ST. THERESA'S TENDER LOVING CARE HOME AND ORS.versusSTATE OF A.P.

A            ST. THERESA'S TENDER LOVING CARE HOME AND ORS.
                                           v.
                                    STATE OF A.P.

                                  OCTOBER 24, 2005

B                   [ARIJITPASAYAT ANDARUNKUMAR,JJ.]


         Guardians and Wards Act, 1890-Sections 7 to JO-Family Courts Act,
     1984-Section 19(1):

C           Inter country adoption-Adoption of child by foreigner-Permissibility
      Society for providing shelter to abandoned children seeking permission to
     give a female child in adoption to foreigner parents-Child Stated to be
      relinquished by her mother and as she suffered various ailments her adoption
      by Indian parents had not materialize-Clearance given by Voluntary
D    Coordination Agency for adoption-State resisting the claim-Petition of
     Society dismissed by Family Court thereby refusing to permit adoption--
     High Court affirming the same on the ground that Relinquishment deed was
     false and fabricated and no effort was made to give child in adoption to
     Indian parents-Challenge to-Held: The orders of Family Court and High
     Court not suffering from any infirmity to warrant interference-Central and
E    State Governments directed to look into problems relating to the abandoned
     children with humanitarian approach.

            Appellant no.I is a society established for providing shelter to the
     abandoned children. Appellant no.2 and 3 are residents of USA. They desired
F    to adopt a female child named Sahiti who was relinquished by her mother.
     Appellant no.I claimed that the child suffered from various ailments and her
     adoption in India did not materialise. On that ground Voluntary Coordination
     Agency (VCA) gave clearance for child to be given in adoption abroad. State
     resisted the claim in view of government order banning the relinquishment
     of child. Family Court dismissed the claim of adoption of child by the
G    foreigners. High Court aiffirmed the order of Family Court on the ground
     that the relinquishment deed purported to be made by mother of child was
     false and fabricated and there was no genuine effort by appellant no. I to see
     that the child was adopted by Indian parents. Hence the present appeal.

          Dismissing the appeal, the Court
II                                       486
            ST. THERESA'S TENDER LOVING CARE HOME v. STATE OF A.P.         487

      HELD: 1. The orders passed by Family Court and High Court did not            A
suffer from infirmity to warrant interference, (496-C]

       2. Children need special protection because of their tender age and
physique, mental immaturity and incapacity to look after themselves, That is
why there is a growing realization in every part of the globe that children
must be brought up in an atmosphere of love and affection and under the tender     B
care and attention of parents so that they may be able to attain full emotional,
intellectual and spiritual stability and maturity and acquire self-confidence
and self-respect and a balanced view of life with full appreciation and
realisation of the role which they have to play in the nation building process.
Without that the nation cannot develop and attain real prosperity because a        C
large segment of the society would then be left out of the developmental
process, Abandoning children and excluding good foundation of life for them
is a crime against humanity. Children cannot and should not be treated as
chattels or saleable commodities or play things, For full and harmonious
development of their personality, children should grow up in an atmosphere
of happiness, love and understanding. (490-H; 491-A, B, F)                         D
      *Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244, relied on.

      3.1. The appellant no.I has been prosecuted for offences punishable
under various provisions of the Indian Penal Code, 1860. The accusations
relate to cheating, manipulation/fabrication of documents. Some of the             E
functionaries of the appellant no.I have already been convicted. (496-D)

      3.2. While permitting any organization to keep a child or give him or
her in adoption, its credentials are to be minutely scrutinized. It should be
ensured that behind the mask of social service or upliftment an evil design of     F
child trafficking is not lurking. It is the duty of the State to e·nsure a safe
roof over an abandoned child. Keeping in view the welfare of the child all
possible efforts should be made by the State Governments to explore a
possibility of adoption under the supervision of the designated agency. Keeping
in view the guidelines indicated by this Court in Lakshmi Kant Pandey case*,
adoption by foreign parents may in appropriate cases be permitted. (496-E, F)      G
      3.3. While making the requisite and prescribed exercise it has to be
kept in mind that child is a precious gift and merely because he or she for
various reasons is abandoned by the parents that cannot be a reason for further
neglect by the society. It is urged by appellants that the children homes run
by the State governments are really no place when a child is to be placed.         H
    488                        SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A They suffer from neglect, proper care is a myth and a large number of children
    have lost their lives or are unable to bear the cruelties meted out. If the
    grievances are true, it is a matter of serious concern. The Central Government
    and the State Governments are directed to look at these problems with
    humanitarian approach and concern they deserve. 1496-G, HI

B         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6492 of2005.

         From the Judgment and Order dated 23.1.2.2002 of the Andhra Pradesh
    High Court in C.M.A. No. 2281 of2002.

          Mrs. B. Sunita Rao for the Appellants.
c
          Mrs. ·o. Bharathi Reddy for the Respondent.

          Colin Gonsalvis, Ms. Apama Bhat and P. Ramesh Kumar for Intervenors.

          The Judgment of the Court was delivered by
D
          ARIJIT PASAYA T, J. Leave granted.

         The basic issue involved in this appeal is whether the appellant no. I
  should be permitted to make arrangement for adoption of a child named Sahiti
  presently about five years by appellant nos. 2 and 3. Appellant no. I claims
E to be an organization interested in the welfare of abandoned children and to
  secure a congenial atmosphere for their upbringing. Challenge in this appeal
  is to an order dated 23.12.2002 passed by the Andhra Pradesh High Court
  dismissing the appeal purported to have been filed under Section 19(1) of the
  Family Courts Act, 1984 (in short the 'Act') and Section 47 of the Guardians
  and Wards Act, 1890 (in short the 'Guardians Act'). The appeal before the
F Andhra Pradesh High Court was filed by the appellants questioning correctness
  of the order dated 8. 7.2002 passed by the learned Judge, Family Court,
  Secunderabad, rejecting the prayer made by the appellants under Sections 7
  to I 0 of the Guardian Act. Stand of the appellants before the Family Court
  was that it is a society registered under the Andhra Pradesh (Telangana Area)
G Public Societies Registration Act, 1350 Fasli (in short 'Societies Act')
  purp~rtedly for carrying social service activities. One of its main objectives
  is to provide shelter to abandoned children more particularly by unwed
  mothers, and as noted above to see theni comfortably settled in adopted
  homes. The appellants 2 and 3 are residents of U.S.A. According to petition
  they were married on 19. 10. 1999. They had earlier adopted one son, but
H wanted to adopt a female child from India and for that purpose wanted to
       ST THERESA'S TENDER LOVING CARE HOME v. STATE OF AP. [PASAYAT, J. J   489

 adopt the girl named Sahiti, born on 14.6.2000. The claim that they are well A
 settled in life with decent income, would be eligible for adopting the child and
 also were sure to provide a happy home to the adopted child. The minor child
Sahiti was stated to be daughter of an unmarried mother by name Esther, a
native of Hyderabad and earning livelihood as a labourer. Due to social stigma
she relinquished the child in favour of the appellant no. I on 14.6.2000 and B
executed a Relinquishment Deed. The child suffered from various ailments
and her adoption in India did not materialize. On that ground the Voluntary
Coordination Agency (in short 'VCA') gave clearance for the minor to be
given in adoption abroad. It was stated in the petition that inquiries made by
appellant no. I revealed that none of her relatives were ready and willing to
take care of the minor. Since 14.6.2000 the child has been under the care and C
custody of appellant no. I. The State of Andhra Pradesh represented by the
Director of Women Development and Child Welfare Department resisted the
claim. Their stand was that it had come to the notice of the Government that
some unscrupulous organizations in Andhra Pradesh were indulging in child
trafficking. With a view to curb menaces, the Government had issued. G.0.Ms.
No.16 of 2001 banning relinquishment of a child. Since the claim of the D
appellant was based primarily on a Relinquishment Deed purported to have
been executed by the mother of the child, inquiry was directed to be conducted
by the Crime Branch of CID along with other cases. After inquiry, Crime
Branch (CID) reported that the Relinquishment Deed was a fake and fabricated
document and the witnesses to the Relinquishment Deed were employees of E
appellant no. I. Therefore, paper notification dated 4.6.200 I was made calling
for claims by biological parents within 30 days in respect of child Sahiti and
eight other cases. The Government of India had also addressed to the Central
Adoption Resource Agency (in short 'CARA') about the false claim made by
appellant no. I and requested to initiate action against appellant no. I. The
Family Court rejected the application holding that the VCA issued no objection F
certificate on the ground that Indian parents had refused to adopt the child
on the ground that she was suffered from skin disease. The Family Court was
of the view that the so called reasons did not merit acceptance. The child was
also referred to child study report which indicated that the child did not suffer
from any ailment. It was noted that letters of rejection by Indian parents were G
not filed and the efforts of VCA for in county adoption were not established.
It was noted that the effort was to be made in the light of decision of this
Court in Lakshmi Kant Pandey v. Union of India, [1984] 2 SCC 244. It was
noted that in term of G.0.Ms. No.16 of 2001 relinquishment of a child by
biological parents on grounds of poverty, number of children or unwanted girl
child could not be permitted. Accordingly the petition filed was rejected.        H
    490                        SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A         The view of the Family Court was affirmed by the High Court. High
    Court noticed that appellant no. I based its claim on fabricated document and
    there was no genuine effort to see that the child was adopted by Indian
    parents.

          In support of the appeal learned counsel for the appellants submitted
B that all possible efforts have been made to see that the child is adopted by
    Indian parents. It is not a fact that the child was not suffering from ailments.
    If the child is kept in the care and custody of the respondent no. I and is sent
    to the children's home it would be traumatic for the child who has spent five
    years with the appellant no. I quite happily. The State Government has accepted
C   in public interest litigation that the children who have been transferred to
    Shishu Vihar run by the State Government are in a very pathetic condition.
    More than l 00 children have lost their lives due to negligence on the part of
    the authority running the home and because of poor medical care, and even
    many of the children have ran away. It is stated that all possible efforts have.
    been made to find out Indian parents without success. The request of appellants
D   2 and 3 for adopting the child should have been accepted as they were willing
    to adopt the child. Because of prolonged litigation, they have shown some
    reluctance. Therefore, permission should be given to appellant no. I to arrange
    adoption by way of inter-country adoption.

          In Lakshmi Kant Pandey case (supra) the guidelines and the norms to
E be followed in the case of adoption by foreigners were indicated in detail.
          It is obvious that in a civilized society the importance of child welfare
    cannot be over-emphasized, because the welfare of the entire community, its
    growth and development, depends on the health and well-being of its children.
F Children are a "supre·mely important national asset" and the future well-being
    of the nation depends on how its children grow and develop. The great poet
    Milton put it admirably when he said : "Child shows the man as morning
    shows the day" and the Study Team on Social Welfare said much to the same
    effect when it observed that "the physical and mental health of the nation is
    determined largely by the manner in which it is shaped in the early stages".
G · The child is a soul with a being, a nature and capacities of its own, who must
    be helped to find them, to grow into their maturity into fullness of physical
    and vital energy and the utmost breath, depth and height of its emotional,
    intellectual and spiritual being; otherwise there cannot be a healthy growth
    of the nation. The child is father of the man, said Wordsworth in "My Heart
H Leaps up". Now, obviously children need special protection because of their
                ST. THERESA'STENDERLOVJNGCAREHOMEv. STATE OF A.P. [PASAYAT,J.]      491

         tender age and physique, mental immaturity and incapacity to look after            A
         themselves. That is why there is a growing realisation in every part of the
         globe that children must be brought up in an atmosphere oflove and affection
         and under the tender care and attention of parents so that they may be able
         to attain full emotional, intellectual and spiritual stability and maturity and
         acquire self-confidence and self-respect and a balanced view of life with full
         appreciation and realisation of the role which they have to play in the nation     B
         building process. Without that the nation cannot develop and attain real
         prosperity because a large segment of the society would then be left out of
         the developmental process. In India this consciousness is reflected in the
         provisions enacted in the Constitution of India, 1950 (in short the
         'Constitution'). Clause (3) of Article 15 enables the State to make special        C
         provision, inter-alia, for children and Article 24 provides that no child below
         the age of fourteen years shall be employed to work in any factory or mine
         or engaged in any other hazardous employment. Clauses (e) and (t) of Article
         39 provide that the State shall direct its policy towards securing inter-alia
'·       that the tender age of children is not abused, that citizens are not forced by
         economic necessity to enter avocations unsuited to their age and· strength         D
         and that children are given opportunities and facilities to develop in a healthy
         manner and in conditions of freedom and dignity and that childhood and
         youth are protected against exploitation and against moral and. material
         abandonment. These constitutional provisions reflect the great anxiety of the
         constitution makers to protect and safeguard the interest and welfare of           E
         children in the country. As was observed by a learned Justice Children are
         innocent, vulnerable and dependent. Abondoning children and encluding
         good foundation of life for them is a crime against humanity. Children cannot
         and should not be treated as chattels or saleable commodities or play things.
         For full and harmonious development of their personality, children should
         grow up in an atmosphere of happiness, love and understanding . In old             F
         Testament Proverbs , XXII it is said "Train up a child in the way he should
         go, and when he is old, he will not depart from it". In "The Crescent Moon"
         Rabindranath Tagore said "l do not love him because he is good, but because
         he is my little child":The Government of India has also in pursuance of these
     \   constitutional provisions evolved a National Policy for the Welfare of Children.   G
         This Policy starts with a goal-oriented perambulatory introduction:

                     The nation's children are a supremely important asset. Their nurture
                 and solicitude are our responsibility. Children's programme should
                 find a prominent part in out national plans for the development of
                 human resources, so that our children grow up to become robust             H
    492                         SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A           citizens, physically fit, mentally alert and morally healthy, endowed
            with the skills and motivations needed by society. Equal opportunities
            for development to all children during the period of growth should be
            our aim, for this would serve out larger purpose of reducing inequality
            and ensuring social justice.

B         The measures are designed to protect children against neglect, cruelty
    and exploitation and to strengthen family ties "so that full potentialities of
    growth of children are realised within the normal family neighborhood and
    community environment". The National Policy also lays down priority in
    programme formation and it gives fairly high priority to maintenance, education
C   and training of orphan and destitute children. There is also provision in the
    National Policy for constitution of a National Children's Board. It is the
    function of the National Children's Board to provide a focus for planning,
    review and proper coordination of the multiplicity of services striving to meet
    the needs of children and to ensure at different levels continuous planning,
    review and coordination of all the essential service.
D
          The essence of the directions given in Lakshmi Kant Pandey case
    (supra) .is as follows:

           (I) Every effort must be made first to see if the child can be
           rehabilitated by adoption within the country and if that is not possible,
E          then only adoption by foreign parents, or as it is some time called
           'inter-country adoption' should be acceptable.

           (2) Such inter-country adoption should be permitted after exhausting
           the possibility of adoption within the country by Indian parents.

            (3) There"is a great demand for adoption of children from India and
F
           ·consequently there is increasing danger of ill-equipped and sometimes
            even undesirable organisations or individuals activising themselves in
            the field of inter-county adoption with a view to trafficking in children.

           (4) Following are the requirements which should be insisted upon so
                                                                                         (
G          far as a foreigner wishing to take a child in adoption is concerned. In
           the first place, every application from a foreigner desiring to adopt a
           child must be sponsored by a social or child welfare agency recognised
           or licensed by the government of the country in which the foreigner
           is resident. No application by foreigner for taking a child in adoption
           should be entertained directly by any social or welfare agency in India
H          working in the area of inter-country adoption or by any institution or
ST. THERESA'S TENDER LOVING CARE HOMEv. STATE OF AP. [PASAYAT, J.]   493

 centre or home to which children are committed by the juvenile court.     A
 This is essential primarily for three reasons.

Firstly, it will help to reduce, if not eliminate altogether, the possibility
of profiteering and trafficking in children, because if a foreigner were
allowed to contact directly agencies or individuals in India for the
purpose of obtaining a child in adoption, he might, in his anxiety to ' B
secure a child for adoption, be induced or persuaded to pay any
unconscionable or unreasonable amount which might be demanded
by the agency or individual procuring the child. Secondly it would be
almost impossible for the court to satisfy itself that the foreigner who
wishes to take the child in adoption would be suitable as a parent for C
the child and whether he would be able to provide a stable and secure
family life to the child and would be able to handle trans-racial, trans-
cultural and trans-national problems likely to arise from such adoption,
because, where the application for adopting a child has not been
sponsored by a social or child welfare agency in the country of the
foreigner, there would be no proper and satisfactory home study D
report on which the court can rely. Thirdly, in such a case, where the
application of a foreigner for taking a child in adoption is made
directly without the intervention of a social or child welfare agency,
there would be no authority or agency in the country of the foreigner
who could be made responsible for supervising the progress of the
child and ensuring that the child is adopted at the earliest in E
accordance with law and grows up in an atmosphere of warmth and
affection with moral and material security assured to it. The record
shows that in every foreign country where children form India are
taken in adoption, there are social and child. welfare agency licensed
or recognised by the government and it would not therefore use any F
difficulty, hardship or inconvenience if it is insisted that every
application form a foreigner for taking a child in adoption must be
sponsored by a social or child welfare agency licensed or recognised
by the government of the county in which the foreigner resides. It is
not necessary that there should be only one social or child welfare
agency in the foreign country through which an application for G
adoption of a child may be routed; there may be more than one such
social or child welfare agencies, but every such social or child welfare
agency must be licensed or recognised by the government of the
foreign country and the court should not make an order for
appointment of the foreign country and the court should not make an H
    494                       SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A         rode for appointment of a foreigner as guardian unless it is satisfied
          that the application of the foreigner for adopting a child has been
          sponsored by such social or child welfare agency.

          (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
B         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 about
c         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
                                                                                      ..
D         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
E         allowed to them to reconsider their decision.

          (6) But in order to eliminate any possibility of mischief and to make
          sure that the child has in fact been surrendered by its biological
          parents, it is necessary that the institution or center or home for child
          cate or social or child welfare agency to which the child is surrendered
F         by the biological parents, should take from the biological parents a
          document of surrender duty signed by the biological parents and
          attested by at least two responsible persons and such document of
          surrender should not only contain the names of the biological parents
          and their address but also information in regard to the brother of the
G         child and its background, health and development.

          But where the child is an orphan, destitute or abandoned child and
          its parents are not known, the institution or center or home for child
          card or hospital or social or child welfare agency in whose care the·
          child has come, must try to trace the biological parents of the child
H         and if the biological parents can be traced name it is found that they
       ST. THERESA'S TENDER LOVING CARE HOME v. STATE OF A.P. [PASAYAT,J.]   495

        do not want to take back the child, then the same procedure as             A
        outlined above should as far as possible be followed. But if for any
        reason the biological parents cannot be traced, then there can be no
        question of taking their consent or consulting them. It may also be
        pointed out that the biological parents should not be induced or
        encouraged or even be permitted to take a decision in regard to giving     B
        of a child in adoption before the birth of the child or within a period
        of three months from the date of birth. This precaution is necessary
        because the biological parents must have reasonable time after the
        birth of the child to take a decision whether to rear up the child
        themselves or to relinquish it for adoption and moreover it may be
        necessary to allow some time to the child to overcome any health           C
        problems experienced after birth.

       (7) Of course, it would be desirable if a Central Adoption Resource
       Agency is set up by the Government of India with regional branches
       at a few centers which are active in inter-country adoptions. Such
       Central Adoption Research Agency can act as a clearing house of             D
       infonnation in regard to children available for inter-country adoption
       and all applications by foreigners for taking Indian children in adoption
       can then be forwarded by the social or child welfare agency in the
       foreign country to such Central Adoption Resource Agency and the
       latter can in its turn forward agencies in the courts. Every social or
       child welfare agency taking children under its care can then be required    E
       to sent to such Central Adoption Resource Agency the names and
       particulars of children under its care who are available for adoption
       and the names and particulars of such children can be entered in a
       register to be maintained by such Central Adoption Resource Agency."
                                                                                   F
      In terms of this Court's decision in Lakshmi Kant Pandey case (supra),
CARA was formed and it published "Guidelines for adoption". Under these
guidelines every State has a VCA to co-ordinate and oversees inter-state
adoptions.

      It is pointed by Mr. Colin Gonsalves who was requested to assist in the G
matter though the intervention application filed by him on behalf of Parchuri
Jamuna was rejected, that in some States the VCA is a non-governmental
organization (in short 'NGO') and in some other States the Department of
Women arid Child Development. In the State of Andhra Pradesh, the said
Department is VCA. Several guidelines have been issued from time to time.
                                                                                   H
    496                        SUPREME COURT-REPORTS (2005) SUPP. 4 S.C.R.

A The Government of India, Ministry of Welfare has also issued directions .. On
    the basis of Lakshmi Kant Pandey case (supra) the Government oflndia has
    issued certain guidelines vide its ResolutionNo.13-33/85-CH(AC) dated 4th
    July, 1989. Subsequently, some cfarifictory orders were passed by this Court
    on 19th September, 1989, 14th August, 1991, 29th October, 1991, 14th November,
    1991and20th November, 1991. A Task Force was constituted on 12th August,
B   1992 under chairmanship of retired Chief Justice of this Court. Report was
    submitted by the Task Force on 28.8.1993. On the basis of the recommendations
    made certain guidelines were also issued by the Ministry of Welfare Resolution
    dated 29th May, 1995.

C       In the background of what has been noticed by the Family Court and
  the High Court it is crystal clear that the orders passed do not suffer from
  any infirmity to warrant interference. It has been printed out by learned
  counsel for the State and Mr. Gonsalves, that the appellant no. 1 has been
  prosecution for offences punishable under various provisions of the Indian
  Penal Code, 1860 (in short'IPC'). The accusations relate to cheating,
D manipulation/fabrication of documents. Some of the functionaries of the
  appellant no. 1 have already been convicted while permitting any organization
  to keep a child or give him or her in adoption its credentials are to be minutely
  scrutinized. It should be ensured that behind the mask of social service or
  upliftment and evil design of child trafficking is not lurking. It is the duty of
E the State to ensure a safe roof over an abandoned child. Keeping in view the
  welfare of the child all possible efforts should be made by the State
  Governments to explore e possibility of adoption under the supervision of the
  designated agency. Keeping in view the guidelines indicated by this Court in
  Lakshmi Kant Pandey case (supra) adoption by foreign parents may in
  appropriate cases be permitted.
F
        While making the requisite and prescribed exercise it has to be kept in
  mind that child is a precious gift and merely because he or she for various
  reasons is abandoned by the parents that cannot be a reason for further
  neglect by the society. It is urged that some account of vehemence by learned
  counsel for the appellants that the children homes run by the State Governments
G are really no place when a child is to be placed. They suffer from neglect,
  proper care is a myth and a large number of children have lost their lives or
  are unable to bear the cruelties meted out. If the grievances are true, it is a
  matter of serious concern. The Central Government and the State Government
  would do well to look at these problems with the humanitarian approach and
H concern they deserve.
       ST. THERESA'S TENDER LOVING CARE HOME v. STATE OF A.P. [PASA YAT, J.]   497

      It would be appropriate for them to keep the following lines from              A
Longfellows "The Children's Hour" in mind. "Between the dark and the
daylight, when the night is beginning to lower, comes a pause in the day's
occupations, that is known as the Children's Hours"

      With the aforesaid observations the appeal is dismissed with no orders
as to costs.                                                                         B
D.G.                                                           Appeal dismissed.