FACTS IN BRIEF :- This writ petition was initiated on the basis of a letter addressed by the petitioner complaining of malpractices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents, who according to the petitioner are being used for illegal purposes like child sexual abuse, cheap labor and other similar works. The petitioner accordingly sought relief restraining the Indian based private agencies from carrying out further activity of routing children for adoption abroad.
JUDGMENT:- The Court, expressed its concern that children needed special protection owing to their tender age and physique mental immaturity and incapacity to look after themselves. It also observed that they must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire self-confidence and self-respect and a balanced view of life.
Commenting upon the practice of adoption, the court held that it was the well being of the child which was of utmost importance and if the foreigner who wanted to take the child in adoption was found to be genuinely interested, the child may be given in adoption to him. However the Court also warned that while supporting the practice of inter-country adoption it was necessary to ascertain that the primary object of giving the child in adoption being the welfare of the child, great care was to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide to the child a life of moral or material security or the child may be subjected to moral or sexual abuse or forced labor or experimentation for medical or other research and may be placed in a worse situation than that in his own country.
Thereon the Court laid down the procedure for giving a child in adoption to foreign parents, which is summerised as follows;
Every application from a foreigner desiring to adopt a child must be sponsored by a social or child welfare agency recognized or licensed by the Government of the country in which the foreigner is resident.
Before a decision is taken by the biological parents to surrender the child for adoption, they should be helped to understand all the implications of adoption including the possibility of adoption by a foreigner and they should be told specifically that in case the child is adopted, it would not be possible for them to have any further contact with the child.
It should not be open to any and every agency or individual to process an application from a foreigner for taking a child in adoption and such application should be processed only through a social or child welfare agency licensed or recognized by the Government of India or the Government of the State in which it is operating.
The entire procedure including preparation of child study report, making of necessary enquiries and taking of requisite steps leading up to the filing of an application for guardianship of the child proposed to be given in adoption, must be completed expeditiously so that the child does not have to remain in the care and custody of social or child welfare agency without the warmth and affection of family life, longer than is absolutely necessary.
If a child is to be given in inter-country adoption, it would be desirable that it is given in such adoption as far as possible before it completes the age of 3 years. The reason is that if a child is
adopted before it attains the age of understanding, it is always easier for it is to get assimilated and integrated in the new environment in which it may find itself on being adopted by a foreign parent
FOR COMMON MAN:- This judgment reflects the concern towards the special protection of the children. This case is also illustrated for the fact that it marked the trend of the Court in framing guidelines and providing procedure, a task ear-marked for the executive, in the absence of any statutory rules for the same being provided for by the executive.
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