October 4, 2022

Laxmi Kant Pandey Case, 1986- Modified directions of the Supreme Court on adoption

The Supreme Court in the judgment of Laxmi Kant Pandey v. Union of India dated 6th February, 1984 and the supplemental judgment dated 27th September, 1985 had formulated the normative and procedural safeguards to be followed in giving an Indian child in adoption to foreign parents. Since there were certain difficulties in implementing the aforesaid norms and principles, the petitioners moved the present criminal miscellaneous petitions for seeking clarification/further directions in the matter.

First Application

An application was filed by the Indian Council for Child Welfare in Supreme Court for obtaining a direction that when it is required to act as a scrutinising agency by the council, a certain amount should be directed to be paid to it for the scrutinising services rendered by it, since the scrutinising services would require employment of staff and other necessary expenditure.

On that application, the court noticed that though that application was made only by the Indian Council for Child Welfare, but all other scrutinising agencies must also be facing the same difficulty.

Therefore, the court directed that when the Court makes an order appointing a foreign parent as guardian of a child with a view to its eventual adoption in the foreign country, the Court will provide that such amount shall be paid to the scrutinising agency for its services as the Court thinks reasonable, having regard to the nature of the case and the extent and volume of the services rendered by the scrutinising agency.

The court further directed that-

  • The amount shall be directed to be paid to the scrutinising agency by the recognised placement agency which has processed the application of the foreign parent for being appointed guardian of the child with a view to its eventual adoption and the such placement agency shall have the right to recover such amount from the foreign parent whose application for guardianship it has processed.
  • This direction will also apply mutatis mutandis in cases where an Indian parent makes an application for appointing himself or herself as guardian of a child or a Hindu parent applies for permission to adopt a child under section 9 sub-section (4) of the Hindu Adoptions and Maintenance Act, 1956 and the case is referred to a scrutinising agency by the Court.
  • Both in the case of an application on behalf of a foreign parents as also in the case of an application on behalf of an Indian or Hindu parent, a copy of the order made by the Court appointing the scrutinising agency shall be supplied to the scrutinising agency immediately after the order is made, together with the papers and documents submitted to the Court in support of the application for appointment of guardian or for permission to adopt.

Second Application

This application has been made by the petitioner since according to the petitioner there have been instances of illegal sales of babies.

On this issue, the court said that it is not possible to devise a fool-proof formula which in all cases may prevent illegal sales of babies but a procedure can be formulated which will definitely reduce the possibility of illegal sales.

Accordingly, the court directed that,

  • All nursing homes and hospitals which come across abandoned or destitute children or find such children abandoned in their pre points or other- wise shall immediately give information in regard to the discovery or find of such children to the Social Welfare Department of the concerned Government where such nursing homes or hospitals are situate in the capital of the State and in other cases to the collector of the District and copies of such intimation will also be sent to the Foster Care Home where there is such a home run by the Government as also to the recognised placement agencies functioning in the city or town where such nursing homes or hospitals are situate.
  • Each Indian parent who is registered with the Foster Care Home or a recognised placement agency as a prospective parent wishing to take a child in adoption and who has been informed by the recognised placement agency that a child is available for adoption will be entitled to information about all the children available for adoption in the group specified by him, according to the consolidated list maintained by the recognised placement agency.

Third Application

The Court directed in Laxmi Kant Pandey vs Union of India, 6th February 1984 that the notice of the application for guardianship should not be published in any newspaper and this was reiterated in the Supplementary Judgment dated 27th September, 1985, because otherwise the biological parents would come to know as to who are the parents taking the child in adoption.

The question raised in the present application is as to whether this direction should be confined only to cases of adoption by foreign parents or it should be extended to cover cases where Hindu parents seek to take a child in adoption and make an application to the Court for that purpose.

The court expressed its view that having regard to the object and purpose for which this direction has been given, it cannot be confined to the case of adoption by foreign parents. It must also cover the cases where Hindu Parents.

Fourth Application

An application was filed by the Karnataka State Council for Child Welfare complaining that the object and purpose for which various directions were given by the Court in its main Judgment dated 6th February, 1984 and the supplemental Judgment dated 27th September, 1985 was being defeated by the practice which had been adopted in some places in the State of Karnataka where unrecognised agencies were using recognised placement agencies as post offices for processing cases in respect of children which were in the custody of the unrecognised agencies and with which the recognised placement agencies have nothing to do.

It is the recognised placement agency which has to prepare the child study report including the medical report for submission to the Court along with the application for appointment of the foreigner as guardian of the child and this obviously cannot be done unless the child is with the recognised placement agency, because the recognised placement agency has to observe the child and gather full information about it in order to be able to make the report for submission to the Court.

The recognised placement agency must therefore necessarily have the custody of the child for a period of at least one month before it can be prepared really genuine and satisfactory child study report along with the medical report.

The court directed no recognised placement agency shall make and process an application for appointment of a foreigner as guardian of a child with a view to its eventual adoption, unless the child has been in the custody of the recognised placement agency for a period of at least one month.

Fifth Applications

An application of the Delhi Council for Child Welfare seeks clarification in respect of certain observations made by the Court in supplemental judgment dated 27th September 1985.

The Court, while providing that children who are found abandoned should not be assumed to be free for adoption but they must be produced before the Juvenile Court so that further inquiries can be made and their parents or guardians can be traced, directed the Juvenile Courts “that when children are selected for adoption, release order should be passed by them expeditiously and without delay and proper vigilance in this behalf must be exercised by the High Court”.

The Delhi Council for Child Welfare has pointed out in this application made by it for clarification that the Juvenile Courts are construing this observation literally and mechanically and are taking the view that release orders in respect of the children produced before them are to be passed “expeditiously and without delay” only in cases where it can be said that the children “are selected for adoption” and since no child can possibly be offered in adoption unless it is declared legally free for adoption by the Juvenile Court, this direction given by the court for expeditious passing of release orders in cases where “children are selected for adoption” has become meaningless and futile and the Court should suitably modify it.

For this application, the court modified its direction and provided that whenever a child is produced before the Juvenile Court by a recognised placement agency for a release order declaring that the child is abandoned or destitute so as to be legally free for adoption, the Juvenile Court must in all such cases complete the inquiry within one month from the date of the application and proper vigilance should be exercised by the High Court for the purpose of ensuring that this new direction given by us is complied with by the Juvenile Courts.

Sixth Application

In an another application some points were raised on behalf of Church of North India, Holy Cross Social Service Centre, Missionaries of Charity and Delhi Council for Child Welfare.

First point

The first point was related to a practice which was being followed in Delhi in regard to making of an application for appointment of a foreigner as guardian of a child with a view to its eventual adoption.

The practice which was followed in Delhi was that the application for appointment of a foreigner as guardian is required to be signed by the representative of the recognised placement agency not only as Attorney of the foreigner but also in his personal capacity, so that the application becomes an application for appointment of the foreigner as well as the representative of the recognised placement agency as joint guardians of the child.

This procedure entails a continued obligation on the part of the recognised placement agency which was totally unnecessary and in fact, such procedure was not followed in any other part of the country.

On this point, the court directed that the court entertaining an application for appointment of a foreigner as guardian of a child should not require the representative of the recognised placement agency processing the application to join the application as a co-petitioner nor should the court insist on appointing such representative as joint guardian of the child along with the foreigner.

Second point

The second point raised on behalf of the applicants was in regard to the delay which was occurring in the procedure for giving a child in adoption to a foreigner in view of the time schedule fixed by the court in the main judgment dated 6th February, 1984 and the supplemental judgment dated 27th September 1985.

The applicants contended that the entire process laid down by the court is a long drawn out process running into a period of about 8 to 9 months and that would defeat the object of expedition in giving a child in adoption.

The applicants pointed out that under judgments, where there is a child surrendered by the biological parents,

  • a minimum period of three months is allowed to the biological parents to reconsider their decision and
  • in case of an abandoned or destitute child, a period of three months is provided for the Juvenile Court, Social Welfare Department or the Collector to clear the child and declare it free for adoption and
  • after the child is declared free for adoption, a maximum period of two months is provided to find an Indian family for the child–which period is now curtailed to three to four weeks—and
  • thereafter it takes another four weeks in mail for sending the child study and medical reports to the sponsoring agency abroad for being handed over to the foreigner for his approval and awaiting the receipt of approval and then a
  • further period of two months is allowed for the court to process the case and
  • thereafter on an average it takes another month or more to get the passport and visa formalities completed. It thus takes about 8 to 9 months after the abandonment of the child before the child is able to join its adoptive parents.

On this point, the court directed that in cases-

  • where a child is relinquished by its biological parents or by an unwed mother under a Deed of Relinquishment executed by the biological parents or the unwed mother it should not be necessary to go through the Juvenile Court or the Social Welfare Department of the Collector to obtain a release order declaring the child free for adoption but it would be enough to produce the Deed of Relinquishment before the court which consider the application for appointment of a foreigner as guardian of the child.
  • It is only where a child is found abandoned or is picked up as a destitute that the procedure of going through the Juvenile Court or the Social Welfare Department or the Collector would have to be adopted.[1]

Reference

Laxmi Kant Pandey vs Union Of India; 1987 AIR 232, 1987 SCR (1) 383


[1] For latest procedure, please refer Juvenile Justice (Care and Protection of Children) Act, 2015