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REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.    1053       of 2013 (Arising out of SLP (Civil) No. 29505 of 2012)

Stephanie Joan Becker ... Appellant(s) Versus

State and Ors. ... Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

Leave granted.

2. The  rejection  of  the  applications  filed  by  the  appellant  

under Sections 7 and 26 of the Guardians and Wards Act, 1890  

(hereinafter for short the “Guardians Act”) by the learned Trial  

Court vide its order dated 17.09.2010 in Guardianship Case No. 2  

of 2010 and the affirmation of the said order made by the High  

Court of Delhi by its order dated 09.07.2012 in FAO No. 425 of  

2010 has been put to challenge in the present appeal.  By the  

application  filed  under  Section  7  of  the  Guardians  Act,  the  

appellant had sought for an order of the Court appointing her as

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the  guardian  of  one female  orphan child  Tina aged about  10  

years whereas by the second application filed under Section 26  

of the Guardians Act the appellant had sought permission of the  

Court to take the child Tina out of the country for the purpose of  

adoption.

3. The  rejection  of  the  aforesaid  two  applications  by  the  

learned Trial Court as well as by the High Court is on a sole and  

solitary  ground,  namely,  that  the  appellant,  being  a  single  

prospective adoptive parent,  was aged about 53 years at  the  

relevant point of time whereas for a single adoptive parent the  

maximum permissible age as prescribed by the Government of  

India Guidelines in force was 45.  Though a no objection, which  

contained an implicit relaxation of the rigour of the Guidelines  

with regard to age, has been granted by the Central Adoption  

Resource Authority (CARA),  the High Court  did not consider  it  

appropriate to take the said no objection/relaxation into account  

inasmuch as  the  reasons for  the  relaxation granted  were  not  

evident on the face of the document i.e. no objection certificate  

in question.

4. To understand and appreciate the contentious issues that  

have arisen in the present appeal, particularly, the issues raised

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by  a  non-governmental  organization  that  had  sought  

impleadment  in  the  present  proceedings  (subsequently  

impleaded as respondent No. 4) it will be necessary to take note  

of the principles of law governing inter-country adoption, a short  

resume of which is being made hereinbelow.  But before doing  

that it would be worthwhile to put on record that the objections  

raised  by the  Respondent  No.4,  pertain  to  the  legality  of  the  

practice of inter country adoption itself, besides the bonafides of  

the  appellant  in  seeking  to  adopt  the  child  involved  in  the  

present  proceeding  and  the  overzealous  role  of  the  different  

bodies  involved  in  the  process  in  question  resulting  in  side  

stepping of the laid down norms.

5. The law with regard to inter-country adoption, indeed, was  

in a state of flux until the principles governing giving of Indian  

children in adoption to foreign parents and the procedure that  

should  be  followed  in  this  regard  to  ensure  absence  of  any  

abuse, maltreatment or trafficking of children came to be laid  

down by  this  Court  in  Lakshmi  Kant  Pandey  v.  Union  of  

India1.   The aforesaid proceedings were instituted by this Court  

on the basis of a letter addressed by one Lakshmi Kant Pandey, a  

1 (1984) 2 SCC 244

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practicing  advocate  of  this  Court  with  regard  to  alleged  

malpractices indulged in by social and voluntary organizations  

engaged in the work of offering Indian children in adoption to  

foreign parents.  After an elaborate consideration of the various  

dimensions of the questions that arose/were raised before the  

Court and the information laid before it by the Indian Council of  

Social Welfare, Indian Council  of Child Welfare, SOS Children’s  

Villages  of  India  (respondent  No.  2  herein)  and  also  certain  

voluntary organizations working in the foreign jurisdictions, this  

Court, after holding in favour of inter country adoption, offered  

elaborate  suggestions  to  ensure  that  the  process  of  such  

adoption  is  governed  by  strict  norms,  and  a  well  laid  down  

procedure  to  eliminate  the  possibility  of  abuse  or  misuse  in  

offering  Indian  children  for  adoption  by  foreign  parents  is  in  

place.  This Court in  Lakshmi Kant Pandey (supra) also laid  

down the approach that is required to be adopted by the courts  

while dealing with applications under the Guardians and Wards  

Act  seeking  orders  for  appointment  of  foreign  prospective  

parents as guardians of Indian children for the eventual purpose  

of adoption.   Such directions, it may be noticed, was not only  

confined to hearing various organizations like the Indian Council

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for Child Welfare and Indian Council of Social Welfare by issuance  

of appropriate notices but also the time period within which the  

proceedings filed before the Court are to stand decided.  Above  

all, it will be necessary for us to notice that in  Lakshmi Kant  

Pandey (supra) this Court had observed that :

“Of  course,  it  would  be  desirable  if  a  Central  Adoption  Resource  Agency  is  set  up  by  the  Government of India with regional branches at a  few  centres  which  are  active  in  inter-country  adoptions.  Such  Central  Adoption  Resource  Agency can act as a clearing house of information  in  regard  to  children  available  for  inter-country  adoption  and  all  applications  by  foreigners  for  taking  Indian  children  in  adoption  can  then  be  forwarded by the social or child welfare agency in  the  foreign  country  to  such  Central  Adoption  Resource  Agency  and  the  latter  can  in  its  turn  forward  them  to  one  or  the  other  of  the  recognized social or child welfare agencies in the  country.”

6. Pursuant  to  the  decision  of  this  Court  in  Lakshmi  Kant  

Pandey  (supra) surely,  though  very  slowly,  the  principles  

governing  adoption  including  the  establishment  of  a  central  

body,  i.e.,  Central  Adoption  Resource  Authority  (CARA)  took  

shape and found eventual  manifestation in  a  set  of elaborate  

guidelines  laid  down  by  the  Government  of  India  commonly  

referred  to  as  the  Guidelines  For  Adoption  from  India  2006

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(hereinafter referred to as “the Guidelines of 2006”).  A reading  

of the aforesaid  Guidelines  indicates  that  elaborate provisions  

had been made to regulate the pre-adoption procedure which  

culminates in a declaration by the Child Welfare Committee that  

the child is free for adoption.   Once the child (abandoned or  

surrendered) is so available for adoption the Guidelines of 2006  

envisage distinct and separate steps in the process of adoption  

which may be usefully noticed below :

(1)     Enlisted  Foreign  Adoption  Agency  (EFAA)

      The applicants will have to contact or register  with  an  Enlisted  Foreign  Adoption  Agency  (EFAA)/Central  Authority/Govt.  Deptt.  in  their  country,  in  which they are resident,  which  will  prepare  the a  Home  Study  Report  (HSR)  etc.  The  validity  of  “Home  Study  Report”  will  be  for  a  period  of  two  years. HSR report prepared before two years  will be updated at referral.

      The applicants should obtain the permission  of  the  competent  authority  for  adopting  a  child  from  India.  Where  such  Central  Authorities or Government departments are  not available, then the applications may be  sent  by the enlisted agency with requisite  documents  including  documentary  proof  that the applicant is permitted to adopt from  India  

      The  adoption  application  dossier  should  contain  all  documents  prescribed  in Annexure-2. All  documents  are  to  be

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notarized.  The  signature  of  the  notary  is  either  to  be  attested  by  the  Indian  Embassy/High  Commission  or  the  appropriate  Govt.  Department  of  the  receiving country.  If  the documents  are in  any language other than English, then the  originals must be accompanied by attested  translations

      A copy of the application of the prospective  adoptive  parents  along  with  the  copies  of  the HSR and other documents will have to  be forwarded to RIPA by the Enlisted Foreign  Adoption Agency (EFAA) or Central Authority  of that country.

(2)   Role  of  Recognized  Indian  Placement  Agency (RIPA)

      On  receipt  of  the  documents,  the  Indian  Agency will  make efforts  to  match  a  child  who is legally free for inter-country adoption  with the applicant.

      In case no suitable match is possible within 3  months, the RIPA will inform the EFAA and  CARA with the reasons therefore.

(3)   Child  being  declared  free  for  inter- country adoption - Clearance by ACA

      Before a RIPA proposes to place a child in the  Inter country adoption, it must apply to the  ACA for assistance for Indian placement.   

      The child should be legally free for adoption.   ACA will  find a  suitable  Indian prospective  adoptive parent within 30 days, failing which  it  will  issue  clearance  certificate  for  inter- country adoption.

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      ACA  will  issue  clearance  for  inter-country  adoption  within  10  days  in  case  of  older  children above 6 years, siblings or twins and  Special Needs Children as per the additional  guidelines issued in this regard.

      In case the ACA cannot find suitable Indian  parent/parents  within  30  days,  it  will  be  incumbent  upon  the  ACA  to  issue  a  Clearance Certificate on the 31st day.

      If ACA Clearance is not given on 31st day, the  clearance  of  ACA  will  be  assumed  unless  ACA  has  sought  clarification  within  the  stipulation period of 30 days.

      NRI parent(s) (at least one parent) HOLDING  Indian Passport will be exempted from ACA  Clearance, but they have to follow all other  procedures as per the Guidelines.

(4)   Matching of the Child Study Report with  Home Study Report of FPAP by RIPA

      After  a  successful  matching,  the  RIPA  will  forward  the  complete  dossier  as  per  Annexure  3  to  CARA  for  issuance  of  “No  Objection Certificate”.  

(5)    Issue of  No Objection Certificate (NOC)  by CARA

      RIPA shall make application for CARA NOC in  case of foreign/PIO parents only after  ACA  Clearance Certificate is obtained.

      CARA will issue the ‘NOC’ within 15 days from  the date of receipt of the adoption dossier if  complete in all respect.

      If  any  query  or  clarification  is  sought  by  CARA, it will be replied to by the RIPA within  10 days.

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      No  Indian  Placement  Agency  can  file  an  application in the competent court for inter- country  adoption  without  a  “No  Objection  Certificate” from CARA.  

(6)    Filing of Petition in the Court      On receipt of the NOC from CARA, the RIPA  

shall file a petition for adoption/guardianship  in the competent court within 15 days.  

     The  competent  court  may  issue  an  appropriate order for the placement of the  child with FPAP.        

      As per the Hon’ble Supreme Court directions,  the concerned Court may dispose the case  within 2 months.

(7)  Passport and Visa       RIPA has to apply in  the Regional  Passport  

Office  for  obtaining  an  Indian  Passport  in  favour of the child.

       The  concerned  Regional  Passport  Officer  may issue the Passport within 10 days.

      Thereafter  the  VISA  entry  permit  may  be  issued  by  the  Consulate/Embassy/High  Commission  of  the  concerned  country  for  the child.

(8) Child travels to adoptive country       The  adoptive  parent/parents  will  have  to  

come to India and accompany the child back  to their country.

7. Even after the child leaves the country the Guidelines of  

2006  contemplate  a  process  of  continuous  monitoring  of  the  

welfare of the child through the foreign placement agency until

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the process of adoption in the country to which the child has  

been  taken  is  completed,  which  process  the  Guidelines  

contemplate completion within two years.  The monitoring of the  

welfare of the child after the process of adoption is complete and  

the steps that are to be taken in cases where the adoption does  

not  materialize  is  also  contemplated  under  the  Guidelines  of  

2006.   As the said aspects are not relevant for the purposes of  

the present adjudication the details in this regard are not being  

noticed.  What, however, would require emphasis, at this stage,  

is  that  by  and  large  the  Guidelines  of  2006  framed  by  the  

Ministry of Women and Child Development are in implementation  

of  the  decision  of  this  Court  in  the  case  of  Lakshmi  Kant  

Pandey (supra).   

8. Two  significant  developments  in  the  law  governing  

adoptions may now be taken note of.  Section 41 of the Juvenile  

Justice (Care and Protection of Children) Act, 2000 (hereinafter  

for  short  the  “JJ  Act”)  was  amended  by  Act  33  of  2006  by  

substituting sub-Sections 2, 3 and 4 by the present provisions  

contained  in  the  aforesaid  sub-Sections  of  Section  41.   The  

aforesaid amendment which was made effective from 22.8.2006  

is significant inasmuch as under sub-Section 3 power has been

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conferred  in  the  Court  to  give  a  child  in  adoption  upon  

satisfaction that the various guidelines issued from time to time,  

either by the State Government or the CARA and notified by the  

Central Government have been followed in the given case.  The  

second significant development in this regard is the enactment  

of the Juvenile  Justice (Care  and Protection of Children)  Rules  

2007 by repeal of the 2001 Rules in force.  Rule 33 (2) makes it  

clear  that  “for all  matters  relating to adoption, the guidelines  

issued by the Central Adoption Resource Agency and notified by  

the Central Government under sub-section (3) of Section 41 of  

the Act, shall apply.”  Rule 33 (3) in the various sub-clauses (a)  

to  (g)  lays  down  an  elaborate  procedure  for  certifying  an  

abandoned child to be free for adoption. Similarly, sub-rule (4) of  

Rule 33 deals with the procedure to be adopted for declaring a  

surrendered child to be legally free for adoption.  Once such a  

declaration is made, the various steps in the process of adoption  

spelt out by the Guidelines of 2006, details of which have been  

extracted hereinabove, would apply finally leading to departure  

of the child from the country to his/her new home for completion  

of the process of adoption in accordance with the laws of the  

country to which the child had been taken.  In this regard the

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order of the courts in the country under Section 41(3) of the JJ  

Act would be a step in facilitating the adoption of the child in the  

foreign country.

9. It will also be necessary at this stage to take note of the fact  

that  the  Guidelines  of  2006 stand repealed  by a  fresh set  of  

Guidelines  published  by  Notification  dated  24.6.2011  of  the  

Ministry of Women and Child Development, Government of India  

under Section 41(3) of the JJ  Act.   The time gap between the  

coming into effect of the provisions of Section 41(3) of the JJ Act  

i.e. 22.08.2006 and the publication of the 2011 Guidelines by the  

Notification dated 24.6.2011 is on account of what appears to be  

various  procedural  steps  that  were  undertaken  including  

consultation  with  various  bodies  and  the  different  State  

Governments.   A  reading  of  the  Guidelines  of  2011  squarely  

indicate  that  the  procedural  norms  spelt  out  by  the  2006  

Guidelines  have  been  more  elaborately  reiterated  and  the  

requirements of the pre-adoption process under Rules 33(3) and  

(4) have been incorporated in the said Guidelines of 2011.   As a  

matter of fact, by virtue of the provisions of Rule 33(2) it is the  

Guidelines  of  2011  notified  under  Section  41(3)  of  the  JJ  Act  

which  will  now govern  all  matters  pertaining  to  inter-country

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adoptions  virtually conferring on the said Guidelines a statutory  

flavour and sanction.  Though the above may not have been the  

position on the date of the order of the learned trial court i.e.  

17.9.2010, the full vigour of Section 41(3) of the JJ Act  read with  

Rule  33 (2)  of the  Rules  and the Guidelines  of 2011 were in  

operation on the date of the High Court order i.e. 9.7.2012. The  

Notification  dated  24.06.2011  promulgating  the  Guidelines  of  

2011 would apply to all  situations except such things done or  

actions completed before the date of the Notification in question,  

i.e., 24.06.2011.  The said significant fact apparently escaped the  

notice of the High Court.   Hence the claim of the appellant along  

with  consequential  relief,  if  any,  will  have  to  be  necessarily  

considered on the basis of the law as in force today, namely, the  

provisions of the JJ Act and the Rules framed thereunder and the  

Guidelines of 2011 notified on 24.6.2011.  In other words, if the  

appellant is found to be so entitled, apart from declaring her to  

be natural  guardian and grant of permission to take the child  

away  from  India  a  further  order  permitting  the  proposed  

adoption would also be called for.  Whether the order relating to  

adoption of the child should be passed by this Court as the same  

was not dealt with in the erstwhile jurisdictions (trial court  and

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the High Court)   is an incidental  aspect  of the  matter  which  

would require consideration.

10. The facts of the present case, as evident from the pleadings  

of the parties and the documents brought on record, would go to  

show that the appellant’s case for adoption has been sponsored  

by an agency (Journeys of the Heart, USA) rendering service in  

USA which is recognized by CARA.  The Home Study Report of  

the  family  of  the  appellant  indicates  that  the  appellant  apart  

from being gainfully employed and financially solvent is a person  

of  amicable  disposition  who has  developed  affinity  for  Indian  

culture and Indian children.  The appellant, though unmarried,  

has the support of her brother and other family members who  

have  promised  to  look  after  the  child  in  the  event  such  a  

situation becomes necessary for any reason whatsoever.   The  

Child  Study  Report  alongwith  medical  examination  Report  

prepared by the recognized agency in India has been read and  

considered by the appellant and it is only thereafter that she had  

indicated  her willingness to adopt the child in question.  Before  

permitting  the  present  process  of  inter  country  adoption  to  

commence, all possibilities of adoption of the child by an Indian  

parent were explored which however did not prove successful.

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The matter was considered by the No Objection Committee of  

the CARA and as stated in the affidavit of the said agency filed  

before this Court, the No Objection Certificate dated 03.02.2010  

has  been  issued  keeping  in  mind  the  various  circumstances  

peculiar to the present case, details of which are as hereunder :

• “Child Tina was an older female child (aged 7 years when the  NOC was issued) and thus relaxation was permissible as per the  guidelines.

• The Prospective parent was 54 years of age, which is within the  age  up  to  which  adoption  by  foreign  prospective  parent  is  permissible after relaxation i.e. 55 years.

• The Prospective Adoptive Parent is otherwise also suitable as  she  is  financially stable  and there  are  three  reference  letters  supporting adoption of the child by her. The Home study report  of  the  prospective  parent  (Ms.  Stephanie Becker)  shows  the  child as kind, welcoming, caring and responsible individual with  physical, mental emotional and financial capability to parent a  female child up to age of seven years from India.  

• Procedures such as declaration of the child as legally free for  adoption by CWC Child Welfare Committee (CWC); ensuring  efforts  for  domestic  adoption  and  clearance  of  Adoption  Coordinating Agency;  and  taking consent  of  older  child  had  been followed.

• Follow-up of the welfare of the child was to be properly done  through Journeys of  the Hearts,  USA, the authorized agency  which had also given an undertaking to ensure the adoption of  child Tina according to the laws in USA within a period not  exceeding two years from the date of arrival of the child in her  new home. The agency has also committed to send follow-up  reports as required.  

• The  Biological  brother  of  the  prospective  parent,  Mr.  Philip  Becker  Jr.  and  his  wife  Ms.  Linda  Becker  have  given  an

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undertaking on behalf of the single female applicant to act as  legal guardian of the child in case of any unforeseen event to the  adoptive parent. This is another important safeguard.

• Article 5 from the Office of Children’s Issues, US Department  of State allowing child Tina to enter and reside permanently in  the United States  and declaring suitability of  the prospective  adoptive parent, was available.”

11. In view of the facts as stated above which would go to show  

that  each  and  every  norm of  the  adoption  process  spelt  out  

under the Guidelines of 2006, as well as the Guidelines of 2011,  

has been adhered to, we find that the apprehension raised by  

the intervener, though may have been founded on good reasons,  

have proved themselves wholly unsubstantiated in the present  

case.  If the foreign adoptive parent is otherwise suitable and  

willing, and consent of the child had also been taken (as in the  

present case) and the expert bodies engaged in the field are of  

the view that in the present case the adoption process would end  

in a successful blending of the child in the family of the appellant  

in  USA,  we  do  not  see  as  to  how  the  appellant  could  be  

understood to be disqualified or disentitled to the relief(s) sought  

by her in the proceedings in question.  It is our considered view  

that having regard to the totality of the facts of the case the  

proposed adoption would be beneficial  to the child apart from

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being  consistent  with  the  legal  entitlement  of  the  foreign  

adoptive parent.  If the above is the net result of the discussions  

that  have  preceded,  the  Court  must  lean  in  favour  of  the  

proposed adoption.  We, therefore, set aside the orders dated  

17.09.2010 in Guardianship Case No. 2 of 2010 passed by the  

learned Trial Court and the order dated 09.07.2012 in FAO No.  

425 of 2010 passed by the High Court of Delhi and appoint the  

appellant as the legal guardian of the minor female child Tina  

and grant permission to the appellant to take the child to USA.  

In view of the provisions of Section 41(3) of the JJ  Act and to  

avoid any further delay in the matter which would be caused if  

we  were  to  remand  the  aforesaid  aspect  of  the  case  to  the  

learned Trial Court, only on the ground that the same did not  

receive  consideration  of  the  learned  Court,  we  deem  it  

appropriate  to  pass  necessary  orders  giving  the  child  Tina  in  

adoption  to  the  appellant.   The  CARA  will  now  issue  the  

necessary conformity certificate as contemplated under clause  

34(4) of the Guidelines of 2011.  The appeal consequently shall  

stand allowed in the above terms.

...…………………………J. [P. SATHASIVAM]

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.........……………………J. [RANJAN GOGOI]

                                           .........……………………J. [V. GOPALA GOWDA]

New Delhi, February 08,  2013.