Holy Cross Home For Babies vs Ravikiran Abraham Barigala And … on 17 January, 2018

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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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