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PETITIONER:

SUMANLAL CHHOTALAL KAMDAR ETC.

Vs.

RESPONDENT:

MISS ASHA TRILOKBHAI SHAH ETC.

DATE OF JUDGMENT09/05/1995

BENCH:

SAHAI, R.M. (J)

BENCH:

SAHAI, R.M. (J)

HANSARIA B.L. (J)

CITATION:

1995 AIR 1892 1995 SCC (3) 700

JT 1995 (5) 165 1995 SCALE (3)553

ACT:

HEADNOTE:

JUDGMENT:

THE 9TH DAY OF MAY, 1995

Present:

Hon'ble Mr. Justice R.M.Sahai

Hon'ble Mr. Justice B.L.Hansaria

Mr. P.H. Parekh, Ms. Smrita Mishra, Mr. N.K.Sahoo, Advs. for

the appellants.

Mr. S.Ganesh, Mr. C.H.Patel, Ms. Reema Bhandari, Mr.

M.N.Shroff, Mr. K.V.Sreekumar and Ms. Kamini Jaiswal, Advs.

for the Respondents.

JUDGMENT

The following Judgment of the Court was delivered:

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5403-04 OF 1995

[Arising out of S.L.P.(C) Nos.3662-63 of 1989]

Sumanlal Chhotalal Kamdar etc. ..... Appellants

Versus

Miss Asha Trilokbhai Shah etc. ..... Respondents

JUDGMENT

R.M. Sahai, J.

An important question in relation to the adoption of

infants from orphanage or ashrams by foreign nationals is

raised by the appellants, who claim to be social workers.

They approached the High Court, invoked its appellate

jurisdiction against the order passed by the District Judge,

Rajkot, allowing the application filed by Superintendent,

Kathiawar Nirashrit Balashram as Power of Attorney holder of

a Norwegian couple under Section 7 of the Guardians and

Wards Act, 1890 and appointing the Norwegian couple as the

guardian of the child with certain conditions mentioned in

the order. By the time the appeal came up for hearing, the

law of adoption by foreign nationals was streamlined by this

Court in two decisions: Lakshmi Kant Pandey v. Union of

India (1984) 2 SCR 795 and Laxmi Kant Pandey v. Union of

India & Anr. (1985) Supp. 3 SCR 71. The learned Single

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Judge, therefore, after examining the conditions imposed by

the District Judge held that the guidelines laid down by

this Court had been scrupulously followed. The order was

maintained in appeal as well.

The guidelines laid down by the Court are quite

exhaustive. What is urged is that they are not being carried

out either in letter or spirit. It is, therefore, necessary

to reiterate the guidelines laid down by this Court in the

case of Lakshmi Kant Pandey (supra) and further make it

clear that whenever an application is filed for permission

to adopt a child by a foreign national then the guidelines

would be strictly adhered to. The authority permitting

adoption should explain to the biological parent of the

child about the nature and effect of the adoption and the

possible permanent loss of contact from the child. In

absence of a finding that the authorised officer took

precaution to explain the effect of adoption it may be

rendered infirm. This is demonstrated by the facts of this

case as the Superintendent, as holder of Power of Attorney

of the Norwegian couple, became the applicant and as

Superintendent of the Ashram gave the child in adoption.

That was not proper. It was the duty of the Superintendent

to have contacted the mother and the father, if they were

known, and to explain to them the effect of adoption unless

they were not available. However, we do not interfere with

the orders passed by the courts below, but as indicated

above, the guidelines have to be enforced strictly, as

violation of the same may not only render the adoption

infirm, but may lead to proceeding against the person

infringing the same.

The appeals are thus disposed of by reiterating the

guidelines laid down by this Court and stating that any

violation of these or non-compliance may lead to adoption

being declared invalid and expose the persons concerned to

strict action including prosecution.