# LAKSHMI KANT PANDEY v. UNION OF )NDIA

- **Citation:** [1984] 2 S.C.R. 795
- **Court:** Supreme Court of India
- **Decided:** 1984-02-06
- **Bench:** P. N. Bhagwati, R. ·s. PATHAK, Amarendra Nath Sbn
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lakshmi-kant-pandey-v-union-of-ndia-8734
- **Pages:** 58

## Headnote

Adoption of Children bY foreigners-Intra-national adoptions-Normative
and Procedurai safeguards to be insisted 'upon so far as a foreigner wishing to take
A
B
a child in adoption, outlined-Constit,;t;on of India, 1950 Artie/es 15,24 and 39
C
and Guardian and Wards Act (Act VIII of 1890), Section-~ 7 to.9 a1Jd ]].
The petitioner, an advocate of the Supreme Court addressed a letter in
public interest to the Court, complaining of mat-practices indulged in by social
· organiSation and vnlunhiry agencies engaged in the work of offering Indian
Children in adoption to foreign parents, the petitioner alleged that not only
Indian Children of tender age are under the guise of adoption "exposed to the
Jong horrendous journey to distant foreign countries at great risk to their ·lives
but in cases where they survive and where these children are not placed in the
shelter and Relief Houses, they in course of time become beggars or prostitutes
' for want of .proper ·care from their alleged fo&ter parents." The p~titi.oner,
accordingly, sought relief restraining Indian based private agencies ''from
carrying put further activity of routing children for adopticn abroad" and
directing the Government of India, the Indian Council of Child Welfare and the
Indian Council of Social Welfare to carry out their obligations in the· matter of
ador)tion of Indian Children by Foreign parents. Being a public interest litiga.
tion, the letter wa.s treated as a writ petition.
Disposing of the Writ Petition, after indicating· the principles and norms
to be observed in giving a Child in adoption to foreign p3.re~ts, the Court
HELD : 1 : I. Every child has a right to love and be loved and to
grow up in an atmosphere of love and affection and of moral and material
security and this is possible cnly if the child is brought up in a family. The
most congenial environment would, of cotlrse, be that of the family of his bio.
logic2't parents. But if for any reason it is not possible for the biolog'cal
parents or other near relative to look after the child or the child is abandoned
and it is either not possible to trace the parenrs or the parents .are not willin_g
to take care cif the child, the next best alternative would be to·find adoptive
parents for the child so ihat the child can grow up unde'r the loving care and
attentiob of the adopthe :)arents. The adootive parents would be the next best
substitute fo~ the biological parents. [8J3E·F]
'
'
1 : 2. When the parents of a child want to give it away in adoption or
the child is abandOned and it is considered necessary in the inte:est of the 9hild
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796
StlPRl!MB COURT REPOFTS
(1984) 2 S.C.R.
to give it in adoption, every effort must be made first to find adoptive parents
fOr it within the country, because such adoP· ion would steer clear of any pro·
bJcms of assimilation of the child in the family of the adoptive parents which
migi.1t arise on account of cultural, racial ur linguistic diftCrences in case of
adoption of the child by foreign parents. If it is not possible to find
suitable adoptive parents for the child within the country, it may become
necessary to give the 'Child in adoption to foreign parents· rather than allow
the child to grow up in an orphanage or an institution where it will have no
family life and no love and affeciion of parents and quite often, in the socioeconomic conditions prevailing in the country, it might have to lead the life of
a destitute, half clad, half.hungry and sufferin5 from mal-nu1rition and
illness. [ • '4B· DJ
2: I. The primary object of giving the child in adoption should be the
welfare of the child. Great care has to be exercised in permit ting the child to
be given in adoption to foreign parents, lest_ the chi l.d may ·be neglected or
abandoned by tbe adoptive parenls in the foreign country or the adoptive
parents may n~t be able to provide to the child a life or moral or material
securi1y or the child may be subjected to moral or sexual abuse or forc

## Text

_Characters 0–39,573 of 150,251. This is a partial read: ask again with offset=39573 for what follows._

1 .
795
LAKSHMI KANT PANDEY
v.
UNION OF )NDIA
February 6, 1984
[P. N. BHAGWATI, R. ·s. PATHAK AND AMARENDRA NATH SBN, JJ.]
Adoption of Children bY foreigners-Intra-national adoptions-Normative
and Procedurai safeguards to be insisted 'upon so far as a foreigner wishing to take
A
B
a child in adoption, outlined-Constit,;t;on of India, 1950 Artie/es 15,24 and 39
C
and Guardian and Wards Act (Act VIII of 1890), Section-~ 7 to.9 a1Jd ]].
The petitioner, an advocate of the Supreme Court addressed a letter in
public interest to the Court, complaining of mat-practices indulged in by social
· organiSation and vnlunhiry agencies engaged in the work of offering Indian
Children in adoption to foreign parents, the petitioner alleged that not only
Indian Children of tender age are under the guise of adoption "exposed to the
Jong horrendous journey to distant foreign countries at great risk to their ·lives
but in cases where they survive and where these children are not placed in the
shelter and Relief Houses, they in course of time become beggars or prostitutes
' for want of .proper ·care from their alleged fo&ter parents." The p~titi.oner,
accordingly, sought relief restraining Indian based private agencies ''from
carrying put further activity of routing children for adopticn abroad" and
directing the Government of India, the Indian Council of Child Welfare and the
Indian Council of Social Welfare to carry out their obligations in the· matter of
ador)tion of Indian Children by Foreign parents. Being a public interest litiga.
tion, the letter wa.s treated as a writ petition.
Disposing of the Writ Petition, after indicating· the principles and norms
to be observed in giving a Child in adoption to foreign p3.re~ts, the Court
HELD : 1 : I. Every child has a right to love and be loved and to
grow up in an atmosphere of love and affection and of moral and material
security and this is possible cnly if the child is brought up in a family. The
most congenial environment would, of cotlrse, be that of the family of his bio.
logic2't parents. But if for any reason it is not possible for the biolog'cal
parents or other near relative to look after the child or the child is abandoned
and it is either not possible to trace the parenrs or the parents .are not willin_g
to take care cif the child, the next best alternative would be to·find adoptive
parents for the child so ihat the child can grow up unde'r the loving care and
attentiob of the adopthe :)arents. The adootive parents would be the next best
substitute fo~ the biological parents. [8J3E·F]
'
'
1 : 2. When the parents of a child want to give it away in adoption or
the child is abandOned and it is considered necessary in the inte:est of the 9hild
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StlPRl!MB COURT REPOFTS
(1984) 2 S.C.R.
to give it in adoption, every effort must be made first to find adoptive parents
fOr it within the country, because such adoP· ion would steer clear of any pro·
bJcms of assimilation of the child in the family of the adoptive parents which
migi.1t arise on account of cultural, racial ur linguistic diftCrences in case of
adoption of the child by foreign parents. If it is not possible to find
suitable adoptive parents for the child within the country, it may become
necessary to give the 'Child in adoption to foreign parents· rather than allow
the child to grow up in an orphanage or an institution where it will have no
family life and no love and affeciion of parents and quite often, in the socioeconomic conditions prevailing in the country, it might have to lead the life of
a destitute, half clad, half.hungry and sufferin5 from mal-nu1rition and
illness. [ • '4B· DJ
2: I. The primary object of giving the child in adoption should be the
welfare of the child. Great care has to be exercised in permit ting the child to
be given in adoption to foreign parents, lest_ the chi l.d may ·be neglected or
abandoned by tbe adoptive parenls in the foreign country or the adoptive
parents may n~t be able to provide to the child a life or moral or material
securi1y or the child may be subjected to moral or sexual abuse or forced labour
or e1;perimentation for meidcal or other research and n,ay be placed in a worse
situation than that in his own country. [i:ll~G-H; 8l6A]
2 : 2. Since there is no statutory enactment in our country providing for
adoption of a_ child by foreign parents or laying down the procedure which must
be followed in such a case, resort is had to the provbions of the Guardians and
Wards Act, 1890 for tl1e purpo!'e of facilitating such adoption. [8 ~4G]
2 : 3. The High Courts of Bombay, Delhi and Gujarat have laid down
by Rules and Instructions certain procedure when a foreigner makes an application for adoption under the Guardian and Wards Act including issuing of a
notice to the Indian Council of Social Welfare and other otllcially recognised
social welfare agencies with a view to assist the ClJUrl in properly and carefully
scrutinising the applications of the foreign parents for determining whether it
will be in the interest of the child and promotive of its welfare, 1 o be adopred
by ihe foreign parents making the application or in other words, whether such
adoption will provide moral and material security to the child wi h an opportu~
nity to grow into the fu!I stature of its personality in an atmosphere of ll:ve and
affection and warmth of a family he.,rth and home. This procedure is eminently
desirable and it can help considerably to reduce, if not e'iminate, the possibility
of the child being adopted by unsuitable or undesirable parents or being placed
in a family where it may be neglected, maltreated or exploited by the adoptive
parents. [828B-E]
·
Rasik/al Chaganlal M~hta's case A.f.R. 1982 Gujarat 193, approved.
3 : i. The requirements which
~hould be insisted upon so far ali a
foreigner wishing to take a child in adoption and the procedure that should be
followed for the purpose of ensuring that such inter-country adopt;on'l do not
lead to abuse mal-treatment or exploitation of children and secure to them a
healthy, decent family life are as under :
(I) Every application from a foreigner desiring to adopt a child must.be
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1..K., PANDEY i>. UNiON
797
sponsored bY. a social or child- welfare agency recognised or licensed by the
governinent of the country in which the foreigner is resident. No application
by a foreigner tor taking a child in adoplioil should be entertained dircc ly by
any social or welfare ageilcy of India working in the area of inter· country
adoption or by any institution or centre or home to which children are com·
mitted by the juvenile court. This is essential primarily for three reasons.
.
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[8JIG-H]
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 sc;;cure a
child for adoption, -be induced or persuaded to pay any unconscionable
or unreasonable
amount which might. be demanded by
the agency o
individual procuring the child. Secondly it would be
almost importsi·
blc for the
court to satisfy itself that the foreigner who wishes to take
the child in adoption would be suitable as a parent for the child and whether he
would be able to provide a stable and secure famiJy life to' the child- and would
be able ro hand!re trans·racial, trans.cultural and trans.national problems
likely to arise from such adoption, because where the application for adopting
a child _has not be~n sponsored by a social or child welfa1c agency in the country
of the foreigner, there would be no proper and salisfactory home study report
on which the court can rely. Thirdly, in such a case, wh~re the application of
a foreigner for taking a child in adoption is made directly without the inter·
vention of a social or child welfare agency, 'there would be no authority or
agency in the country of, the foreigner wh9 could be made responsible fur super·
vising the progress of the child and ensuring that the child is adopted at the
earliest in accordance with law and grows up in an atmosphere of warmth and
affection ·with moral and material security assured to it. [832A-E]
Every application of a foreigner for taking a child in adoption must be
accompanied by a borne study report and the ~ocial Or child welfare agency
spOosor in such appJ.cation should also send along with it a recent photograph
of the family, a marriage certificate of the foreir.ner and his or her spouse as
also a declaration concerning their health together with a certificate regarding
rheir medical fitness duly certified by a medical doctor, a declaration regarding
their financial Slatus alongwith supporting documents including employer's
certificate where applicable, incorlle-tax assessment orders, bank references and·
particulars concerning the properties owned by them, and also a declaratiorl
stating that they are willing to be appoinied guardian of the child and an undei·
taking that they would adopt the child according to the law cf their country
within a period of not more than two years· from time of arrival of the child in
their country and give intimation of such adoption to 1he court appointing
them as guardian.as also to the social or child welfare agency in Jndia proces.
sing tbeir case, and that they would maintain the child and provide it necessary
education and up· bringing according to their status and they would also send
to the court as also to the social or child welfare agency in lndi'a reports relat·
ing to the progress of the child alongwith its recent photograph, the fn.quency
of such progress reports being quarterly duriug the first two years and half
yearly for the next three years. The application of the foreigner must also be
accompanied by a Power of Attorney in favour of an Officer of the ~oci8I or
child welfare agency in India which is requested to process the case and such
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SUPltEME COURT REPOltTS
[1984) 2 S.C.R.
Power of Attorniy should authorise the Attorney to handle the case on behalf
of the . foreigner in ca.:;e the foreigner is not in a position to come to India.
The social or child welfare agency sponsoring the application of the foreigner
1nust also certify that the foreigner seeking to adopt a child is permitted to do
so according to the law of his country. These certificates, declarations and
documents must accompany the:' application of the foreigner for taking child in
adoption, shouid be duly notarised by a Notary Public Whose signature should
be duly attested either by an Officer of the Ministry of External Affairs or
Justice or Social Welfare of the country of the foreigner or by an Officer of
the Indian Embassy or High Commission or Consulate in that country: The
social or child welfare agency sponsoring the applicatioh of the forcipner must
also undertake while forwarding the application to the social or child welfare
agency in India, that it will ensure adoption of the child by the foreigner
according to the law of his country within a period not exceeding two years
and as soon as the adoption is affected, it will send two ·certified} copies of '
1he adoption order to the social or child welfare agency in India through
which the application for guardianship is processc~. so that one c;;opy can be
filed in court and the 01her can remain with the social ol· child welfare agency
in India. The social or child welfare agency sponsoring the application must
also agree to send to the concerned social or child welfare agency in India
Progress reports in regard to the child, Quarterly during the first year and half
yearly for the subsequent year nr years until the adotrtion is effected. and it
must also undertake that iri case of disruption of the family of the foreigner
before adoptiori can be effected, it wilt take care of the child and find a suitable
alternative placement for it with the approval of the concerned social or child
welfare agency in India and report such alternative placement to the .court
handling the guardianship proceedings and such information shall be passed
on both by the court as also ·by the concerned social or child welfare agency
in India to the Secretary~ Ministry of Social Welfare, Government of India.
[8l3C-H; 834A-E]
3: 2. The Government of India shall Prepare a list of social or child
welfare agencies licensed· or recognised for inter-country adoption by lhe
Government of each foreign country where children from India are taken iri
adoption and this list shall be prepared after getting the necessary information
from the government of each such foreign country and the Indian Diplomatic
Mission in that foreign country. Such lists shall be supplied by the Governm;nt of India ·to the various High Courts in India as also to the social or child
welfare agencies operating in India in the area of inter-country adoption under
licence or recognition from the Government of IAdia. l8J4B F; [835 B]
3 : 3. If the biological parents are known, they should be helped to
under~tand all the implications of adoption including the possibility of adoption by a foreigner and they should be told specifically that in case the child
is adopted, it would not be posllible for them to have any further contact
with the ct>ild
The biological parents should not be sujccted to any dure"ss io
making a decision about "relinquishment and cveo aftert hey have taken a deci~
sion to relinQuish the child f0r giving in adoption, a further period of abo"ut
threemonths should be allowed to them to reconsider their decision.
But once
the decision is taken and riot reconsidered within such further time as may be
allowed to them, it must be regarded as irrevocable and the proc~ urc for
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L. IC PANDEY V. UNION
799
giving the child in adoption to a foreigner can then be initiated without any
further reference to the bi_ologica\ parents by fil(ng an application for appointment. of the foreigner as guardian of the child. Th:reafter there can be no
question of once again consulting the biological parents whether they wish· to
give· the cfiild in adoption or they want to take it back. But in order to eliminare any possibility of mischief and to rriake sure that the child bas in fact
surrendered by its biological parents,
i_t is necessary that the Institution
or Centre or home for Child Care or social or Child Welfare Agency to
which the chiJd ·is surrendered _by 1he biological parents, should take fiom the
biological parents a document of surrender duly signed by the biological
parents and attested by at least two responsible persons nnd such document
of surrender should not only contain the names of the biological parents and
their address but also information in regard to the birth of the child and its
background, heaith and development. If the biological parents state a prefe- .
rence for· the religious upbringing of the child, their wish should as far as
possible be respected. but ultimately the interest of the child alone should be
the sole guiding factor and the biologic:il parents should be informed that the
child n1ay be given in adoption even to a foreigner who professes a religion
different from that of the biological parents. The biological parents ... should
not be induced or encouraged oi" even be permitted to take a decision in
re_gard to giving of a child in adoption before the birth cf a ch.ild or within
a period of three months fro1n the date of birth. This precaution is necessary because the biological parents must have reasonable time after 1he birth
of the chi id to take a ·decision whether to rear up the child themselves or to
relinquish it for adoption and mort·over it n1ay be necessary to allow some
time to the child to overcome any health problems experienced afcer: birth.
[835-H; 8!6A-D; 836G·H]
3: 4. It should nc.t be open to any and every agency or individual to
process an application from a foreigner for taking a child in adoption and such
application .should be processed only through a social or child welfare agency
licensed or recognised by the Government 6f India or the Government of the
State in which it is operating. Since an application for appointment as
guardian can be processed onJy by a recognised social or child welfare agency
and no~e e!Se, any unrecognised institution, centre or agency w·hich has a
chilJ under its care would have to approach a. recognised social or child
welfare agency if it desires such child to be given in inter-countiy adoption,
and in that event it must send without any undue delay the name and must
send without any undue delay the name and particulars of such child to the
recognised social or child welfare agency throu.gh which such child is proposed
to be giv~n in inter-country adoption. The Indian Council of Social Welfare
and the Indian Council for Child Welfare are clearly tWo social or Child welfare
agencies operating at the national le"vel and recognised by the Government
of Jndia. But apart from these two recogoh,ed social or child welfare agencies
functioning at the national level, there are other social 'or child welfare agencies
engaged in child care and welfare and if they have goo·d standing and reputa·
tion and are doing . commendable work in the are of child care and welfare
they should also be recognised by the Government of India or the Governffient
of the State for the purpose of inter·country adoptions. 'But before taking a
decision to reconise any particular social or child weJfate agency for the purpose ofinter-couritry adoptions the Government of India or the GOvemment
of a State would do well to examine whether the social Or child welfare agency
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SUPREME COURT k.EPORTS
[1984] 2 s.c.R.
has proper staff with professional social work experience, because otherwise
it may not be possible for the social or child welfare agency to carry out satisfactorily the highly responsible task of ensuring proper placement of a ·child
with a foreign adoptive family. The Government of India or th c Government of a State recognising any social or child welfare agency for inter-country
adoptions rnust insist as a condition of recognition that the social or child
welfare a.gency shall maintain proper accounts which shall be au.dited by a
charte-red accountant at the end ·of every year and it shall not charge to the
foreigner wishing to adopt a child any amount in excess of that actually incurred by way of legal or other ex:pensrs in connection with the application
for appointment of guardian inclt!ding such
reasonable remuneration or
honorarium for the work done al)d trouble taken in processing, filing and
pursuing the application as may be fi<ed by the Court .. [837B-H; 838A-D]
3 :- 5. Every recognised social or child welfare agency must maintain _a
register in which the names and particulars of all children proposed to be
given in inter-country adoption through it must be entered and in regard . to
each such child, the recognised social or child welfare agency must prepare a
child study report through a professional social worker t_.:iving all reJevent
information in regard to jhe child so as to help the foreigner to come to a
decision whether or not to adopt the child and to understar d the child, if he
decides to adopt it as also to assist the court Jn coming to a decision whether
it will be for the welfare of the child tb be given in adoption to the foreigner
wishing to adopt it. The child study report should contain as far as poss ble
information in regard to the folJowing matters :--
(l) Identifying information, supported where possible by documents.
(2) Information about original parents, including their heaJth and details
of the mother's pregnancy and birth.
(3) Physical, intellectual and emotional development.
(4) Health report prepared by a registered medical practitioner preferably by a paediatrician.
(5) Recent photograph.
(6) Present environment-category of care (Own home, foster home,
institution etc,) relationships routines and habits.
(7) Social worker's assessment and reasons for suggesting inter-country
adoption. [838G-H; 839A·E]
G
3 : 6. The recognised social or child welfare agency must insist upon
approval of a specific known child and once 1hat approval is obtained the
recognise:i
~ocial or child welfare agency should immediately without any
undue delay proceed to make an application for appointment of tlie foreigner
as guardian of the chiJd. Such application would have to be made in the
court within whose jurisdiction the child ordinarily resides and it must be
accompanied by copies of the home study report, the child study report and
H
other certificates and documents forwarded by the social or child welfare agency
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L. K, PANDBY v. UNION
801
sponsoring the application of the foreigner for taking lhe child in adoption.
It is also neces~ary that the recognised social or child welfare agency through
which an application of a foreigner for taking a chi1d in adOption is routed
must before offering a child in a'ctoption, m1ke sure that the child is free to be ·
adopted. The recagnised social or child welfare agency must place sufficient
material before .the court to 'satisfy it that the child is legally available for
adoption. It is also necessary that the recognised social or child welfare
agency must satisfy itself, firstly,~ th~t there is no impediment in the way of
the Child entering the country of the prospective adoptive parent; secondly.
that the travel documents for the child can be obtained at the appropriate iime
and lastly, that' the law of .the country of the prospective adoptive parent
permits legal adoption of the child and that on such legal adoption being
cOnciuded, the child would acquire the same legal status and rights of inberi·
tance as a natural born child and would be grarited citizenship ;n the country
of adoption and it should file alongwitb the application for guardianship, a
certificate reciting such satisfaction. [841C·D; 842H; 843A·D]
3 : 7. · In caaes where a child relinquished by its b1ological parents or
an orphan or destitu.tc or abandoned child is brought by an agency or individual from one State to another, there should be no objection to a social or
child welfare agency. taking the cbiJd to another State, even it the objl!ct
be to give it in adoption, provided there aro sufficient safeguards .to ensure that
such social· o_r child welfare agency does not indulge in any mal·practicc.
There should also be no difficulty to apply for guardianship of the child in
the court of the latter State. because the child not having any permanent
place of residence would then be ordi0ari1y resident in the place where it
is in the care and custody of such aiency or individual.
[8~3H; 844A-F]
Section 11 of the Guardians and Wards Act, 1890 provides for notice
of the application to be issued to various persons incl.uding the parents of the
child if they are residing in any State to which the Act extends. But, no notice
under this section ·should be issued to the biological parents of the child,
since it would create considerable amount of embarrassment and hardship if
the biological parents were 1hen to come forward and oppose the application
of the prospective adoptive parent for guardianship of the child. Moreover,
the biological parents would then come to know who is the person taking the
child in adoption and with this knowledge they would at any time be able to
trace the whereabouts of the child and they may try to contact tl'le child
resulting in emo1ional and psychological disturbance for the child which might
affect his future happiness. for the same reasons, ·notice of the application
for guardianship should also not be puplished in an); newspaper.· It. the court
is satisfied, after giving notice of the application to the Indian Council of
Child welfare or the Indian Council for Social Welfare or any of its branches
for scrutiny of the application, that it will be for the welfare of.the child to be
give io adoption to the foreigner making the application for guardianship, it
will only then make an order appointing the foreigner as guardian of the child
and permitting him to remove ihe child to his own Country with a vie~ to
eventual adoption. The Court will introduce the following conditions in the
order, namely : [846A:H; 848A·B]
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SUPREME COURT REPORTS
(1984] 2 S;C.R.
provision by way of deposit or bond or otherwise to enable the child
to be repatriated to lndia should it become necessary for any· reason.
[847C]
(ii) That 1he foreigner who is appointed guardian shall submit to the
court as ~ilso to the Social or Child Welfare Agency processing the
application for guardi?nship, progress repOrts of the child along
with a recent photograph quarterly during the first two years and
half yea.rly for the aext throe years. [8470]
(iii) The order appointing gu :rdian shall carry, atta<;hed to .it, a photograrh of the child duly counter-signed by av officer of the court.
[847F]
Where an order appointing guardian of a child is made by the court,
immediate intimation of the same shall be given to the Ministry of Social Wei·
fare; Govcrnmeni of lndi~ as alsO to the Ministry of Social Welfare of the
Governmen of the State in which the court is situate and copies of such order
sha11 also be forwarded to the two resnective Ministries of Social Welfare. The
Minis1rr of Social Welfare, Government of fr dia shall maintain a register
containing names and other particulars of the children in respect of whom
orders for appointment of guardian have been made as also names, addressea
and other particulars of the prospective
adoptive parents who have been
appointed such guardians· and . who have been permitted to take away the
children for the pufpose of adoption. · The Govt. of India will also sent to the
Indian Embassy or High Commission in the country of «he pirospective adoptive
parents from time to time the names, addresses an~ ·other particulars of such
. prospective adoptive parents together with particulars of the children taken by
them and requesting the Embassy or High Commission to maintain and unobtrusive watch over the welfare and progress of such children in order to safe.
guard against any possible mal-treatment exploitation or use for ulterior
purposes and: to immediately report and instance of rnaJ.treatment, negligence
or ~xploitation to the Government of India for suitable action.
1
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[8470-H; 848A-C]
3 : s. The social or child welfare agency which is looking after the
child selected by a prospective adoptive parent, may legitimately receive from
such prospective adoptive parent maintenance expenses at a rate of not exceed·
ini;i: Rs 60 per day (this outer limit being subjective to revision by the Ministry
of Social Welfare, Government of India from time to time) from the date of
selection of the child by him until the date the child leaves for going to is new
home as also medical rxoense1 including hospitalisation charges, any, actually
incurred by such social or child welfare agency for the child.
But the claim
for payment of .such maintenance charges and medical exp~nses shall be Submitted to the prospective adoptive parent. [842C-D]
3 : 9. Jf a child is to be given in inter.country adoption, it would be
desirable that it is given in such adoption as far as possible before it complete~
the age of 3 years.· The reason is that if a child is adopted before it attains
the ag'! of understanding, it is always easier for it to get assimilated and inte·
grated in the new environment in which it may find itself on being adopted by a
foreign parent. Children above the age of 3 years may also be given in
inter-country adoption
There can be·no hard and fast rule in this connec ..
tion. Even children between the ages of. 3 to 7 years may be able to assimilate
~~~mselves in tl:~.e new s1:1rroundings witho~t any difficult~. Even
f?hildre~
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L, K. PANDEY v. UNION (Bhagwati, J.)
803
above the age of seven years may be giveb in inter·country adoption but theit
wishes may be ascertained if they are in a position to indicate any preference.
'
[845D·G)
3: 10. The proceedings on the Application for guardianship should be
. held by the Court in camera and they should be regarded as confidential and
as soon as an order is made on the application for guardianship the entire
proceedings including the papers and documents should be sealed. [84IC-D]
3: ll. The. social or child welfare agency which is looki11g after the
child selected by a pro!lpeCtive adoptive parent, may legitimately receive from
such prospective adoptive parent mainte~ance expenses at a rate of not excecdind Rs. 60 per day (this outer limit b:!ing subject to revision by the Ministry
of Social Welfare, Government of India. fro01 .. time to time) from the date of
setection Of the child by him until the· date the child leaves for going to its
new horiie as also medical expenses including hospitalisation charges, if any,
actually incurred by sui:h social or child welfare agency for the child. But the
claim for payment of such maintenance charges and ~edical expenses shall be
submitted to .the prospective adoptive parent through the recognised social or
child welfare agency which bas processed the application for guardianshiP and
payfnent _in respect of such claim shall not be,_p.:ceivcd direclly by the social or
child welfare agenc.y making ·the claim but shall be paid only through the
recognised social or child welfare agency. However, a foreigner may make
voluntary donatiOn to any social or child welfare agency bui no su'ch dona·
tion from a prospective adoptive parents shall be received until after the child
has reached the country of its prospective adoptive parent, [842C·G] ·
ORIGINAL JURISDICTION
1982.
Writ Petition (CRL) No. 1171 of
Under article 32 of the Constitution of India.
Petitioner in person .
FOR THE RESPONDENTS :
Miss A. Subhashini for Union of India and Ministry of Social
Welfare.
Miss Kamini Jaiswal for, Indian Council of Social Welfare.
J.B. Dadachanji & Co. for Indian Council of Child Welfare
and Swedish Embassy.
Dr. N. M. Ghatate for all God's Children Inc.
Arizone,
U.S.A.
P.H.' Parekh for Maharashtra· State Women's Council of
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Child Welfare, Bombay and for Enfants de-L'espoir.
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SUPREME COURT REPORTS
(1984] 2 S.C.R.
P.K. Chakeravorty for Legal Aid Service, West Bengal.
Mrs. Manik Karanjawa/a for Indian Associations for Promotion of Adoption ..
Mrs Urmila Kapur for SOS Children's Village of India.
Kai/ash Vasdev for Missionary of Charity, Calcutta.
Ba/dev Raj Respondent in person.
G.M. Coelho Bar at Law for Enfant's du Mande (France)
Miss Rani Jethama/ani for Kuanyin Charitable Trust.
B.M. Bageria for Terre Des Hommes (India) Society.
Sukumar Ghose for Mission of Hope (India) Society, Calcutta.
S.K. Mehta . for Netherlands Inter Country Child Welfare
Oraganisation.
Parijot Sinha for society for International Child Welfare.
Kai/ash Vasdev for Bhavishys.
The Judgment of the Court was delivered by
BHAGWATI, J. This writ petition has been. initiated on the
basis of a letter addressed by one Lax mi Kant Pandey, an advocate
practising in this Court, complaining of mat-practices indulged in
by social organisations and voluntary agencies engaged in the work
of offering Indian children in adoption to foreign parents. The
letter referred to a press report based. on "empirical investigation
carried out by the staff of a reputed foreign magazine" called "The
Mail" and alleged that not only Indian children of tender age are
under the guise of adoption ''exposed to the long horrendous journey '
to distant foreign countries at great risk to their lives but in cases
where they survive and where these children are not placed in the
Shelter and Relief Homes, they in course of time become beggars
or prostitutes for want of proper care from their alleged foreign
foster parents." The petitioner accordingly sought relief restraining
Indian based private agencies "from carrying out further activity of
routing children for adoption abroad" and directing the Govern-
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L.K. PANDBY v. UNION (Bhagwati, J.)
805
ment oflndia, the Indian Council of Child Welfare and the Indian
Council of Social _Welfare to carry. out their obligations in the
matter of adoption of Indian children by foreign parents. This letter
was treated as a writ petition and by an Order dated 1st September,
1982 the Court issued notice to the Union of India the Indian
Council of Child Welfare and the Indian Council of Social Welfare
to appear in answer to the writ petition and assist the Court in laying down principles and norms which should be followed in determin•
ing whether a ehild should be allowed to be adopted by foreilin
parents and if so, the procedure to be followed for that purpose,
with the object of ensuring the welfare of the child.
The Indian Council of Social Welfare was the first to file its
written submissions in response to the notice issued by the Clouft
and its· written submission ij.led on 30th September, 1982 not only
carried considerable useful material bearing on the question of
adoption of Indian children by foreign parents but also contained.
· various suggestions and recommendations for consideration by the
Court in formulating principles and norms for permitting such
adoptions and laying down the procedure for that purpose. We
shall have occasion to refer to this large material placed before us
as also. to discuss the various suggestions. and recommendations
made in the written ·submission by the Indian Council of Social
Welfare when we take up for coesideration the various issues arising
in the writ petition. Suffice it to state for the present that the written
submission of the Indian Council of Social Welfare is a well thought
out document dealing comprehensively with various aspects of the
problem in its mani-fold dimensions. When the writ petition reached
hearing before the Court on 12th October, 1982 the only
writt~n
submission filed was that tlt_e Indian Council of Social Welfare and
neither the Union of India nor the Indian Council of Child Welfare
had made any response to the notice issued by the Court. But there
was a telegram received from a Swedish Organisation called 'Barnen
Framfoer Allt Adoptioner" intimating to the Court that this Organisation desired to participate in the hearing of the writ petition and
to present proper material before the Court. S .O.S, Children's
Villages of India also appeared through their counsel Mrs. Urmila
Kapoor and applied for being allowed to intervene at the hearing
of the writ petition so that they could made their submissions on
the question of adoption of Indian Children by foreign parents.
Since S.O.S. Children's Villages of India is admittedly an organisation concerned with welfare of children, the Court, by an Order
dated 12th October, 1982, allowed them tq intervene and to· ma!<e
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806
SUPREME COURT REPORTS
[1984) 2 S.C.ll.
their submissions before the Court. The Court also by the same
Order directed that the Registry may address a communication to
Barnen Framfoer Allt Adoptioner informing them about the ad·
journed date of hearing of the writ petition and stating that if they'
wished to present any material and make their submissions, they.
could do so by filing an affidavit before the adjourned date of heariJ;g: The Court also directed the Union of ~ndia to furnish before
the next hearing of the writ petition the names of "any Indian lnsti~
tutions or Organisations other than ·the Indian Council or'Sociai
Welfare and the Indian Council of Child Welfare, which are engaied or involved in offering Indian children for adoption by foreign
parents" and observed that if the Union of India does not have this
information, they should gather the requisite information so far as
it is possible for them to do so and to make it available to the Court.
The Court also issued a similar direction to the Indian Council oi'
Child Welfare, Indian Council of Social Welfare and S.O.S.
Children's Villages of India. There was also a further direciion
given in the same Order to the Union of India, the Indian Council
of Child Welfare, the Indian Council of Social Welfare and the
S.O.S. Children's Villages of India "to supply to the C.ourt information in regard to the mmes and particulars of any foreign agencies
which· are engaged in the work of finding Indian children for adop0
tion for foreign parenis". The writ petition was adjourned to 9th
November, 1982· for enabling the parties to carry out these
directions.
··
It appears that the Indian Council of Social Welfare thereafter
in compliance with the directions given by the Court, filed copies of
the Adoption of Children Bill, 1972 and the adoption of Children,
Bill 1980. The adoption of Children Bill, 1972 was introduced in
the Rajya Sabha sometime in 1972 but it was subsquently dropped;
presumably because of the opposition of the Muslims stemning from
the fact that it was intended to provide for a uniform law of
adoption applicable to all communities including the Muslims. It is
a little difficult to appreciate why the Muslims should have opposed
this Bill which merely empowered a Muslim to adopt if he so
wished; it had no compulsive force requiring ·a Muslim to act
contrary to his religious tenets : it was merely an enabling legis·
lation and if a Muslim felt that it was contrary to his religion to
adopt, he was free not to adopt. But in view of the rather strong
sentiments expressed by the members of the Muslim Community
and with a view not to offend their religfous susceptibilities, the
Adoption of Children Bill, 1980 which was introduced in the Lok
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I
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L.K. PANDEY v. ENION (Bhagwati, J.)
807
Sabha eight years later on 16th December, 1980, contained an ex·
A
press provision that it shai( not be applicable to Muslims. Apart
from this change in its coverage the Adoption of Children Bill, 1980
was substantially in the same terms as the Adoption of Children
Bill, 1972. The Adoption of' Children Bill 1980 has unfortunatety
not·yet been enacted into law but it would be useful to notice some
of the relevant provisions of this Bill in so far as they indicate what. •3' B
principles and norms the Central Government regarded as neceSliary
to be observed for securing the welfare of children sought to be
given in adoption to foreign parents and what procedural safeguards
the Central· Government- thought, were essential for securing this
end. Clauses 23 <tn.d 24 of the Adoption of Children Bill, 1980
dealt with the problem of adoption of Indian children by parents
'.)C
domiciled. abroad and, in so far as material, they provided· iis
follows :
" "23 (1) Except antler the authority of an order under
section 24; it shall no_t be lawful for any person to take or
send out of India a child who is a citizen of India · to any
(])
place outside India with a view to the adoption of the child
by any person.
(2) Any person who takes. or sends a child out .of
India to any place outside India in contravention of sub-
· r
section (l) or makes or takes part in any arrangements for
'.IJ:
transferring the care and custody of a child to any person ·
for that purpose shall lie punishable with imprisonment for
"
a term which may extend to six months or with fine, or
'
with both.
.