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2013 DIGILAW 798 (UTT)

Kyle Spencer Allen v. Soban Singh

2013-12-13

B.S.VERMA

body2013
Judgment B.S. Verma, J. Heard. 2. By means of this petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned judgments & orders dated 24.05.2012 and 25.10.2012, passed in Misc. Application No. 06 of 2011, Kyle Spencer Allen vs. Soban Singh and others, pending before the Court of Additional District Judge, Tehri Garhwal and allow the application under Order 47 Rule 1 read with Section 114 and 151 C.P.C. and call for the record of Misc. Application No. 06 of 2011, Kyle Spencer Allen vs. Soban Singh & others, pending before the court of Additional District Judge, Tehri Garhwal. 3. By order dated 24.08.2012 and order dated 25.10.2012, learned District Judge, Tehri Garhwal has directed to issue the public notices in the daily news paper circulating in India whether any national or mission or any Indian want to adopt the child because the applicant is a foreigner. Further a list be called from the Ministry of Social Welfare and Child Development, Government of India and Ministry of Social Welfare and Child Development, Government of Uttarakhand to furnish the list of institutions, who may adopt the minor. Petitioner is directed to take step within 10 days for publication and the notice to Ministry of Social Welfare and Child Development, Government of India and Ministry of Social Welfare and Child Development, Government of Uttarakhand to ensure whether any institute or agency want to adopt the minor child. 4. Against the order, a review application was also filed that too was dismissed by the Court. Learned counsel for the petitioner has contended that the learned Court has committed an error of law in not considering the relevant para no. 11 of the judgment of Lakshmi Kant Pandey vs. Union of India, AIR 1984(2), SCC, 244 and para no.8 of Anokha (Smt.) vs. State of Rajasthan and others, 2004(1) SCC, 382. 5. Hon’ble Supreme Court laid down the guidelines for adoption of minor child by foreign parents only in respect of classes of cases herein the minor child is either orphaned or destitute or whose biological parents cannot be traced or where biological parents are traceable and have relinquished or surrender them for adoption to social organization. 5. Hon’ble Supreme Court laid down the guidelines for adoption of minor child by foreign parents only in respect of classes of cases herein the minor child is either orphaned or destitute or whose biological parents cannot be traced or where biological parents are traceable and have relinquished or surrender them for adoption to social organization. However, the Supreme Court excluded one class of children who are living with their biological parents in para 11 of the said judgment the Hon’ble Supreme Court, the same is held as under: “11. We may make it clear at the outset that we are not concerned here with cases of adoption of children living with their biological parents, for in such class of cases, the biological parents would be best persons to decide whether to give their child in adoption to foreign parents. It is only the those cases where the children sought to be taken in adoption are destitute or abandoned and are living in social or child welfare centers that it is necessary to consider what normative and procedural safeguards should be forged for protecting their interest and prompting their welfare.” 6. Therefore, the Hon’ble Supreme Court had held that the biological person would be the best person who decided whether to give their child in adoption to foreign parents. 7. In view of the para 8 of Anokha vs. State of Rajasthan and others 2004(1), SCC, 382 as under: “8. In our view, the High Court and the District Judge ered in not considering the material produced by Respondents 2 and 3 in support of their application and in rejecting the application under the Guardians and Wards Act, 1890 solely on the basis of the Guidelines. The background in which the Guidelines were issued was a number of decisions of this Court, the first of which is Lakshmi Kant Pandey vs. Union of India. This is borne out from the stated object of the Guidelines as set out in para 1.1 thereof which “is to provide a sound basis for adoption within the framework of the norms and principles laid down by the Supreme Court of India in the series of judgments delivered in L.K. Pandey vs. Union of India between 1984 and 1991”. This is borne out from the stated object of the Guidelines as set out in para 1.1 thereof which “is to provide a sound basis for adoption within the framework of the norms and principles laid down by the Supreme Court of India in the series of judgments delivered in L.K. Pandey vs. Union of India between 1984 and 1991”. The original decision of the Court was taken on the basis of a letter written by one Laxmi Kant Pandey complainting of malpractices indulged in by social organizations and voluntary agencies engaged in by social organizations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The judgment has considered the problem at great length after affidavits were filed not only by the Indian Counsel of Social Welfare but also by foreign organizations and Indian organizations which were engaged in offering and placing Indian children for adoption by foreign parents. The decision has referred to three classes of children: (i) children who are orphaned and destitute or whose biological parents cannot be traced; (ii) children whose biological parents are traceable but have relinquished or surrendered them for adoption; and (iii) Children living with their biological parents. The third category has been expressly excluded from consideration as far as the decision was concerned “for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents”. The reason is obvious. Normally, no parents with whom the child is living would agree to give a child in adoption unless he or she is satisfied that it would be in the best interest of the child. That is the greatest safeguard. 8. In case of children who are living with the style of Child Welfare Centre. In the case in hand, the child is living with his biological parents; therefore, impugned notice is not necessary to be published. It is only biological parents who may file objections, if any. Therefore, orders impugned are set aside in view of the para 11 and para 8 of the judgments of the Hon’ble Apex Court as quoted above. 9. In the light of the above, the writ petition is allowed. It is only biological parents who may file objections, if any. Therefore, orders impugned are set aside in view of the para 11 and para 8 of the judgments of the Hon’ble Apex Court as quoted above. 9. In the light of the above, the writ petition is allowed. Impugned orders dated 24.08.2012 and 25.10.2012, passed by District & Sessions Judge, Tehri Garhwal and Additional District Judge, Tehri Garhwal are hereby set aside and the learned District Judge is directed to decide the application on merit, in accordance with law.