HOLY CROSS HOME FOR BABIES Vs. RAVIKIRAN ABRAHAM BARIGALA AND ANR
LAWS(BOM)-2018-1-212
HIGH COURT OF BOMBAY
Decided on January 17,2018

Holy Cross Home For Babies Appellant
VERSUS
Ravikiran Abraham Barigala And Anr Respondents

JUDGEMENT

S.C. Gupte, J. - (1.) A procedural question has been raised in this Foreign Adoption Petition. The question involves the legality, as also of advisability, of the usual requirement insisted upon by the adoption court for (i) investment by the proposed adopters in the name of, or for the benefit of, the child to be adopted and also (ii) placing of a deposit with the Prothonotary and Senior Master in lieu of a bond so as to ensure compliance with the directions of the court. There has also been a pending representation made to this court by Central Adoption Resource Authority (CARA) in connection with another matter, where for nondeposit of bond money of Rs.60,000/ as per the directions in the Judges Order, certified copy of the Judges Order allowing adoption was not issued by the Registry. By this representation, CARA has requested the court not to insist on any bond money or investment in the name of the child. Though this issue was earlier considered by this court in its order dated 29 October 2010 in Foreign Adoption Petition No.93 of 2010 after hearing CARA, I have thought it fit to have a relook at this issue, in the light of the notification issued by the Central Government on 4 January 2017, notifying Adoption Regulations, 2017. These Regulations inter alia mandate that adoptive parents shall not be asked in the adoption order to execute any bond or make any investment in the name of the child. The matter was accordingly notified on the board calling upon interested parties to make submissions, if they so desired. A special notice was also issued to CARA for making its submissions on the issue. No party has appeared in response to this notice and CARA has also not chosen to make appearance or present any submissions before the court. I have heard Mr. Rakesh Kapoor, learned counsel for the Petitioner and Mr. Vishal Kanade, learned counsel appointed as Amicus Curiae in the matter. This order disposes of the particular issue raised in the matter. By a separate order, the foreign adoption petition is allowed.
(2.) As a matter of practice, at the time of allowing adoption petitions, both Indian and foreign, this court has been directing adoptive parents to deposit monies in the name of the minors in India for adoptive parents from India and in their respective countries for nonresident Indian parents living abroad or foreign nationals. This court has also been directing deposit of bond money in the court by adoptive parents for ensuring compliance with various directions passed in the orders allowing adoption. This practice can be traced to the celebrated case of Laxmi Kant Pandey Vs. Union of India, 1984 2 SCC 244, where the Supreme Court extensively laid down the principles, parameters and norms to be followed in cases of intercountry adoptions, where Indian children were adopted by foreigners living abroad. These directions were based on a Public Interest Petition complaining of malpractices and trafficking in children in the matter of such intercountry adoptions. The Court was inter alia of the view that in the circumstances which obtained when the Public Interest Petition was considered by the Court, it was imperative to introduce a condition in the order that the foreigner, who is appointed guardian of the minor, shall make a proper provision by way of either a deposit or a bond or otherwise to enable the child to be repatriated to India should it become necessary for any reason.
(3.) The matter was thereafter considered by a learned Single Judge of this Court in Foreign Adoption Petition No.254 of 2010. The Petitioner had in that case applied for adoption of an Indian female child of four and half years. The proposed adopters were Norwegian nationals. The learned Single Judge was of the view that since the minor was required to be sent out of the jurisdiction of this court, and in fact, out of this county, pursuant to the adoption, the welfare of the child was of prime concern. The learned Judge observed that experience had shown that in certain circumstances need for security of a child had arisen; in many cases followup particulars which were required to be sent by adoptive parents in foreign countries were delayed or not sent at all. The court then referred to the directions of the Supreme Court in the case of Laxmi Kant Pandey providing for proper provisions to be made by way of deposit or bond or otherwise to enable repatriation of the child to India, should it become necessary for any reason. The learned Judge then noticed various incidents brought to the notice of the court showing that in certain cases, bonds insisted upon by the courts in this behalf had been breached and that it continued to cause needless avoidable administrative and clerical work in calling for bonds and enforcing them. The learned Judge was of the view that in the circumstances, directions for deposit of an amount equivalent to the amount of the bond by adoptive parents for ensuring compliance on their part of the undertakings given to the court were in order; the amount deposited and invested could be resent/ returned with accrued interest later. The learned Judge also considered it reasonable to require the proposed adopters to invest some amount in the country of the adoptive parents towards security for the child, noting that in most cases a sum equivalent to Rs.2,00,000/ would be adequate and appropriate for such security. This was to be retained until the child attained the age of majority. The learned Judge noted that this amount could be, and had been, waived in appropriate cases, if the adoptive parents were not in easy circumstances or overburdened with responsibilities of a special needs' child; that in deciding these matters the court had always exercised its discretion on a case by case basis. In dealing with CARA's objection to the discretion of the court in requiring such security, the learned Judge observed that various postadoption obligations and responsibilities of the agencies as well as the parents did call for a safeguard for their due execution. The learned Judge observed that in some rare cases, the security of the child might be compromised in cases of disruption in the family, abuse of the child, etc. and for alternative placement of the child in these circumstances, both foreign and Indian agencies abroad might require funds for safeguarding and protecting the interest of the child and looking after management, education and welfare of the child until an alternative placement was found for the child. The Court was also of the view that a modest amount, if invested in the name of the child for its benefit and use as and when it attained majority, would grant a sense of independence to the child and also relieve the burden of the parents at the time of the child's need to plough back the investment. The learned Judge, therefore, saw no reason for the court not to direct in its discretion investment of some reasonable and modest amount in the name of the child. For all these reasons, the learned judge rejected the request of CARA not to insist upon deposit of Rs.60,000/ in the lieu of bond or investment of an amount equivalent of Rs.2,00,000/ in the name of the child in the foreign county. After the passing of this order, it has been a matter of routine practice for this Court to insist upon deposit of bond money of Rs.60,000/ as well as investment of Rs.2,00,000/ (now raised to Rs.3,50,000/) from foreign adoptive parents and of Rs.1,00,000/ in the name of the child in an Indian bank in case of Indian adoptive parents. There is also a practice note issued by this court concerning such investment.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.