upa 1 caw2951-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2951 OF 2010 IN WRIT PETITION NO. 4571 OF 2010 Kugan Soobramani and another ).. Petitioners Versus The Central Adoption Resource Agency and another ).. Respondents Ms. Shirin Merchant for the Petioners. Mr. Vinod Joshi for Respondent No.1. Mr. J.K. Bhatia and Ms. Ketki Dave for Respondent No.2. Mr. D.J. Khambatta, Additional Solicitor General, Amicus Curiae. Mrs.Jyoti Pawar, Additional Government Pleader, a/w Mr. C.R. Sonawane, Assistant Government Pleader, for the State. Mr. O. Hareendran, Scrutiny Officer, for Indian Council of Social Welfare present. CORAM : MOHIT S. SHAH, C.J. AND DR. D.Y. CHANDRACHUD,, J. FRIDAY, NOVEMBER 26, 2010 P. C. : This is an application filed by the persons who have applied for adoption of special needs children. By an order dated 8 October 2010, this Court had directed CARA to consider pending proposals for children, for the sake of convenience called pipeline cases, within two days of the date of order after considering all the relevant material including CWC declaration, ACA clearance and report of the committee formed by Department of Women & Child Welfare, Government of Maharashtra. It was specifically directed that CARA shall consider the upa 2 caw2951-10 question of issuance of NOC by 30 October 2010. Grievance in the present application is that CARA has not taken any decision in the matter. 2. At the hearing of this application, learned counsel for the applicant as well as Mr.Khambatta, learned Additional Solicitor General, have invited our attention to the fact that all these 18 children are special needs children and that therefore their proposals need to be considered with utmost expedition. Both learned counsel have also invited our attention to the Guidelines for Adoption from India 2006 issued by Central Adoption Research Authority (CARA) in the Ministry of Social Justice &Empowerment, Government of India and particularly to Chapter IV laying down the procedure for inter-country adoption. All the steps indicated in the said chapter contemplate specific time limits for various agencies to take the necessary steps as contemplated by the guidelines. For instance, when an application is made to Adoption Co- ordinating Agency (ACA), ACA will find a suitable Indian prospective parent within 30 days, failing which it will issue clearance certificate for inter-country adoption. In fact, the guidelines further provide that ACA will issue clearance for inter-country adoption within 10 days in case of special needs children or child above six years. The fact that the guidelines treat the time limits as mandatory and peremptory is evident from the provisions in the guidelines that 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 and that if no clearance is given on 31st day, the clearance of ACA will be assumed unless ACA has sought clarification within the stipulated period of 30 days. It is also provided that NRI parent(s) (at least one parent) holding Indian Passport will be exempted from ACA clearance. upa 3 caw2951-10 3. In view of the above, there can be no question of ACA withholding clearance or CARA refusing to act on the proposal for inter- country adoption on the ground of non-availability of clearance of ACA. 4. In spite of the fact that in all these pipe line cases, wherever ACA clearance is required, the concerned applicants have already produced ACA clearance before CARA, CARA has not considered the proposals on certain grounds, one of them being “non acceptance letters of Indian parents not available”. Similarly, another ground given by CARA is “State Committee’s specific clearance is not received”. 5. Mrs.Jyoti Pawar, learned Additional Government Pleader, states and the learned counsel for CARA does not dispute, that the State Government has already sent letter dated 22 October 2010 informing CARA that the State Government committee did not come across any major irregularities in cases of 15 children. In fact, by a subsequent letter dated 27 October 2010, the Deputy Commissioner (cd) Women & Child Development, Maharashtra State, Pune, informed CARA that it was issuing no objection certificate to the children of Preet Mandir. It was also indicated in the letter that it would be more appropriate to take decision at CARA level regarding issuing no objection certificate. 6. In other words, it would be clear, and the learned Additional Government Pleader, also states that since the matter is ultimately to be considered by the Family Court and District Court and the welfare of the children is going to be the prime consideration, State Government does not want to come in the way of issuance of no objection certificate by CARA. upa 4 caw2951-10 7. The third ground given by the learned counsel for CARA is that State Government’s reply on objections raised by Advait Foundation is awaited. 8. In view of what is already stated above, the learned Additional Government Pleader states that the State Government has requested the Commissioner, Women and Child Welfare, Pune to refer the issue raised by Advait Foundation to the Commissioner of Police, Pune. The learned Additional Solicitor General places on record a copy of the representation dated 15 October 2010 from Advait Foundation and SAKHI and having gone through the same, we find that these two NGOs have not placed any specific materials before the authorities but have only voiced apprehension about possibility of trafficking and raising doubts about the activities of Preet Mandir. 9. We also find that these NGOs have referred to the previous report of the State Government for exercising caution in giving the children in adoption to parents in foreign countries. However, thereafter the State Government has issued the aforesaid letters/NOC dated 22 October 2010 and 27 October 2010. 10. In fact, in the order dated 8 October 2010, this Court had specifically noted that the license of Preet Mandir as a recognized Indian placement agency was suspended on 15 February 2010 and that the pending investigation against Preet Mandir or its management should not come in the way of the proposals for adoption in the pipe line cases being considered. upa 5 caw2951-10 11. Having regard to the above aspects and having heard learned counsel for the petitioner, the learned Additional Solicitor General, the learned Additional Government Pleader for the State, the learned counsel for CARA and the representative of ICSW, we are of the view that the delay on the part of CARA in not issuing NOC for adopting of the children in these pipe line cases is not justified and that it has failed to act within the time limit stipulated in the order dated 8 October 2010 of this Court. In the said order, this Court had tried to impress upon all concerned the need to act quickly especially because many of these children are special needs children including children who are HIV positive, have missing limb, are hearing impaired, etc. 12. We further reiterate the directions and clarifications given in the order dated 8 October 2010 particularly in paragraphs 15 and 18 thereof. 13. For the reasons aforesaid, we allow this application and direct CARA to issue no objection certificate in all the pipe line cases within one week from today. 14. It is clarified that as and when the proposals are placed before the concerned Family Court/District Court, the proposals shall be considered by the concerned Courts appropriately. 15. Parties to act on an authenticated copy of this order. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.