Pandey (supra) providing for proper
provisions to be made by way of deposit or bond or otherwise to
enable repatriation of the child to India, should it become
necessary for any reason. The learned Judge then noticed various
incidents brought to the notice of the court showing that in certain
cases, bonds insisted upon by the courts in this behalf had been
breached and that it continued to cause needless avoidable
administrative and clerical work in calling for bonds and enforcing
them. The learned Judge was of the view that in the
circumstances, directions for deposit of an amount equivalent to
the amount of the bond by adoptive parents for ensuring
compliance on their part of the undertakings given to the court
were in order; the amount deposited and invested could be resent/
returned with accrued interest later. The learned Judge also
considered it reasonable to require the proposed adopters to invest
some amount in the country of the adoptive parents towards
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security for the child, noting that in most cases a sum equivalent
to Rs.2,00,000/- would be adequate and appropriate for such
security. This was to be retained until the child attained the age of
majority. The learned Judge noted that this amount could be, and
had been, waived in appropriate cases, if the adoptive parents
were not in easy circumstances or overburdened with
responsibilities of a special needs’ child; that in deciding these
matters the court had always exercised its discretion on a case by
case basis. In dealing with CARA’s objection to the discretion of
the court in requiring such security, the learned Judge observed
that various post-adoption obligations and responsibilities of the
agencies as well as the parents did call for a safeguard for their
due execution. The learned Judge observed that in some rare
cases, the security of the child might be compromised in cases of
disruption in the family, abuse of the child, etc. and for alternative
placement of the child in these circumstances, both foreign and
Indian agencies abroad might require funds for safeguarding and
protecting the interest of the child and looking after management,
education and welfare of the child until an alternative placement
was found for the child. The Court was also of the view that a
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modest amount, if invested in the name of the child for its benefit
and use as and when it attained majority, would grant a sense of
independence to the child and also relieve the burden of the
parents at the time of the child’s need to plough back the
investment. The learned Judge, therefore, saw no reason for the
court not to direct in its discretion investment of some reasonable
and modest amount in the name of the child. For all these reasons,
the learned judge rejected the request of CARA not to insist upon
deposit of Rs.60,000/- in the lieu of bond or investment of an
amount equivalent of Rs.2,00,000/- in the name of the child in the
foreign county. After the passing of this order, it has been a matter
of routine practice for this Court to insist upon deposit of bond
money of Rs.60,000/- as well as investment of Rs.2,00,000/- (now
raised to Rs.3,50,000/-) from foreign adoptive parents and of
Rs.1,00,000/- in the name of the child in an Indian bank in case of
Indian adoptive parents. There is also a practice note issued by this
court concerning such investment.
4. As I have mentioned at the outset, it has become necessary
to have a relook at the provisions of deposit of bond money and
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investment in the name of the child in the country of adoption,
particularly in view of the fact that much water has flown since the
passing of the Supreme Court order in Laxmi Kant Pandey’s case
as also the order passed by this court in Foreign Adoption Petition
No. 254 of 2010. In the first place, we now have a comprehensive
statutory instrument in place, dealing with adoption of children, in
the form of Juvenile Justice (Care and Protection of Children) Act,
2015 (“Act”). This Act provides for various aspects in the matter of
adoption, particularly of orphan, abandoned and surrendered
children, as per the provisions of the Act, such as eligibility of
prospective parents, procedure for adoption by Indian prospective
adoptive parents living in India as well as inter-country adoption.
Both in the case of adoption of orphan, abandoned or surrendered
children and relative adoption, various court procedures and
compliances required from various stakeholders such as
specialized adoption agencies, the State Adoption Resource
Agency (“SARA”), Central Adoption Resource Authority(“CARA”)
etc. are provided for. The Act also provides for powers of the
authority, namely, the Central Adoption Resource Authority
(CARA), constituted under Section 68 of the Act, which inter alia
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requires CARA to perform various functions including framing of
regulations on adoption and related matters from time to time as
may be necessary. The Act provides that adoption shall be
resorted to, both in the case of orphan, abandoned, surrendered
children and in the case of children from relatives, as per the
provisions of the Act, the rules made thereunder and the adoption
regulations framed by CARA. The Act provides that all inter-
country adoptions shall be done only as per the provisions of the
Act and the adoption regulations framed by CARA. CARA has
framed these regulations, which have since been notified by the
Central Government as Adoption Regulations, 2017, in exercise of
the powers conferred by clause (c) of Section 68 read with clause
(3) of Section 2 of the Act. These regulations inter alia provide for
various connected matters relating to the adoption procedure to be
applied for adoption of children by resident Indians as well as non-
resident Indians, overseas citizens of India and foreign prospective
adoptive parents. The Regulations also provide for functions of
Government organizations and authority. The Regulations inter
alia require (Regulation 12.7) that adoptive parents shall not be
asked in the adoption order to execute any bond or make
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investment in the name of the child, considering the fact that their
psycho-social profile and financial status have already been
ascertained from the home study report and other supporting
documents. The provision of Regulation 12.7, though applicable to
resident Indians, is made mutatis mutandis applicable even in the
case of inter-country adoptions in Chapter IV of the Regulations
(Regulation 17.1).
5. Relooking at the provisions of bond money or investment in
the name of the child would essentially involve consideration of
the rationale of the provisions as proposed by the Supreme Court
in Laxmi Kant Pandey’s case, which, as I have noted above, have
been followed throughout by this court. Secondly, it would also
involve consideration of the statutory apparatus now put in place
and whether the original rationale for insisting on bond money or
investment still holds good under this new apparatus. Apropos of
the circumstances, which prompted the Supreme Court to propose
a bond or a deposit as a condition of adoption, it needs to be
noted at the very outset that there was no statutory enactment in
the country at that time providing for adoption of a child by
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foreign parents or laying down the procedure, which must be
followed in such a case. The court had to resort to the provisions
of the Guardians and Wards Act, 1890 for the purpose of
facilitating such adoption. This Act was an old statute inter alia
providing for appointment of a guardian of the person or property
of a minor. If the court, as defined in that Act, was satisfied that
for the welfare of the minor an order should be made appointing a
guardian of his person or property or both, the court could make
such order. Application for such order had to be made only by
one of the four categories of persons specified in clauses (a) to (d)
of Sub-Section (1) of Section 8 of the Guardians and Wards Act.
What the adoptive parents basically did under this dispensation
was to make an application to the court for appointing themselves
to be the guardians of the person of the child whom they could
thereafter take in adoption in their respective countries after
seeking leave of the court to take the child to those countries on
being appointed as guardians. Various courts in the country had
made their own rules providing for procedural aspects of these
orders. The Supreme Court in Laxmi Kant Pandey’s case observed
that in the absence of any law providing for adoption of an Indian
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child by foreign parents, the only way in which such adoption
could be effected was by making an application for adoption in
accordance with the law of the country in which the foreigners
resided; but that in order to enable such adoption to be made in
the country of foreign parents, it would be necessary for the
foreign parents to take the child to their own country, where the
procedure for making an adoption in accordance with the law of
that country could be followed. Yet, the child, who was an Indian
national, could not be allowed to be removed out of India by the
foreign parents unless they were appointed guardians of the
person of the child and were permitted by the court to take the
child out of the country. The Supreme Court observed that as the
law then stood, the only way in which a foreign parent could take
an Indian child in adoption was by making an application to the
court within the jurisdiction of which the child ordinarily resided
for being appointed a guardian of the person of the child with
leave to remove the child out of India and take it to his or her own
country for the purpose of adoption in accordance with the law of
that country. The court noted the imperative need to facilitate
inter-country adoptions and accordingly, proceeded to evolve
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normative and procedural safeguards for ensuring that the child
goes into the right family which would provide it warmth and
affection of family life and help it grow and develop physically,
emotionally, intellectually and spiritually. The court then
considered in great details various procedural and legal aspects of
inter-country adoption and extensively laid down various
safeguards including involvement of social and child welfare
agencies, officers of Indian Embassies and High Commissions in
the countries of adoption and also the Governments of the States.
The court proposed child study reports by recognized social or
child welfare agencies as also setting up of a Central Adoption
Resource Authority (now ‘CARA’) with regional branches at a few
centers as active facilitators of inter-country adoption. The court
not only recommended setting up of such agencies, but also
provided for matters in the interregnum, i.e. until such agencies
were set up. In the course of setting out these safeguards and
procedures, the Supreme Court observed that after considering the
various matters including the reports as proposed by it, if the court
was satisfied, only then it would make an order appointing a
foreigner as a guardian of the child and permitting him to remove
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the child to his or her own country with a view to accomplish the
eventual adoption. The Supreme Court observed that the court
should introduce a condition in the order that the foreigner who is
appointed a guardian shall make a 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. The court
observed that such a provision was found in clause (24) of the
Adoption and Children Bill No.210 of 1980, then under
contemplation of the central legislature. The Court also noticed
the practice of taking a bond from a foreigner, who was appointed
as a guardian of child, being followed by the courts in Delhi as a
result of a practice note issued by the High Court of Delhi. The
Supreme Court noted that the order should also include a
condition that the foreigner, who was appointed guardian, would
submit to the court as also to the social or child welfare agency
processing the application for guardianship, progress reports of the
child alongwith recent photographs, initially quarterly during the
first two years and thereafter half yearly in the next three years. In
pursuance of these directions of the Supreme Court, Central
Adoption Resource Authority (CARA) was set up by the
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Government of India with regional centres at a few places in the
country. Through the agency of various child welfare agencies,
guardianship applications of foreigners in respect of Indian
children continued to be processed as per the procedure laid down
by the Supreme Court in Laxmi Kant Pandey’s case and it was in
pursuance of these provisions that our courts insisted on the bond
money of Rs.60,000/- and deposit in the name of the minor in the
country of its adoption of a sum of Rs.2,00,000/- (subsequently
raised to Rs.3,50,000/-).
6. The Supreme Court revisited the issue of deposit or bond to
be executed by foreigners in a follow up judgment in the case of
Laxmi Kant Pandey Vs. Union of India 1. The court considered
(Paragraph No. 12 of the judgment) submissions made by some
social/child welfare agencies that the court while appointing a
foreigner as guardian of a minor should not insist on deposit
being made by way security for enabling the child to be
repatriated to India, should it become necessary for any reason
and instead allow a bond to be executed by the foreigner towards
1 1985 (SUCP) SC cases 701
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such security. The court noted that if security by way of deposit
were to be insisted upon by the court, it might cause a certain
amount of hardship to the foreigner because his money would
remain locked up in the court and though upon adoption being
effected by him, he may be entitled to return of the amount, it
would be difficult to have that amount repatriated to a foreign
country. Even so, the court did not think it fit to issue any general
direction that deposit should not be insisted upon in any case. The
court was of the view that it should be a matter to be decided by
the court in the exercise of its judicial discretion. The court
accepted that execution of a bond would ordinarily be sufficient,
but there could be other alternatives which might be adopted by
the court including, in an appropriate case, acceptance of a deposit
by way of security instead of a bond.
7. As is clear from the above discussion, bond money was
insisted upon basically with a view to see that it would facilitate
repatriation of the child from a foreign country, i.e. the country of
the adoptive foreign parents, in case the adoption did not go
through in that country and it became necessary to bring the child
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back to India. The court, as the ultimate guardian of the minor,
felt that it was necessary to provide for a bond or security as a
condition for appointment of a foreigner as a guardian of an
Indian child and grant of permission to him to remove the child to
his own country with a view to facilitate the eventual adoption.
This situation no longer obtains under the legal framework
provided for in the Juvenile Justice (Care and Protection of
Children) Act, 2015. Elaborate provisions have been made under
this Act for adoption of Indian children by foreigners. All inter-
country adoptions have to be made only as per the provisions of
the Act and the adoption regulations framed by the Authority
(CARA). The effect of such adoption is provided in Section 63 of
the Act. The child, in respect of whom an adoption order is issued
by the court under the Act, shall become the child of the adoptive
parents, who, in turn, shall become the parents of the child as if
the child had been born to them, for all purposes with effect from
the date on which the adoption becomes effective. On and from
such date all the ties of the child to the family of his or her birth
shall stand severed and replaced by those created by the adoption
order to the adoptive family. In other words, the adoption order
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provides for a final snapping of the ties of the child to the family of
its birth and its becoming the child of the adoptive parents from
the date the adoption order comes into effect. The Act further
provides for issuance of a passport and visa to the child in
pursuance of the adoption order and enables the prospective
adoptive parents to receive the child in person from the specialized
adoptive agencies only after such passport and visa are issued to
the child. It is only thereafter that the adoptive parents can take
the child to their country. There is, thus, no question of
repatriation of the child, once the child leaves this country as a
child of the adoptive parents. There are regulations framed by
CARA, which have been notified by the Central Government as
Adoption Regulations, 2017, which provide for various procedural
aspects including the safeguards to be employed both before and
after adoption. These Regulations provide for reporting of the
progress of the adopted child for two years from the date of arrival
of the adopted child in the receiving country, on a quarterly basis
during the first year and on a six monthly basis during the second
year by uploading the same online in the Child Adoption and
Resource Guidance System (Regulation 19) in a format provided
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in the schedule. The Regulations provide that on the basis of these
progress reports or in the course of post adoption home visits, if an
adjustment problem of an adoptee with the adoptive parents
comes to the notice of the Authorized Foreign Adoption Agency or
Central Authority or the concerned Government department in the
receiving country, requisite counselling shall be arranged for the
adoptive parents and for the adoptee, wherever applicable. The
Regulations provide that if it is found that the adoptee is unable to
adjust in the adoptive family or that its continuation in the
adoptive family is not in the interest of the child, the Authorized
Foreign Adoption Agency or Central Authority or the Government
department in the receiving country or Indian Diplomatic
Commission concerned, as the case may be, shall withdraw the
child and provide necessary counseling and arrange suitable
alternative adoption or foster placement of the child in that
county, in consultation with the Indian Diplomatic Commission
and the Authority. The Regulations also provide that in case of any
disruption or dissolution of adoption, the child shall be entitled to
receive care, protection and rehabilitation through the child
protection services of that country and as per Hague Adoption
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Convention for the Hague Adoption Convention ratified countries.
The only responsibility placed on the prospective adoptive parents
is to furnish an undertaking to allow personal visits of the
representatives of the named authorities to ascertain the progress
of the child with the adoptive parents or family at least for a
period of two years from the date of arrival of the child in the
receiving country. Under this dispensation, there is practically no
scope for insisting on deposit to be made either in court as bond
money or otherwise towards investment in the name of the child.
The original rationale for insisting on these conditions, which was
with a view to take care of the situation, if adoption finally did not
take place in the receiving country, does not apply or is relevant
any more. It is in the light of these considerations that the
Adoption Regulations, 2017 provide that the adoptive parents
shall not be asked in the adoption order to execute any bond or
make investment in the name of the child. This mandate under the
Regulations is said to be justified particularly “considering the fact
that their psycho-social profile and financial status have already
been ascertained from the Home Study Report and other supporting
documents”. There is thus no warrant for insisting on any deposit
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either by way of bond money or by way of investment in the name
of the adopted child, while issuing the adoption order.
8. This, however, does not mean that in any appropriate case
where the court finds that there is some more compliance which is
necessary in the facts of the case on the part of the adoptive
parents, the court may in such special case, for reasons to be
indicated in the order, provide for an appropriate deposit or bond
to facilitate and enforce such compliance. The insistence on such
bond or deposit cannot be objected to on the ground that
Adoption Regulations, 2017 do not countenance execution of any
bond or making of any investment in the name of the child as a
condition of the adoption order. Of course, ordinarily the court
shall not ask the adoptive parents to execute any bond or make
any investments in the name of the child, but that is for normal
compliance or enforcement of the adoption order. If there are
some other special conditions or any special compliance is called
for, the court would be free to make special provisions. For special
reasons and with a view to enforce compliance with any special
conditions to be laid down in the adoption order depending upon
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the exigencies of the case, the court may use its discretion and
insist on any special condition including execution of a bond or
making of a deposit.
9. This clarifies the issue raised before the court. Before
concluding, this court must record its appreciation for the valuable
assistance received from the learned Amicus Curiae by placing
before the court the entire statutory and case law and analysing it
extensively.
10. As I have noted above, adoption of the child in the present
adoption petition is allowed by a separate order passed in the
petition.
( S.C.GUPTE J. )
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