The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.53 of 2024 Durga Sankar Behera & another …. Petitioners Mr. D.R. Mohapatra, Advocate -Versus- Pallisri Mahila Samiti …. Opposite Party None CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:23.10.2024 1. Instant revision in terms of Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as ‘the Act’) is at the behest of the petitioners assailing the correctness, legality and judicial propriety of the impugned order dated 19th December, 2017 under Annexure-1 passed in connection with C.M.A. No.39 of 2017 by the learned District Judge, Kendrapara, whereby, an application under Section 58(3) thereof filed by them and the opposite party seeking adoption order of a minor child was dismissed on the grounds inter alia that the same is not sustainable in law and therefore, deserves to be interfered with and set aside in the interest of justice. 2. The petitioners at the Prospective Adoptive Parents (PAPs) before the learned Court below, whereas, the opposite party is a recognized Specialized Adoptive Agency under Section 65 of the Act for Rehabilitation of orphan, abandoned and surrendered children through the process of adoption. 3. The petitioners are related as husband and wife and permanent resident of Kendrapara. It is pleaded that petitioner No.1 is a service holder and petitioner No.2 is a home maker and have Page 1 of 15 movable and immovable assets and they in order to adopt a child registered themselves with Child Adoption Resource Information and Guidance System ( in short ‘CARINGS’), an online system to facilitate, guide and monitor adoption programmes under the Central Adoption Resource Authority (briefly as ‘CARA’), which is a statutory body of Ministry of Women and Child Development Department, Government of India. 4. A minor child (the name withheld) reported to be born on 8th January, 2017 was declared legally free for adoption by the Child Welfare Committee, Kendrapara with the issuance of a certificate under Section 38 of the Act and registration in CARINGS vide No. OR-19 SAA-0106 for the purpose of adoption under Section 56 thereof. 5. As pleaded on record, the authority concerned conducted an inquiry with a Home Study Report (HSR) vis-(cid:224)-vis the petitioners which disclosed about their information, such as, home and
Legal Reasoning
neighbourhood, standard of living, social and family background, education, occupation, marital relationship, attitude and motivation for adoption and possible rehabilitation plan for the child and after being satisfied, they were found eligible to adopt a child and in the meanwhile, since the minor child was declared legally free for adoption, the profile of the child was referred to the petitioners, who, thereafter, accepted the same on 11th August, 2017 by signing the Child Study Report (CSR) and Medical Examination Report (MER) and after completion of all the formalities, the adoptive child was handed over to them on the basis of a Pre-adoption Foster Care being executed as required in view of Regulation 11(1) of the Adoption Regulations, 2017 with an undertaking for them to allow the authorized Social Worker to visit their home to follow up the post-adoption process; ascertain the progress and wellbeing of the child. In fact, it is pleaded on Page 2 of 15 record that the adoptive child has been handed over to the petitioners on 11th August, 2017 with the pre-adoption formalities complied with. As per the requirement of Section 58(3) of the Act since an adoption order is required, both the parties approached the learned Court below with CMA No. 39 of 2017 being filed. Upon receiving the application, learned Court below considered, whether, the institution can be permitted to deliver the minor child in adoption to the petitioners but reached at a conclusion that the same cannot be allowed for the reason that the couples are having three children, hence, not to be eligible in view of Regulation 5(8) of the Regulations, 2017. In other words, the learned Court below held and concluded that the petitioners since are having three daughters, the adoption in respect of the child is not permissible, inasmuch as, it does not fall within the exception contemplated in Regulation 5(8) of the Regulations, 2017.
Legal Reasoning
6. Heard Mr. Mohapatra, learned counsel for the petitioners. 7. None represented the opposite party. 8. The grounds upon which, the impugned order under Annexure-1 is challenged are as follows-(i)the impugned order under Annexure-1 is not sustainable in law, when learned Court below has categorically found the petitioners, namely, adoptive parents suitable as well as the adoptive child to be legally free for adoption;(ii) Regulation 5(8) of the Regulations, 2017 does not perforce deal with and relate to the eligibility criteria for the adoptive child and more so when, it is a pending adoption as per Regulation 15(2) thereof as criteria for the said purpose is guided by Regulation 4, hence, learned Court below failed to appreciate the same and thus, the impugned decision is erroneous;(iii)even though the petitioners are having three daughters but they are otherwise qualified and eligible for adoption, hence, learned Court below again failed to consider and appreciate the fact that Page 3 of 15 the adoptive child has already been handed over to the petitioners, who have treated him as their natural born son and in the meantime, developed intimacy and affection for the child and under such circumstances, to refuse to grant permission is to cause grave injustice to both the sides and hence, the impugned order under Annexure-1 is liable to be intervened with consequential directions issued in that regard; since the institution is recognized by the Government and it has already completed all the formalities and the child is in the custody of the petitioners with an agreement executed between them, the only requirement was to sanction the adoption, which the learned Court below miserably failed to ensure with the order of adoption but instead dismissed the application filed under the Act. 9. Mr. Mohapatra, learned counsel for the petitioners cited a decision of the Apex Court in the case of Lakshmi Kant Pandey Vrs. Union of India (1984) 2 SCC 244 to apprise the Court the guiding principles to be followed in case of adoption of children by foreigners living abroad. The case at hand is an in-country adoption and Mr. Mohapatra, learned counsel referring to the above decision submits that the wellbeing and welfare of the adoptive child is a factor to be taken cognizance of. The contention is that the initial process of adoption as necessary under the Regulations, 2015 was initiated followed by the formalities concluded as per the Regulations, 2017 and the adoptive child was found eligible for adoption as per Regulation 4 and was declared legally free for such adoption by the CWC, hence, therefore, after having the foster care agreement being executed, the child was handed over to the petitioners, it would be a travesty of justice to deny the permission in terms of Section 58(3) of the Act. Mr. Mohapatra, learned counsel made the Court to go through the relevant provisions of Regulations, 2017. It is further submitted that the petitioners since were inclined to take a Page 4 of 15 child on adoption had been registered in the year 2016 but by the time the process of adoption began after the child was born in the month of January, 2017, Regulations, 2017 arrived which debarred couples with three or more children except to adopt special need children as defined in Regulation 2(21) of the Regulations 2017; hard to place children as mentioned in Regulation 50 and in case of relative adoption and adoption by step-parent. The final submission of Mr. Mohapatra, learned counsel is that the petitioners since registered themselves under the Regulations, 2015 and found to be fit and eligible for adoption and thereafter, the adoptive child was handed over to them with a foster care agreement executed, learned Court below should have allowed the adoption to take place with the permission granted in that regard. One of the contentions is also that Regulation 5(8) of the Regulations, 2017 is inapplicable since it is a pending case as per Regulation 2(15) and therefore, learned Court below was required to pass an order of adoption instead of Annexure-1. 10. The moot point involved in the present case is, whether, the impugned order under Annexure-1 is legally tenable and the learned Court below was justified to deny the adoption in view of Regulation 5(8) of the Regulations, 2017 for the reason that the petitioners stand ineligible for having three children. 11. As per Regulation 4 of the Regulations, 2017, a child is eligible for adoption, if he or she is an orphan or abandoned or surrendered and declared legally free for such adoption by the CWC; a child of relative defined under Section 2(52) of the Act; and child or children of spouse from earlier marriage surrendered by the biological parents for adoption by the step-parent, whereas, for the Regulations, 2015, the first one was the only criteria. As far as Regulation 5 of the Regulations, 2017 is Page 5 of 15 concerned, the same relates to the eligibility criteria for prospective adoptive parents and as per Sub-regulation 8 thereof, a couple having three or more children shall not be considered for adoption with an exception carved out that such adoption is permissible only in respect of special need children, hard to place children and in case of relative adoption and adoption by step- parent, a provision which was absent in Regulations, 2015 as per which the prospective adoptive parents should be physically, mentally and emotionally stable; financially capable, motivated to adopt a child and should not have any life threatening medical condition besides such other general criteria with an exception that couples with more than four children shall not be eligible for adoption. So to say, a couple having four or less than four children shall have no bar seeking adoption of a normal child as per Regulation 5(j) of the Regulations, 2015, which was substituted by Regulation 5(8) of the Regulations, 2017, which allowed couples less than three children to adopt a normal child and three or more children shall be eligible only to adopt specially abled child and such other child indicated therein. The definition of ‘pending adoptions’ as per Regulation 2(15) of the Regulations, 2017 means adoption matters where the PAPs are already registered for adoptions or who have accepted the referral of a child from a Specialized Adoption Agency (SAA) or Child Care Institution before the expiry, suspension or withdrawal of recognition of such agency or institution as the case may be. 12. The instant case falls within the definition of ‘pending adoptions’ as per Regulation 2(15) of the Regulations, 2017 since, the petitioners were already registered for adoption in 2016 as well as accepted the referral of the child by the agency. All such adoption matters including adoptions pending as on the date of commencement of the Regulations, 2017 shall have to be in accordance with the provisions contained therein. The Page 6 of 15 Regulations of 2015 and 2017 have been brought into force in exercise of powers conferred under the Juvenile Justice (Care and Protection of Children) Act, 2000 and 2015 respectively in suppression of all the guidelines applicable and governing adoption of children. Regulations, 2017 was notified on 4th January, 2017 by Ministry of Women and Child Development, Government of India and included pending adoptions in view of Regulation 2(15) thereof. As per the procedure prescribed seeking children for adoption, the provisions in Regulation 6 of the Regulations 2017 are to be complied with, which is in respect of orphan or abandoned child and Regulation 7 relates to a surrendered child. In fact, Chapter II of the Regulations, 2017 is confined to in-country adoption, whereas, Chapters III and IV deal with adoption procedures for resident Indians and non- resident Indians, Oversees citizens of India and Foreign PAPs. Since the case of the petitioners is an in-country adoption defined in Regulation 2(12) of the Regulations, 2017, it is to be governed by the procedure for adoption detailed under Chapter II thereof. In fact, Regulations, 2017 has been made applicable retrospectively including the pending adoptions. Any such adoption matters pending as on 4th January, 2017 vis-(cid:224)-vis PAPs already registered for adoption or who have accepted the referral of a child from the agency or the institution shall be governed by the procedure prescribed under Chapter II. To reiterate, since the petitioners had already been registered and adoption was pending as on the date of the notification published, it has to be dealt with as per the Regulations, 2017. 13. With the above discussion, the contention of Mr. Mohapatra, learned counsel for the petitioners that Regulation 5(8) of the Regulations, 2017 not to be applicable is unacceptable. Though the eligibility criteria of the adoptive child as per Rule 4 is fulfilled but at the same time, the adoptive parents are also to be held Page 7 of 15 eligible confirming the provisions of Regulation 5 of the Regulations, 2017 which disentitle them for adoption for having three or more children with an exception that such adoption is permitted only in respect of specially abled children and not a normal child. Each and every adoption shall have to be in conformity with the provisions of the Regulations, 2017 including pending adoptions, hence, therefore, to contend that Regulation 5 (8) is not applicable is an argument liable to be rejected. 14. In course of hearing, Mr. Mohapatra, learned counsel for the petitioners referred to an order dated 15th March, 2022 of this Court in CRLREV No.94 of 2022 to justify the adoption in the interest of justice and to provide the helpless and abandoned child under adoption, a better future filled with love, affection and care of the petitioners. In the case (supra), the Court below declined permission for adoption in respect of adoptive child by the citizens of United States of America (USA) only on the ground of income, however, such adoption was allowed by this Court with a conclusion that the PAPs are having a disclosed income reasonable and much above the income of the parents seeking adoption in the case of Bal Asha Trust, Bal Asha Dham Vrs. Caleb Joseph Butler, American and Jayme Lynn Butler, American, a decision of Bombay High Court in Foreign Adoption Petition No.14 of 2019 decided on 2nd May, 2019. But, in the considered view of the Court, the above order of this Court in Subhadra Mahatab Seva Sadan, Khurda (CRLREV No.94 of 2022) is not to render any assistance to the case of the petitioners. In the said case, all the conditions were fulfilled by the prospective parents and the adoptive child and the dispute related to the income of the former but the income was found to be acceptable being much above the income of the adoptive parents in Bal Asha Trust. It is always a subjective satisfaction regarding income and a duty is cast upon the Court to consider, whether, with an income Page 8 of 15 disclosed, the prospective parents would be able to manage the adoption keeping in view the paramount interest of the adoptive child. In such view of the matter, as the income of the adoptive parents found to be acceptable and there was no other impediment vis-(cid:224)-vis the adoption of the child and moreover, it is the responsibility of the Central Adoption Authority of USA to verify all such aspects in view of the law declared in Hague Convention, this Court, in the case referred to, allowed the adoption and set aside the order of refusal to grant permission passed by the Court below with a conclusion that the same is unsustainable and contrary to the spirit of the International Law declared, signed and ratified by the member Nations in the Hague Convention as well as the provisions of the Act. The decision (supra) of this Court is in relation to an adoption by the foreigners and as all such criteria found to be fulfilled, hence, the adoption was allowed and as earlier concluded, the same is not applicable in case of the petitioners for the reason that they stand barred for adoption of a normal child. 15. What is the way out in the peculiar facts and circumstances of the case at disposal? Who is at fault since the adoption has failed? Whether the petitioners are remediless? What would be the fate of the adoptive child, who has already been handed over to the petitioners in 2017 with a foster care agreement executed with the agency? What was the responsibility of the institution, which processed the matter of adoption involving the petitioners and the adoptive child? Lot may other questions emerge prominently being the future of the adoptive child and what would happen to him, if the adoption is not allowed at this distant point of time. It is not known, whether, the child under adoption is handed over back to the agency later to the impugned order under Annexure- 1. The decision of learned Court below arrived at in the month of December, 2017 shortly after the foster care agreement was Page 9 of 15 executed. Considering the pleading on record and submission of Mr. Mohapatra, learned counsel for the petitioners, the Court has to proceed on the premise that the adoptive child is in the custody of the petitioners ever since the foster care agreement was executed and after being handed over to petitioners in 2017. If such an eventuality, when the adoptive child is with the petitioners till date since 2017 and by now has become seven years old, what would be the course of action left to be followed and whether, the child is to be returned back to the agency or the institution, which would certainly have serious consequences in terms of the psychological or mental faculty of the child, who received the love and care of his adoptive parents post-execution of the foster care agreement. Is it that the Court is helpless to rescue the petitioners and the adoptive child? How adoption was processed by the institution with the foster care agreement executed vis-a-vis the petitioners after the commencement of the Regulations, 2017 being ignorant of Regulation 5(8) thereof? Whether the agency or institution is responsible for the present stalemate? Whether the Court is to remain a mute spectator and maintain a stony silence simply blaming the institution, which processed the adoption leading to the foster care agreement executed in 2017 when the Regulations, 2017 was in force? 16. On a bare reading of Section 1(4) of the Juvenile Justice (Care and Protection of Children) Act, 2015, it is clear that the same provides for the adoption of children in need of care and protection and children in conflict with law and lays down standards and conditions under which their welfare including adoption is regulated. The Regulations, 2017 framed under the Act provide a detailed procedure for adoption both in respect of orphans, abandoned or surrendered children as also children of relatives under Section 2(52) thereof and children of spouse from an earlier marriage, who have been surrendered by the biological Page 10 of 15 parents for adoptions by the step-parents. As earlier discussed, Regulation 5 prescribes the eligibility criteria for the PAPs. In fact, in view of reported incidence of abuse of children in institution and other surrounding circumstances and on the ratification of the Hague Convention, the Act was introduced in India. Adoptions are regulated by the provisions of the Hindu Adoption and Maintenance Act, 1956 and the Juvenile Justice (Care and Protection of Children) Act, 2015 and the rules/regulations made thereunder. The adoption of children can be by the following means such as directly from the biological parents of the child called as ‘Direct Adoptions’ but in case of children, who are adopted through an agency are called ‘Indirect Adoptions’. The prospective parents could either be related to the child and the family or be complete strangers, who may for any of the categories, namely, Indian citizens or Non-Resident Indians, persons of Indian origin or even foreigners and the former would be domestic adoptions and the latter inter-country adoptions. As per the Regulations, 2017, in-country adoptions mean adoption of a child by a citizen of India residing in India, which is distinct from the inter-country adoptions. India has acceded to the United Nations Convention on the Rights of the Child, 1990 dated 11th December, 1992 and ratified the Convention on Protection of Children and Cooperation in respect of Inter-Country Adoption, 1993. Later to the Hague Convention, to regulate adoptions in India, the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted. The Regulations, 2017 has been introduced by the Government of India in exercise of powers conferred by Section 68(c) read with Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016) in supersession of guidelines governing adoption of children except as respects things done or omitted to be done before such supersession. With the relevant provision in place under Regulations, 2017, at the Page 11 of 15 cost of repetition, it is included that pending adoptions and all such adoption in future shall be governed by it. 17. As many questions emerged and stated hereinbefore, the one which hinges the most is that the foster care agreement was executed and the child to have been handed over to the petitioners in 2017, what would be the consequences, if in case, at present, the adoption is declined confirming the impugned order under Annexue-1, which in the considered view of the Court, is a conclusion legally correct. Learned Court below while considering adoption of the child was required to confirm to the provisions of the Regulations, 2017 and since adoption of a normal child is prohibited in favour of the couples having three or more children, permission was therefore not accorded and as earlier held and concluded, such a decision is unassailable but as the Court is concerned with the future of the adoptive child and confronted with so many questions discussed before, it is to respond paving the way out with a just remedy. 18. Having faced with the peculiar situation at hand on the premise that the adoptive child is presently with the petitioners accepting the pleading on record and the above claim at its face value, the Court is inclined to respond keeping in view that welfare and wellbeing of the adoptive child in particular. The Court is really bothered as it is confronted with a question as to what would happen to the child under adoption in case he is delivered back to the institution, to which he is/was originally belonged to. In case, such a situation is to take place, not only the petitioners as the PAPs would suffer immensely but also, it is certain to affect the adoptive child as in the meantime since 2017 there must have been an emotional connect developed between them. It would be extremely difficult for the petitioners to deal with and tackle such a situation, which may have a disastrous Page 12 of 15 consequence particularly for the adoptive child. A child of seven years old with the emotional attachment with his prospective parents having been received by the latter, at a time, when he was barely seven months old, it is really difficult to comprehend the inevitable consequences, in case the adoption failed and the child is handed over back to the institution. The trauma to which the petitioners could be subjected to, in the event, the child is received back by the institution can be unimaginable and beyond one’s comprehension. Having said that, the Court is of the conclusion that extraordinary situations demand exercise of extraordinary powers to reconcile keeping in view the surrounding circumstances and particularly, welfare of the adoptive child or else, it could result in serious prejudice to him and the parties involved, which may be beyond repair. Though, at present, the Court is in seissin of the matter in exercise of its revisional powers and as earlier held that the learned Court below had to decline adoption to confirm to the provisions of Regulations, 2017, it is of the view that extraordinary jurisdiction is to be invoked, otherwise, it would result in grave injustice to the parties. But, at the same time, the Court is to observe that the institution or the agency responsible for the adoption could not have been ignorant of Regulation 5(8) of the Regulations, 2017. Ignorance of law is no excuse. The institution or the agency cannot claim that the adoption in respect of the adoptive child was processed under the impression that it would be governed by the Regulations, 2015. It cannot also be claimed that such adoption has taken place either being ignorant or not conversant with the law in place. It was the duty of the institution to process the adoption with due regard to the Regulations, 2017 and was to confirm to the same before adoptive child was handed over to the petitioners with the execution of foster care agreement. With the execution of such foster care and the child being handed over Page 13 of 15 to the adoptive parents which could not have been allowed in view of Regulation 5(8) of Regulations, 2017, with the passage of time and 7 years having elapsed since such execution, the parties have reached to a level, which though may not be irreversible but likely to have serious repercussions in case the adoption fails. Under the above circumstances, the Court is forced to adopt a path, which could have been avoided much earlier, had the institution being vigilant and hence, it inclined to condone the error committed in the process with a decision reached at exercising extraordinary jurisdiction to meet a special situation of the present kind. At the same time, it is inclined to caution the institution to be more vigilant in future as in the meantime, law has again changed with the Regulations, 2022 being introduced. Such institution may emerge in future and therefore, the agency or the institution shall have to process the adoption with care confirming it to the provisions of the Act and regulations framed thereunder, otherwise, it would result in a chaotic situation like the one, the Court is presently confronted with. Thus, the conclusion is that the adoptive child since already in custody of the petitioners, this Court, in exercise of its inherent jurisdiction under Section 482 Cr.P.C., is inclined to hold that though the impugned order under Annexure-1 is legally tenable but the adoption should be permitted as a special case keeping in view the welfare and paramount interest of the child, who is currently in custody of the prospective parents, as any other decision denying it is likely to have unimaginable suffering and prejudice being caused to both the sides. 19. Hence, it is ordered.
Decision
20. In the result, the revision stands disposed with the permission granted in favour of the opposite party to deliver the minor child in adoption to the petitioners (PAPs) invoking the inherent Page 14 of 15 jurisdiction of the Court as the same is found absolutely necessary and expedient, an exercise, which shall, for all intent and purpose, be treated to have been accomplished as per the law and regulations with an observation that the opposite party to be more cautious and vigilant in future as any such lapse from its side is certainly to invite serious problems for all especially for the child involved in adoption besides the prospective parents. 21. However, in the circumstances, there is no order as to costs. Balaram (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Nov-2024 14:51:00 Page 15 of 15