# Supreme Court. in its judgment in Laxmi Kant Pandey v. Union of

- **Citation:** [1985] Supp. 3 S.C.R. 71
- **Court:** Supreme Court of India
- **Decided:** 1985-09-27
- **Bench:** P.N. Bhaqiati, R.S. Pathak, Amarendra Nath Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-in-its-judgment-in-laxmi-kant-pandey-v-union-of-9191
- **Pages:** 24

## Headnote

B
Adoptionslnter-cmmtry adoption of children -
Adoption · of Indian
Children by foreign parents - Principles and norms laid down by
Supreme Court - Clarification and alteration of.
c
The applicants - social or child welfare agencies engaged
in placement of children iii inter-country adoption after having
felt that there were certain difficulties in implementing the
principles and norms adopted and the procedure laid down by
Supreme Court. in its judgment in Laxmi Kant Pandey v. Union of
India, w.P. (Crl.) No. 1171/82, made the present applications
seeking clarification on the various points., nemely (i) whether
a scrutinizing agency must be distinct from a placement agency;
(ii) what steps must be taken where there is disruption in the
family of the petitioner either before or after the adoption;
(iii) what is the role which a scrutinising agency is expected to
play in the procedure relating to inter-country adoptions; (iv)
whether it is desireable to permit a child to be taken from one
State to another for the purpose of being given in adoption and,,
if so, what guidelines should be followed; (v) Clarification in
regard to the reports to be made by the social or child welfare
agency
sponsoring
the application after the foreigner is
appointed gusrdian of the child and he takes the child to his own
country; (vi) what is the role which the representatives of
foreign agencies should be allowed to play in inter-cO\llltry
adoption; (vii) whether the requirement that the certificates,
declarations and documents required to be sul:mlitted along with
the application of 'the foreigner for taking a child in adoption
should be duly notarised by a Notary Public and the signsture of
the Notary Public 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 Coumissioner or Consulate in that country, must
be insisted upon; (viii) whether the court, while making an order
for appointment of a foreigner as gusrdian should not insist on
deposit being made by way of security for enabling the child to
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SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
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be repatariated to India, should it become necessary for any
reason and instead a bond to be executed by the foreigner should
be sufficient; (ix) Direction regarding extension of time of 2
years to complete the adoption process in bona fide cases; (x)
whether the awn of Rs.60 per day fixed as the maxlaum for
reimbursement of maintenance expenses which may be incurred by a
B
social or child welfare agency on the child was to High and that
it should be reduced to Rs.500 per month; (xi) whether suitable
directions be given to district courts to expedite proceeding for
appointment of a prospective adoptive parent as guardian of the
child. {xii) whether the courts DBJSt require the foreign parents
wishing to take a child in adoption to come down to India for the
purpose of meeting the child before approving the child for
C
adoption and (xiii) what efforts be made to give a child in
adoption to Indian parents before considering the possibility of
Jlll].cing it in adoption with foreign parents.
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Disposing of the applications,
llELD:l. The scrutinizing agency appointed by the Court for
the purpose of assisting it in reaching the conclusion whether it
would be in the interest of the child to be given in adoption to
the foreign parents
DBJSt
not in any manner
be involve<! in
placement of children in adoption. The scrutinizing agency llllllt
be an expert body having experience in the area of child welfare
and it should have nothing to do with placement of children in
adoption, for otherwise objective and impartial evaluation may
not be possible. [80 H; 81 A-BJ
2. The social or child welfare agency sponsoring the application DBJSt undertake that in case of disruption of the family of
the foreigner before adoption can be effected it will take care
of the child and fi

## Text

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71
LAXlll KANT PANDEY
A
V•
UNION OF INDIA & ANR.
SEPTEMBER 27, 1985
[P.N. BHAQIATI, C.J., R.S. PATHAK AND AMARENDRA NATH SEN, JJ.]
B
Adoptionslnter-cmmtry adoption of children -
Adoption · of Indian
Children by foreign parents - Principles and norms laid down by
Supreme Court - Clarification and alteration of.
c
The applicants - social or child welfare agencies engaged
in placement of children iii inter-country adoption after having
felt that there were certain difficulties in implementing the
principles and norms adopted and the procedure laid down by
Supreme Court. in its judgment in Laxmi Kant Pandey v. Union of
India, w.P. (Crl.) No. 1171/82, made the present applications
seeking clarification on the various points., nemely (i) whether
a scrutinizing agency must be distinct from a placement agency;
(ii) what steps must be taken where there is disruption in the
family of the petitioner either before or after the adoption;
(iii) what is the role which a scrutinising agency is expected to
play in the procedure relating to inter-country adoptions; (iv)
whether it is desireable to permit a child to be taken from one
State to another for the purpose of being given in adoption and,,
if so, what guidelines should be followed; (v) Clarification in
regard to the reports to be made by the social or child welfare
agency
sponsoring
the application after the foreigner is
appointed gusrdian of the child and he takes the child to his own
country; (vi) what is the role which the representatives of
foreign agencies should be allowed to play in inter-cO\llltry
adoption; (vii) whether the requirement that the certificates,
declarations and documents required to be sul:mlitted along with
the application of 'the foreigner for taking a child in adoption
should be duly notarised by a Notary Public and the signsture of
the Notary Public 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 Coumissioner or Consulate in that country, must
be insisted upon; (viii) whether the court, while making an order
for appointment of a foreigner as gusrdian should not insist on
deposit being made by way of security for enabling the child to
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SUPREME COURT REPORTS
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A
be repatariated to India, should it become necessary for any
reason and instead a bond to be executed by the foreigner should
be sufficient; (ix) Direction regarding extension of time of 2
years to complete the adoption process in bona fide cases; (x)
whether the awn of Rs.60 per day fixed as the maxlaum for
reimbursement of maintenance expenses which may be incurred by a
B
social or child welfare agency on the child was to High and that
it should be reduced to Rs.500 per month; (xi) whether suitable
directions be given to district courts to expedite proceeding for
appointment of a prospective adoptive parent as guardian of the
child. {xii) whether the courts DBJSt require the foreign parents
wishing to take a child in adoption to come down to India for the
purpose of meeting the child before approving the child for
C
adoption and (xiii) what efforts be made to give a child in
adoption to Indian parents before considering the possibility of
Jlll].cing it in adoption with foreign parents.
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G
H
Disposing of the applications,
llELD:l. The scrutinizing agency appointed by the Court for
the purpose of assisting it in reaching the conclusion whether it
would be in the interest of the child to be given in adoption to
the foreign parents
DBJSt
not in any manner
be involve<! in
placement of children in adoption. The scrutinizing agency llllllt
be an expert body having experience in the area of child welfare
and it should have nothing to do with placement of children in
adoption, for otherwise objective and impartial evaluation may
not be possible. [80 H; 81 A-BJ
2. The social or child welfare agency sponsoring the application DBJSt undertake that in case of disruption of the family of
the foreigner before adoption can be effected it will 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 guardiana--ship 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. The social or
child welfare agency sponsoring the application should also, in
the event of disruption of the family of the foreigner before
adoption can be effected, give intimation of this fact to the
Indian Embassy or High Conmission, as the case may be, and the
Indian Embassy or High commission shall also be kept informed
about the where abouts of the child so that
they can take the
necessary steps for ensuring that the child is properly taken
L.K. PANDEY v. U.Q.I,
73
care of and a suitable alternative placement for it is fouml. If
a disruption in the family of the foreigner takes place after the
child ia adopted, oothing can be done by the social or child
welfare agency sponsoring the application, because, on adoption,
the child liOUld acquire the nationality of its adoptive parents
and liOUld then be entitled to all the rights of a national in
that country. ( 81 E-H]
.
3. '1'he scrutinizing agency should not be asked to make any
inquiries before a child is offered in adoption to a foreigner or
a petition for appointment of a foreigner as guardian is filed in
Court. The primary responsibility for ensuring that the child is
legally free for adoption must be that of the social or child
welfare agency processing the application of the foreigner for
guardian-ship of the child. Whatever inquiries are necessary for
the purpose of satisfying itself that the child has been volunta-'
rily relinquished by its biological parents after umlerstanding
all the implications of adoption must be the responsibility of
the social or child welfare agency processing the application for
guardianship. But so far as the scrutinising agency is concerned
it should not come into the picture at this stage. It has a vital
role to play after a foreigner has approved of the child to be
taken in adoption and a petition is filed in court for appointment of the foreigner as guardian of the child and it is at that
stage that the scrutinising agency is expected to assist the
court in coming to the conclusion whether it would· be in the
interest of the child to be given in adoption to the foreigner.
The scrutinising agency should not at that stage try to ascertain
who are the biological parents of the child and whether they are
willing to take back the child. That is primarily the responsibility of the social or child welfare agency processing the
application. The Court should, in order to make sure that the
child is legally free for adoption, require the social or child
welfare agency processing the application to place material
before the court stating what efforts have been made to trace the
biological parents and what are the circWDStances in which the
child came into the possession of such social or child welfare
agency. Where the court feels some doubt as to how the child has
been obtained and in what manner,
the Court may ask the
scrutinising agency to make inquiries with a view to finding out
how the social or child welfare agency processing the application
has got the child and if the child has been obtained by such
social or child welfare agency from another institution or
agency, how that institution or agency got the child and from
what source and in what manner an<i the scrutinising agency may
then make discreet inqU::.~ies for this purpose without disclosing
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SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
to ·any orie that the child is sought to be given in adoption. The
Court may also in an appropriate case where it has some doubt ask
the scrutinising agency to inquire whether the child has been
voluntarily surrendered by the biological parents or whether such
relinquishment has been obtained by fradulent means. But unless
B
the Court so directs, the scrutinising agency should not make any
attempt to trace the biological parents of the child or to
inquire whether they are willing to take back the child. ( 82B;
83A-D ]
3. (ii) The social or child welfare agency engaged in the
work of placing children in adoption should, not readily assume
c
that children including cradal babies who are found adandoned are
legally free for. adoption. No children who are found abandoned
should be deemed to be legally free for adoption until the
Juvenile Court or the Social Welfare Department declares them as
destitutes or abandoned. It should also be impressed upon the
Juvenile Courts that when children are selected for adoption,
release orders should be passed by them expediously and without
D
delay and proper vigilance in this behalf must be exercised by
the High Courts. [83 E-G]
4, (i) There should not be any objection in a child under
the care of a social or child welfare agency or hospital or
orphanage in one State being taken to another State by a social
E
or child welfare agency for the purpose of being given in
adoption because the procedural safeguards laid down in Laxmi
Kant Pandey's case would be sufficient to eliminate the possibility of trafficking in children through inter-State transfer of
children. [83 H; 84 A~]
F
(ii) By way of additional safeguard, it is directed that no
court in a State will entertain an application for appointment of
a foreigner as guardian of a child which has been brought from
another State, if there is a social or child welfare agency in
that other State which has been recognised by the Government of
India for inter-country adoption. The social or child welfare
G
agency processing the application for guardianship should then be
directed to send the child to the recognised social or child
welfare agency in the other State, so that whatever proceedings
are necessary for giving the child in adoption may be instituted
by lhe social or child welfare agency and in such an event, 'the
complete details of the case history and background including the
H
home study report, the child study report, if any, and all other
information relating to the child should be made available to the
latter social or child welfare agency. If there is no recognised
social or child welfare agency in the State where the child is
L.K. PANDEY v. U.O.I.
75
fouwl or obtained, the child shall be transferred to a recognised
social or child welfare agency at the nearest place in the
inlllediate neighbouring State. [85 B-D)
5. (i) It is necessary that prcgress reports lllUSt be
submitted to the Court and to the social or child welfare agency
in India quarterly during the first two years and half yearly for
the next three years but after adoption had
taken· place the
Courts may not insist on strict observance of this requirement.
The order to be made by the Court should also provide that
progress reports shall be submitted by the social or child welfare agency sponsoring the application of the foreigner until
adoption is effected. That would provide greater assurance
because it may not be possible to take any action if the
foreigner fails to provide progress reports, hut if the social or
child welfare agency sponsoring the application for guardianship
fails to submit progress repots, the Court can in future decline
to entertain any application for guardianship where the foreigner
seekig appointment as guardian is sponsored by such social or
child welfare agency. [85 G-H; 86 A-BJ
5. (ii) However, if there is a social or child welfare
agency owned or operated by the Government in a foreign country,
it would not be necessary for a foreigner to route his ·
application through a recognised social or child welfare agency
within hia country and he can approach a recognised social or
child welfere agency in India through such Government agency.
Where there is Government agency in a foreign country
through which applications for taking children in adoption are
routed, as in SWeden, it may not be possible to insist that the
progress reports in regard to the child should be submitted by
the Government agency and in such case it may be enough to
provide in the order to be made by the Court that the progress
reports shall be submitted by the foreign parents throng the
Governent agency. [87 B-£)
6. There is no objection to a foreign social or child welfare agency having a representative in India, but it is necessary
to lay down certain parameters within which such representative
can be allowed to operate. In the first place, the representative
should be an Indian citizen with a degree or diploma in social
work coupled with experience in child welfare. Secondly, the
representative should be acting only for one foreign social or
child welfare agency and not more nor should he be working on a
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SUPREME COURT REPORTS
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free lance basis. It would also be desirable to limit the sphere
of operation of the representative to a particular geographical
area so that he is able to attend to his functions and duties
properly and diligently. The representative should have a general
power of attorney to act in India on behalf of the foreign social
B or child welfare agency and he should also have the authority to
operate banking accounts in the name of the foreigner social or
child welfare agency with the permission of the Reserve Bank of
India• In order to prevent taking of children from needy parents
by offering them monetary inducement and to eliminate trafficking
in children the representative of the foreign social or child
welfare agency should not be permitted to go scouting for
C
childre~, or to receive children directly from parents. He should
be allowed to act as representative only if he is recognised as
such by the Central Government and such recognition may be given
by the Central Government subject to the condition that the
various requirements set out above are complied with by such
representative. [86 D-H; 87 A]
D
7. There is no need to dispense with the requirement that
the certificates, declarations and documents required to be
submitted along with the application of the foreigner for taking
a child in adoption should be duly notarised by a Notary Public
and the signature of the Notary Public should be duly attested
either by an officer of the Ministry of External Affairs or
E Justice or social welfare of the Ministry of External Affairs 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. [87 F-G]
8.
The Court may not ordinarily insist on making of the
F deposit by the foreigner but in an appropriate case, if it so
thinks fit, it may pass such an order. The execution of a bond
would ordinarily be sufficient. The lx.md should be by way of
security for repatriation of the child to India in case it
becomes necessary to do ao as also for ensuring adoption of the
child within the period two years. The bond may'" be executed by
G the foreigner who is appointed guardian of the child, but there
may be difficulty in enforcing such bond, unless the bond is
executed in favour of the Indian Diplomatic Mission in the
country of the foreigner. It might therefore be safer to take the
bond from the representative of the foreign child or social
welfare agency in India so that if the condition of the bond is
11
violated, the Court can proceed to enforce the bond against such ·
representative who would be an Indian national. There is also
L.K. PANDEY v. U.O.I.
77
antoher alternative which may be adopted by the Court. The Court
may take the bond from the social or child welfare agency which
has processed the application and such social or child welfare
agency may in its turn take a corresponding bc>nd from the
sponsoring social or child welfare agency in the foreign country.
A
But, though this alternative may, in a given case, be adopted by
B
the court, wher<i! the recognised social or child welfare agency
processing the application is ready to give the bond, the Court
should not insist upon execution of the bond by such social or
child welfare agency. It would be sufficient to take the bond
from the representative of the foreign social or child welfare
agency in India or to insist on the bond being executed by the
c
foreigner in favour of the Indian Diplomatic Mission abroad.
[88F; 89 A-DJ
9, Where it is not possible for the foreigner to complete
the adoption prcess within two years, an application should be
made to the Court for extension of time for making the adoption
D
and the Court may grant appropriate extension oi time. (89 FJ
10, The sum of Rs.60 per day, repreAents the outside limit
of the maintenance expenses
which may be recovered from the
prospective adoptive parents and it does not represent the rate
at which maintenance expenses should be recoverable in every
E
case. When the Court makes an order appointing a foreigner as
guardian, the Court should look into this question and sanction
the amount to be paid by the foreigner to the social or child
welfare agency by way of reimbursement of maintenance expenses
and that only such amount as may be sanctioned by the Court shall
be recoverable by the social or child welfare agency by way of
maintenance expenses from the foreigner who is appointed guardian
F
of the child. So far as surgical or medical expenses incurred on
the child are concerned, they should also be recoverable by the
social or child welfare agency against production of bills or
vouchers. The recognised social or child welfare agency processing the application must also be entitled to recover from the
foreigner who is sought to be appointed guardian of the child,
G
costs incurred in preparing and filing the application and prosecuting it in Court. Such expenses may include legal expenses,
administrative expenses, preparation of child study report,
preparation of medical and I.Q. reports, passport aud visa
expenses aud conveyance expenses and they may be fixed by the
Court at such figure not exceeding Rs. 4, 000 as may be though fit
by the Court. {90 !Hi; 91 A-CJ
H
11, Proceedings for appointment of guardian of the child
with a view to its eventual adoption muat be disposed of at the
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SUPREME COURT REPORTS
[1985] SUPP.3 S.C.R.
earliest and in any event not later than two months from the date
of filing of the application. The High Court should call for
returns from the district Court within their respective jurdisdiction showing every two months as to how many applicationsfor
appointment of guardian are pending, when they were filed and if
more than two months have passed since the date of their filing
why they have not been disposed of up to the date of the return.
If any application for guardianship is not disposed of by the
district Courts within a period of two oonths and there is no
satisfactory explanation the High courts IDUst take a serious view
of the matter. [91 E-G]
12. The Court dealing with an application for appointment
of foreign parents as guardian need not insist on the foreign
parents or even one of them coming down to India for the purpose
of approving the child. In case of an older or handicapped child
alao, it is not necessary to require the foreign parents to come
down to India, because a complete dossier of the child consisting
of photographs, detailed medical report, child study report and
other relevant particulars is always forwarded to the sponsoring
social and child welfare agency in the foreign country and it is
after careful consideration of this dossier and a full and
detailed discussion under the sponsoring social and child welfare
agency that the foreign parents decide to accept the child to be
taken in adoption and proceed further in the matter through the
sponsoring social or child welfare agnecy. [92 D-G]
13. (i) One of the ways in which adoption by an Indian
family can be facilitated is to set up a centralised agency in
the State or even in a large city where there are several social
or child welfare agencies. Each social or child welfare agency
muat feed information to the centralised agency in regard to the
particulars of the children available with it for adoption and a
combined list of children available for adoption with various
social or child welfare agencies attached or affiliated to the
centralised agency, should be circulated to all such social or
child welfare agencies, so that if any Indian family comes to a
social or child welfare agency for taking a child in adoption,
such social or child welfare agency would be able to give full
and detailed information to the Indian family as to which
children are available for adoption and that with what social or
child welfare agency. This procedure has been adopted by social
and child welfare agencies ir Bombay. The Indian Association for
Promotion of Adoption, Bombay has set up a Voluntary Co-ordinating agency on an experimental basis • The Supreme Court wholly
•
L.K. PANDEY v. u.o.I. [BliAGWATI, C.J.]
79
endorses and recoumends setting up of such Voluntary Co-ordinating agency in each State a>Jd if circumstances so require there
may even be more than one Voluntary Co-ordinating agencies in a
State. [93 D-H; 94 B]
13. (ii) Where there is a Voluntary Co-ordinating agency or
any other Centralised agency which maintains a register of
children available for adoption as also a register of Indian
adoptive parents, it would be enough to wait for a period of
three to four weeks. The Voluntary Co-ordinating or Centralised
agency can immediately contact the Indian family which is on its
register as prospective adoptive parents and inform-them that a
particular child is available for adoption. If within a period of
three to four weeks, the child is not taken in adoption by an
Indian 'family, it should
be
regi.rded
as
available
for
inter-country adoption. But even where it is not possible to find
and Iodisn family which is prepared to take a child in adoption
and it is cleared for inter-country adoption, the -first priority
for taking the child in adoption should be given to Indians
residing abroad and if no such 'Indians are available, then to
adoptive couples where atleast one parent is of Indian origin.
[94 D-F]
CMP. Nos.
ORIGINAL JURISDICTION :
6726,
7870,
6740,
7592,
IN
7040,
7422-23,
7826 & 8137-38/84
Writ Petition (Criminal) No. 1171 of 1982
(Under Article 32 of the Constitution of India)
Petitioner in person, Abdul Khader, Anil B. Divan, Ms. Jay
Singh,, Ms. Kamini Jaiswal, Mrs. C.M. Chopra, R.N. Poddar, P.H.
Parekh, P.K. Manohar, N.M. Ghatate, B.M. Bagaria, K.L. Rathee, s.
Balakrishnan,
M.K.D.
Namboodiri,
Jagdeep
Ki.shore,
T.V.s.
Narasimhachari,
Sudesh
Menon,
Ms.
Rani Jethmalani,
Kailash
Yasdev, Ms. Varinda Grover, Vinod Arya and Mrs. Urmila Kapoor for
the applicants.
Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by
BllAGWATI, C.J. This writ petition was -initiated on the
basis of a letter addressed by the petitioner complaining of
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!llSlpractices indulged in by social organisations and voluntary
agencies engaged in the work of offering Indian children in
adoption to foreign paren.:s. Siace we found that there was no
legislation enacted by Parliament laying down the principles and
norms which must be observed and the procedure which nrust be
followed in giving an Indian child in adoption to foreign
B
parents, we entertained the writ petition and after hearing a
large number of social organisations and voluntary agencies
engaged in placement of child in adoption delivered an exhaustive
judgment on 6th February, 1984 discussing various aspects of the
problems relating to inter-country adoption and fornrulliting the
normative and procedural safeguards to be followed in giving an
Indian child in adoption to foreign parents.
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Pursuant to the directions given by us in our Judgment in
this writ petition,
the Government
of India proceeded to
recognise various social or child welfare agencies in India for
the purpose of inter-country adoption. The Government of India
also, through its diplomatic missions abroad, collected names of
the social or child welfare agencies in foreign countries
recognised by their respective Governments for sponsoring applications of foreigners for taking a child in adoption and prepared
a list of such social and welfare agencies. The Government of
India also,
in obedience to the directions given by us,
circulated copies of the list of foreign social or child welfare
agencies recognised by their respective Governments as also of
the list of social or child welfare agencies recognised by the
Government of India for placement of children in inter-country
adoption, to all the High Courts in the country with a request to
the High Courts to send copies of the two lists to the district
Courts within their respective jurisdiction. But it seems that
some of the social or child welfare agencies engaged in placement
of children in inter-country adoption felt that there were
certain difficulties in implementing the principles and norms
laid down by us in our judgment and various applications were
therefore made by them asking for clarification and alteration in
the principles an norms adopted and the procedure laid down by
us. These applications are being disposed of by us by this c0tmn0n
judgment.
The first point raised in these applications relates to the
question whether a scrutinizing agency must be distinct from a
placement agency. We entirely agree with the submission made by
some social and child welfare agencies that the scrutinizing
agency appointed by the Court for the purpose of assisting it in
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•
L.K. PANDEY v. u.o.I. [BHAGWATI, c.J.J
81
reaching the conclusion .whether it would be in the interest of
the child to be given in adoption to the foreign parents must not
in any manner be involved in placement of children in adoption.
The scrutinizing agency must be an expert body having experience
in the area of child welfare and it should have nothing to do
with placement .of children in adoption for otherwise objective
and impartial eval'Uation may not be possible. Where therefore
there an institution or agency which is engaged in the placement
of children in adoption, it should not
be
appointed as
scrutinizing agency by the Court. The two scrutinizing agencies
usually commissioned by the Courts are the Indian Council of
Social Welfare and the India Council of Child Welfare. These two
institutions
or
agencies
have
acquitted
themaelves
very
creditably so far and the Courts may therefore continue to
entrust scrutinizing work to them, but there may also be other
scrutinizing agencies which can be employed for this purpose.
They must however be basically child welfare agencies and must
not be engaged in placing children in adoption.
The next point regarding what steps must be taken where
there is disruption in the family of the petitioner need not
detain us. We have already directed in our Judgment that the
social or child welfare agency sponsoring the application must
undertake that in case of disruption of the family of the
A
B
c
D
foreigner before adoption can be effected, it will take care of
E
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 handlJ.ng
the guardianship proceedings and such information shall be passed
on both by Court as also by the concerned social or child welfare
agency in India to the Secretary,· Ministry of Social Welfare,
Government of India. We would suggest that additionally the
F
social or child welfare agency sponsoring the application should
also, in the event of disruption of the family of the foreigner
before adoption can be effected, give intimation of this fact to
the Indian Embassy or High Commission as the case may be, and the
Indian Embassy or High Commission shall also be kept informed
about the whereabouts of the child so that they can take
G
necessary steps for ensuring that the child is properly taken
care of and a suitable alternative palcement for it is found. If
a disruption in the family of the foreigner takes
palce after
the child is adopted, we do not think that anything can be done
by the social or child welfare agency sponsoring the application,
because, on adoption, the child would acquire the nationality of
its adoptive parents and would then be entitled to all the rights
H
of a national in that country.
82
SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
A
The third point raised in these applications relates to the
role whlch a scrutinising agency is expected to play in the
procedure
relating
to
inter-counrty
adoptions.
There
was
considerable debate before us on this point and after carefully
considering the various arguments we are of the view that the
scrutinising agency should not be asked to make any inquiries
B
before a child is offered in adoption to a foreigner or a
petition for appointment of a foreigner as guardian is filed in
court. The primary responsibility for ensuring that the child is
legally free for adoption must be that of the social or child
welfare agency processing the application of the foreigner for
guardianship of the child. Whatever inquiries are necessary for
the purpose of satisfying itself that the child has been
C
voluntarily
relinquished
by
its
biological
parents
after
understanding all the implications of adoption as envisaged in
paragraph 14 of our Judgment must be the responsibility of the
social or child welfare agency processing the application for
guardianship. We have already laid down sufficient safeguards in
this connection in paragraph 18 or our Judgment and it is not
necessary to say anything more about it. But so far as the
D
scrutinising agency is concerned it should not come into the
picture at this stage. It has a vital role to play after a
foreigner has approved of the child to be taken in adoption and a
petition is filed in court for appointment of the foreigner as
guardian of the child and it is at that stage that the
scrutinising agency is expected to assist the Court in Coming to
E
the conclusion whether it would be in the interest of the child
to be given in adoption to the foreigner. The scrutinising agency
should not at that stage try to ascertain who are the biological
parents of the child and whetner they are willing to take back
the child. That is primarily the responsibility of the social or
child welfare agency processing the application and that is why
F
we have insisted in our Judgment it is only a social or child
welfare agency recognised by the Government which should be
entitled
to
process
the application for
guardianship
and
recognition
must
be
given
by
the
Government
only
after
considering whether such social or child welfare agency enjoys
good reputation and is known for its work in the field of child
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care
and
welfare
and
whether it has
proper
staff with
professional social work experience. The Court should, in order
to make sure that the child is legally free for adoption, require
the social or child welfare agency processing the application to
place material before the Court stating what efforts have been
made
to
trace
the
biological
parents
and
what
are
the
H
circumstances in which the child came into th~ pO$Session of such
L.K. PANDEY V• u.0.1. [BHAGIATI, c.J.]
83
social or child welfare agency. Where the Court feels some doubt
as to how the child has been obtained and in what manner, the
Court may ask the scrutinising agency to make inquiries with a
view to finding out how the social or child welfare agency
processing the application has got the child and if the child has
A
been obtained by such social or child welfare agency from another
B
institution or agency, how that institution or agency got the
child and
from what
source and
in what
manner and
the
scrutinising agency may them make discreet inquiries for this
purpose without disclosing to any one that the child is sought to
be given in adoption. The Court may also in an appropriate case
where it has some doubt ask the scrutinising agency to inquire
c
whether the child has been voluntarily surrendered py the
biological parents or whether" such relinquishment ruls been
obtained by fradulent means. But unless the Court so directs, the
scrutinising agency should not make any attempt to trace the
biological parents of the child or to inquire whether they are
willing to take back the child. We may also point out that the
D
sci;utinising agency should, while scrutinising the application,
adopt
a
sympathetic and
sensitive approach with in-depth
ur.derstanding of the dynamies of human behaviour•
We agree with the point made in some of these applications
that the social or child welfare agency engaged in the work of
E
placing children in adoptoin should not readily assume that
childrei\ including cradal babies who are found abandoned are
legally free for adoption. Such children must be produced before
the Juvenile Court so that further inquiries can be made and
their parents or guardians can be traced. In States where there
is no Children Act in force, such children should be referred to
tlie Social Welfare Department for making further inquiries and
F
tracing their parents or guardians. This procedure should be
completed at the latest within three months and no children who
are found abandoned should be deemed to be legally free for
adoption until the Juvenile Court or the Social Welfare Department declares them as destitutes or abandoned. It should also be
impressed upon the Juvenile Courts that when children are
G
selected for adoption, release orders should be passed by them
expeditiously and without delay and proper vigiiance in 'this
behalf must be exercised by the High Courts.
That takes us to the next point raised in these applications which relates to transfer of children from one State to
another for the purpose of being given in adoption. We took the
H
view in our Judgment that there should not be any objection in a
84
SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
child under the care of a social or child welfare agency or
A
hospital or orphanage in one State being taken to another State
by a social or child welfare agency for the purpose of being
given in adoption because we felt that the procedural safeguards
laid down by us would be sufficient to eliminate the possibility
of trafficking in children through inter-State tranafer of
children. We pointed out that since we are directing that every
B
application of a foreigner for taking a child in adoption shall
be routed only through a recognised social or child welfare
agency and an application for appointment of the foreigner as
guardian of the child shall be made to the Court only through
such recognised social or child welfare agency, there would
hardly be any scope for a social or child welfare agency or
individual, who brings the child from another State for the
C
purpose of being given in adoption, to indulge in trafficking and
such a possibility would be reduced to almost nil. But it has
been urged upon us by various social and child welfare agencies
that it may not be desirable to permit a child to be· taken from
one State to another for the purpose of being given in adoption
because that would encourage representatives of foreign agencies
as also unscrupulous persons to go scouting for children to
D
different States and taking advantage of the poverty of the large
masses
of
people,
persuade indingent parents,
by offering
monetary inducement, to part with their children and then arrange
to give such children in inter-country adoption through the
instrumentality of a recognised social or child welfare' agency
getting in the process a sizable profit for
thema~lves, This
E
apprehension voiced on behalf of the social or child welfare
agencies is not altogether unjustified. But on that account alone
it would not be right to prevent a child from being taken from
one State to another by a social or child welfare agency for the
purpose of being given in adoption, because at the place where a
child is found destitute or abandoned or where the biological
F
parents, who not being in a position to support the child are
prepared relinquish it for the purpose of its being given 1J1
adoption to a person who can take proper care of it, are livina,
there may be no social or child welfare agency which can take the
child for being placed in adoption. There may be a social or
child welfare agency in another State which is in a position to
G
take care of such child and find suitable parents for giving it
in adoption and if that be so, we do not see why such social or
child welfare agencies should not be permitted to take the child
from one State to another for the purpose of being given in
adoption rather than leave it to grow up uncared for in want and
destitution.
We
have laid down considerable safeguards in
H
L.K. PANDEY v. u.o.I. [B~ATI, c.J.J
85
paragraph 19 of our JudgJDent in order to prevent any abuse of
this practice and we are not inclined to interdict it altogether.
But we would direct by way of additional safeguard that no Court
in a State will entertain an application for appointment of a
foreigner as guardian of a child which has been brought from
another State, if there is a social or child welfare agency in
that other State which has been recognised by the Government of
India for inter-country adoption. The social or child welfare
agency processing the application for guardianship should then be
directed to send the child to the recognised social or child
welfare agency in the other State, so that whatever proceedings
are necessary for giving the child in adoption may be instituted
by that social or child welfare agency and in such an event, the
complete details of the case history and background including the
hane study report, the child study report, if any, and all other
information relating to the child should be made available to the
later social or child welfare agency. If there is no recognised
social or child welfare agency in the State where the child is
found or obtained, the child shall be transferred to a recognised
social or child welfare agency at the nearest place in the
immediate neighbouring State.
There was also one other point raised by sume of the social
or child welfare agencies and that was in regard to the reports
to be made by the social or child welfare agency sponsoring the
application, after the foreigner is appointed guardian of the
child and he takes the child to his own country. We directed in
our Judgment that the order to be made by the Court shall include
a condition that the foreigner who is appointed guardian shall
submit to the Court as also to the social or child welfare agency
processing the application for guardianship, progress reports of
the child quarterly during the first two years and half yearly
for the next three years. But it was suggested by some social or
child welfare agencies that this direction should be limited only
in case of adoption of handicapped children but so far as noI'lll<ll
children were concerned, it would be enough if the progress
reports were submitted for a period of two years or until
adoption whichever event happens later. We do not think we can
accept this sugeestion wholly. It is necessary that progress
reports must be submitted to the Court and to the social or child
welfare agency in India quarterly during the first two years and
half yearly for the next three years but after adoption had taken
place the Courts may not insist on strict observance of this
requirement.