Rakesh Ranjan Prasad, J. - (1.) THIS application is directed against the order dated 22/01/2014, passed by the Principal Judge, Family Court, Ranchi in Guardianship/Adoption Case No. 63 of 2013, holding therein that keeping in view the welfare of the child Adlin, she cannot be ordered to be given in Inter Country Adoption in favour of respondent nos. 1 and 2 and, thereby, the said case was dismissed for the reasons recorded herein under: - (1) Prospective Adoptive Parent (PAP) has not been examined. (2) PAP is required to come to the country to take the child to his country, whereas in this case respondent no. 2 has been authorized. (3) After matching the child the Specialized Adoption Agency (SAA) should have advised PAP to see the child physically before she gives her acceptance, which has not been done. (4) Sufficient proof is not there that the recognized agency had made effort to place the child in adoption within the country.
(2.) CHALLENGING the said order, Mr. Jagdeep Kishore, learned senior counsel appearing for the petitioner submits that the matter relating to inter -country adoption never seems to have been decided as per the guidelines issued by the Central Government named as 'Guidelines Governing Adoption of Children, 2011' and, thereby, the Court committed illegality in dismissing the application for adoption. Before adverting to the further submissions advanced in this regard, one needs to take the background under which the aforesaid guidelines regarding adoption were issued by the Central Government. The law with regard to inter -country adoption was in state of flux until the principals governing giving of Indian children in adoption to foreign parents and the procedure that should be followed in this regard to ensure absence of any abuse, maltreatment or trafficking of children came to be laid down by the Hon'ble Supreme Court in a case of "Lakshmi Kant Pandey -versus - Union of India [ : (1984) 2 SCC 244]". That case has been instituted on a letter addressed to the Court by one Lakshmi Kant Pandey, practicing advocate of the Supreme Court with regard to alleged malpractices indulged in by social and voluntary organizations engaged in the work of offering Indian children in adoption to foreign parents. After an elaborate consideration of the various dimensions of the questions, which were raised before the Court by several entities including Government functionaries offered elaborate suggestions to ensure that the process of such adoption is governed by strict norms and a well laid down procedure to eliminate the possibility of abuse or misuse in offering Indian children for adoption by foreign parents. The Court also laid down the approach that is required to be adopted by the Courts while dealing with the applications under the Guardians and Wards Act seeking orders for appointment of foreign prospective parents as guardian of Indian Children. The Hon'ble Court on amongst the other suggestions came with the following suggestions: - "Of course, it would be desirable if a Central Adoption Resource Agency is set up by the Government of India with regional branches at a few centers which are active in inter -country adoptions. Such Central Adoption Resource Agency can act as a clearing house of information in regard to children available for inter -country adoption and all applications by foreigners for taking Indian children in adoption can then be forwarded by the social or child welfare agency in the foreign country to such Central Adoption Resource Agency and the latter can in its turn forward them to one or the other of the recognized social or child welfare agencies in the country."
(3.) PURSUANT to the said decision, the Government of India formed a body known as Central Adoption Resource Agency (CARA). At the same time, it came with a guideline named as 'Guidelines For Adoption From India 2006', laying down the elaborate provisions to regulate the matter relating to adoption including inter -country adoption. In course of time, significant development in the law governing adoption took place, whereby Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000, was amended by Act, 33 of 2006 by substituting Sub -sections 2, 3 and 4 in Section 41. The said amendment, which was made effective from 22/08/2006, are as follows: - "41(2) Adoption shall be resorted to for the rehabilitation of the children who are orphan, abandoned or surrendered through such mechanism as may be prescribed. 41(3) In keeping with the provisions of the various guidelines for adoption issued from time to time, by the State Government, or the Central Adoption Resource Agency and notified by the Central Government, children may be given in adoption by a court after satisfying itself regarding the investigations having been carried out, as are required for giving such children in adoption. 41(4) The State Government shall recognize one or more of its institutions or voluntary organizations in each district as specialized adoption agencies in such manner as may be prescribed for the placement of orphan, abandoned or surrendered children for adoption in accordance with the guidelines notified under sub -section (3). Provided that the children's homes and the institutions run by the State Government or a voluntary organization for children in need of care and protection, who are orphan, abandoned or surrendered, shall ensure that these children are declared free for adoption by the Committee and all such cases shall be referred to the adoption agency in that district for placement of such children in adoption in accordance with the guidelines notified under sub -section (3)." As per sub -section (3), children may be given in adoption by a Court keeping in view various guidelines for adoption issued from time to time by the State Government or the Central Adoption Resource Authority. In the year 2011, the Central Adoption Resource Authority (CARA) laid down a guideline, which has been named as 'Guidelines Governing the Adoption of Children 2011', having virtually statutory effect as by virtue of the provisions of Rule 33 sub -clause 2, the said Guidelines of 2011 has been notified under Section 41 sub -clause 3 of the Juvenile Justice Act, which will now govern all the matters pertaining to inter -country adoption. Some of the salient features of the Guidelines, which are required to be followed by the different agencies and also by the Court, are being given herein -under: - "(a) Before any child is offered in adoption by Recognized Indian Placement Agency (RIPA) it is obligatory for Specialized Adoption Agency (SAA) to fulfill obligations in terms of the said Guidelines and obtain a declaration from Child Welfare Committee that a child is an abandoned or surrendered child and is legally free for adoption. (b) After the child is declared legally free for adoption, every such child has to be offered to an Indian family within the same socio cultural milieu, ethnic and religious background. (c) If such a child is not accepted by any local Indian Family, the said child can then be offered in inter -country adoption. (d) All such children residing with RIPA are placed on the Data Base Management system of CARA (Carings Portal) and CARA refers families on its waiting list to RIPAS for offering them a child in inter -country adoption. (e) RIPA, on receiving such referral from CARA matches a child who could be offered to such a family and sends Child Study Report and Medical Examination Report (CSR & MER) and photo of the child to Prospective Adoptive Parents (PAPs) through Authorized Foreign Adoption Agency (AFAA). (f) When the Prospective Adoptive Parents accept the child they endorse their signature on CSR and MER and send the same to RIPA. (g) Thereafter, RIPA forwards the dossier/documents of the Adoptive Family (PAPs) to the State Government/Adoption Recommendation Committee (ARC) for issuing Recommendation Certificate. (h) The Adoption Recommendation Committee (ARC) after scrutiny of the said documents in terms of the Guidelines, issues a Recommendation Certificate and forwards the dossier/documents alongwith Recommendation Certificate to Central Adoption Resource Authority (CARA). (i) CARA, on receipt of these documents from ARC/State Government on being satisfied about the suitability of the adopted parents issues No Objection Certificate (NOC), which is then forwarded by CARA to RIPA. (j) On receipt of such NOC from CARA, RIPA has to file the petition in the Court for giving the minor in adoption to the adopted parents named in the NOC. (k) On case being allowed and registration of the Adopted Deed, RIPA has to apply for the Passport for the adopted child. (l) After the Passport is ready and the child is ready to travel, the Adoptive Parents, living at abroad, have to come to India and accompany the child to their country.";