SRK 1 W.P. No. 4571 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4571 OF 2010 Mr. Kugan Soobramani and another. ... Petitioners Versus The Central Adoption Resource Agency and another. ... Respondents ALONGWITH MISCELLANEOUS CRIMINAL APPLICATION NO.362 OF 2010 IN CRIMINAL WRIT PETITION NO.494 OF 2007 Central Adoption Resource Authority .. Applicant Versus Sakhee and others. .. Respondents ALONGWITH MISCELLANEOUS CRIMINAL APPLICATION NO.364 OF 2010 IN CRIMINAL WRIT PETITION NO.1945 OF 2006 Central Adoption Resource Authority .. Applicant Versus Advait Foundation and others. .. Respondents Ms. Shirin Merchant for the petitioners. Mr. Vinod Joshi for respondent No.1. Mr. J.K. Bhatia and Ms. Ketki Dave for respondent No.2. Mr. D.J. Khambata, Addl. Solicitor General - Amicus Curiae. Mr. C.R. Sonawane, Assistant Government Pleader for State. Mr. Jamshed Mistry i/by Mr. Rajeev Mirchandani in W.P. No.454 of 2007. Mr. O. Hareendran, Scrutiny Officer of ICSW present. CORAM : MOHIT S. SHAH, C.J. & SMT. R.P. SONDURBALDOTA , J. Friday, October 8, 2010 SRK 2 W.P. No. 4571 of 2010 P.C. The petitioners in writ petition No.4571 of 2010 are nationals of South Africa who are interested in adopting a minor child Heena. 2. The child was born on 30th August, 2009 and is admittedly a special need child in asmuch as she is suffering from a hearing impairment. The petitioners had approached the agency called Preet Mandir which was, at the relevant time, a Recognised Indian Placement Agency (RIPA). The Preet Mandir had forwarded the papers to Central Adoption Resource Agency (CARA) for NOC on 30th January, 2010. However, the licence of Preet Mandir as a Recognised Indian Placement Agency came to be suspended on 15th February, 2010. The licence came to be revoked on 20th May, 2010. We are informed that the said order dated 20th May, 2010 has been set aside by this Court and CARA has been directed to give fresh hearing to Preet Mandir for deciding whether the licence in favour of Preet Mandir as a Recognised Indian Placement Agency should be revoked or not. However, in the meantime, the suspension order dated 15th February, 2010 continues to remain in force. 3. It appears that prior to 15th February, 2010, Preet Mandir had sent proposals to CARA for NOC in respect of adoption of 18 children by foreign nationals. It appears that on account of the proceedings for suspension/cancellation of licence of Preet Mandir and the investigations being carried out by Central Bureau of Investigation, the proposals forwarded by Preet Mandir even prior to 15th February, 2010 were not being considered for issuance of NOC. SRK 3 W.P. No. 4571 of 2010 4. The petitioners have moved this Court contending that whatever may be the acts of commission and omission on the part of Preet Mandir, the petitioners' proposal for adoption of a minor child Heena should not be kept in the cold storage for no fault of the petitioners and more particularly, when the minor child needs to be looked after with special care as she is suffering from a hearing impairment and the minor child is still in the custody and care of Preet Mandir. 5. In view of the procedure prescribed in the Guidelines for Adoption from India, 2006 and more particularly in Chapter 5 thereof containing rules for Recognised Indian Placement Agency (IPA) and also in Chapter 4 thereof laying down the procedure for inter-country adoption, it appears that some agency will have to play the role of monitoring agency if and when the concerned child is permitted to be adopted by the orders of the District Court or /Family Court, Pune where the petitioners propose to file an application. 6. In response to the notice issued by this Court to the Indian Council of Social Welfare, (ICSW) Mr. O. Hareendran, Scrutiny Officer appears from Indian Council of Social Welfare, Mumbai today and states that basically, the role of Indian Council of Social Welfare is that of a scrutinising agency but in the peculiar facts of this case where 18 children are awaiting adoption and are in Preet Mandir, Indian Council of Social Welfare is prepared to discharge their duties as a Recognised Indian Placement Agency, both for the purposes of rendering necessary assistance to the Family Court/District Court and thereafter as a monitoring agency, in case no other Recognised Indian Placement Agency is available for monitoring to be done by RIPA. SRK 4 W.P. No. 4571 of 2010 7. We leave it open to the concerned Family Court/District Court to decide whether in future the responsibilities of Indian Council of Social Welfare should be handed over to any other Recognised Indian Placement Agency. 8. We may also note that the learned counsel for CARA has placed before us the statement indicating the progress made in processing the proposals for NOC for adoption of minor children out of which 13 proposals were received by CARA before 15th February, 2010 and 5 proposals were received after 15th February, 2010 but prior to revocation of licence. As indicated earlier, revocation of licence has been set aside by the Court with liberty to give a fresh hearing and then to take a fresh decision. 9. The learned counsel for the petitioners as well as the learned counsel for CARA submit that CARA may not issue NOC, unless CARA is directed to consider the 18 "pipeline cases" for grant of NOC including special needs children such as minor child Heena. 10. At this stage, the learned counsel for two NGOs, Sakhee and Advait Foundation who are petitioners in Criminal Writ Petition Nos. 494 of 2007 and 1945 of 2006 have submitted that great care and caution is required to be exercised by all agencies before taking any decision in the matter, more particularly in view of the report dated 18th August, 2010 of the committee appointed by the Department of Women & Child Development of Government of Maharashtra. 11. Having heard the learned counsel for the parties and also SRK 5 W.P. No. 4571 of 2010 having heard Mr. D.J. Khambatta, the learned Additional Solicitor General who has also kindly consented to act as Amicus Curiae in these matters, we find that the proposals for adoption of 18 children are not being considered on account of cloud over the licence of Preet Mandir, Pune as a Recognised Indian Placement Agency. 12. Out of these children, some of them are given special needs children, for instance, (i) minor Heena, born on 30th August, 2009, is suffering from hearing impairment, (ii) minor Kanchan, born on 12th May, 2009, is HIV +ve PCR -ve, (iii) Shivraj, born on 6th November, 2002, has a limb missing, (iv) minor Durga, born on 16th January, 2005 is underweight and having delayed milestones, and (v) minor Ayesha, born on 5th February, 2007 is having delayed milestone and speech problem. 13. While we appreciate the concern of Sakhee and Advait Foundation, we also cannot forget the following words of Gabriel Mistral, Nobel Laurate who said - "We are guilty of many errors and faults, but our worst crime is abandoning children and neglecting the foundation of life. Many of the things we need can wait, the Child cannot. Right now is the time her bones are being formed, her blood is being made and her senses are being developed. Then to her we cannot answer “Tomorrow” Her name is “Today”! SRK 6 W.P. No. 4571 of 2010 14. In view of the above, we direct CARA to consider the pending proposals for 18 children, who are for the sake of convenience, referred to as "pipeline cases" within two weeks from today 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. 15. We make it clear that we may not be treated to have expressed any opinion on the question whether the proposals submitted by Preet Mandir deserve or do not deserve to be accepted for the purposes of grant of NOC. We only intend that the pending proposals should not remain pending on the ground of suspension of licence of Preet Mandir as a Recognised Indian Placement Agency. Whatever further role is required to be played, Indian Council of Social Welfare has agreed to play as a Recognised Indian Placement Agency, both for the purposes of assisting the prospective adoptive parents for making the application before the concerned Family Court/District Court and for all other procedures in this behalf. 16. In case any other person or agency wishes to place any material before CARA on the question of issuance of NOC, the same shall be done by 18th October, 2010 and CARA will take decision on the question of grant of NOC by 30th October, 2010. 17. At this stage, we may note that step VI in Chapter IV of the guidelines reads as under: “Step VI) Filing of Petition in the Court SRK 7 W.P. No. 4571 of 2010 * 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.” 18. Having regard to the above procedure, even when the CBI investigation was going on, by order dated 23rd May, 2007, CARA had issued a separate certificate to Preet Mandir "recognising it for inter- country adoption for a period of six months". It, therefore, appears that the interests of justice require that for the limited purpose of enabling the petition for adoption to be filed in the competent court, the petition for adoption may be filed by the prospective adoptive parents and to enable them to do so, Preet Mandir shall produce all the original documents before the competent court. It is also clarified that we may not be treated to have expressed any opinion on the question of illegalities, irregularities or malpractices alleged to have been committed by Preet Mandir, one way or the other. Writ petition as well as the civil applications stand disposed of accordingly. CHIEF JUSTICE SMT. R.P. SONDURBALDOTA, J.