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Beena (Leena) Makhijani Muller vs The Commissioner, Dept. Of Women … on 9 October, 2019

6. CIVIL WP 13670-18.doc

R.M. AMBERKAR
(Private Secretary)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 13670 OF 2018

Beena (Leena) Makhijani Muller .. Petitioner

Versus
The Commissioner,
Department of Women Child
Development, Maharashtra Ors. .. Respondents

……………….
 Mr. Pradeep Havnur for the Petitioner
 Mr. P.G. Sawant, AGP for Respondent Nos. 1 and 2
……………….

CORAM : AKIL KURESHI
S.J. KATHAWALLA, JJ.

DATE : OCTOBER 9, 2019.

P.C.:

1. Heard learned counsel for the parties for final disposal

of the petition.

2. This petition is filed by one Beena (Leena) Makhijani

Muller who is a citizen of Switzerland. She has been adopted

by her adopting parents who are citizens of Switzerland. The

adoption is stated to have taken place pursuant to a court

decree dated 10.8.1978 passed under Hindu Adoption and

SectionMaintenance Act, 1956. This adoption was facilitated by one

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Asha Sadan (an adoption agency situated in Mumbai). Years

later, the petitioner desired to trace her roots and possibly to

trace her biological parents. Her practical difficulty, however,

is that she is the permanent resident of Switzerland and is,

therefore, unable to spend extensive period of time in India

which would be needed for the purpose of visiting various

departments and thereafter to follow the leads if so available

to trace her roots. In order to overcome this difficulty, she

has appointed Ms. Anjali Pawar residing at Flat No. 6,

Satyasainagar, Survey No. 35/11/2, Dhanakwadi, Pune 411

043, Maharashtra and Mr. Arun Dohle residing at Reimserstr

47 52074 Aachen Germany as her power of attorneys. The

power of attorneys are assigned following powers:-

“1. To visit the Departments, Authorities and Institutions who are
involved in my adoption.

2. To sign and send applications to respective departments and
Courts and they can receive replies for those applications.

3. Giving full rights behalf of me to ask questions to respective
authorities as well persons who are involve in my adoption
and get answer for that.

4. To inspect, copy all records and files pertaining to my birth
and adoption and undertake all necessary actions which will
enable me to meet my biological mother and family.

5. To pay all fees, to the State and Central Government
authorities / agencies against whatever information asked for

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and to obtain receipt for the same.

6. To initiate or defend any legal proceedings in any court of law,
civil or criminal authority, tribunal, judicial or quasi-judicial,
government, State or Central, or original or appellate
jurisdiction, to withdraw or compromise the same on such
terms as may be deemed fit by the attorney, and to generally
carry the same to its final conclusion.

7. And for such purposes to correspond with any person,
authority, municipal, government, state or central, or any
department thereof, for the achievement of these presents.”

3. Learned counsel for the petitioner submitted that the

State Adoption Resources Authority (‘SARA’ for short) is

refusing to assist the attorneys or to part with information or

documents in connection with the petitioner’s adoption. The

said authority, presumably relies on the Adoption

Regulations 2107 notified by Central Adoption Resource

Authority (‘CARA’ for short). Regulation 44 thereof pertains

to root search and makes provisions for supply of information

to the adopted child. However, sub-regulation (6) of

Regulation 44 reads as under:-

“(6) A root search by a third party shall not be permitted and the
agencies or authorities concerned shall not make any information
public relating to biological parents, adoptive parents or adopted
child.”

4. Learned counsel for the petitioner submitted that when

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the petitioner has given full power of attorney to the said

attorneys to act for and on behalf of the petitioner, reliance

on sub-regulation 6 of Regulation 44 by the authorities is

misplaced.

5. We have heard the learned AGP for SARA and other

respondents.

6. Sub-regulation (6) of Regulation 44 undoubtedly seeks

to achieve an important purpose of not parting with

confidential and sensitive information in relation to an

adopted child to third party. The purpose for framing said

sub-regulation, therefore, can easily be appreciated.

However, when the adopted person himself or herself

appoints an attorney to act for and on his / her behalf, such

power of attorney ceases to be a third party and would

therefore not be hit by the limitation contained in sub-

regulation (6) of Regulation 44. A person who is appointed

as attorney acts for and on behalf of the person so

appointing him and therefore, cannot be considered to be a

third party for the purpose of Regulation 44(6). Subject to

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certain safeguards, therefore, we propose to direct the

concerned respondents and in particular SARA to provide

necessary documents and further information as may be

available with it to Ms. Anjali Pawar as a duly constituted

attorney of the petitioner for such purpose. For the purpose

of present issue, other power of attorney Mr. Arun Dohle

shall not be taken into consideration since fulfilling requests

of two different persons may also cause difficulty for the

respondents.

7. Under these circumstances, the petition is disposed of

with following directions:-

(i) The petitioner shall directly send an affidavit

stating that she has executed the said power of

attorney dated 8.5.2015 in favour of Ms. Anjali

Pawar and that she requests that all necessary

information with respect to her adoption be

provided to the said attorney for which she

consents and upon supply of which, she shall not

raise question of breach of confidentiality.

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(ii) Upon receipt of such communication, SARA shall

supply necessary information as may be available

in connection with the adoption of the petitioner

to Ms. Anjali Pawar as her duly constituted

attorney.

8. With the above directions, the petition is disposed of.

[ S.J. KATHAWALLA, J. ] [ AKIL KURESHI, J ]

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