1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION AND IN ITS GENERAL AND INHERENT JURISDICTION FOREIGN ADOPTION PETITION NO. 100 OF 2009 In the matter of the appointment of guardian of the person of female minor SHUBHANGI (born on 29th December, 2006) an inmate of Bal Vikas, Shishu Welfare Trust of India, Shishu Bhavan, Malad (East), Mumbai – 400 097. Carsten Friis and his ) wife Kirsten Jacobsen Friis ) both Danish Nationals, residing at ) Stourupvej 13, 8700 Horsens, Denmark, ) through their Constituted Attorney ) Prabha P. Dhimmar, Shishu Bhavan, ) Malad (East), Mumbai – 400 097. ).... Petitioners -- 2 Shri Vishal Kanade i/by Mahimtura & Co. for the Petitioners. Ms Uma Palsule, AGP for the State. Mr.O.Hareendran , representative of Indian Council of Social Welfare, -- CORAM : A.S.OKA, J. Date: 19th December 2009. JUDGMENT : This is a Petition filed under Section 41 of Juvenile Justice (Care and Protection of Children ) Act, 2000 (hereinafter referred to as “the said Act”). When this Petition appeared on the earlier date, this Court had called upon the representatives of the various Indian Placement Agencies for Inter-country adoption (RIPA) to submit their respective views about the safeguards to be provided while permitting adoption in a Petition under Section 41 of the said Act. This Court also called upon the learned counsel appearing for the Petitioner to address this Court on the question of jurisdiction to entertain an application under Section 41 of the said Act in the light of Sub-rule (5) of Rule 33 of Juvenile Justice ( Care and Protection of Children ) Rules, 2007 ( hereinafter referred to as “the said Rules” ). 2. Section 41 of the said Act of 2000 provides for an adoption of children who are orphans, abandoned or surrendered. Adoption is one of the methods of process of rehabilitation and social integration of a 3 child as provided in section 40 of the said Act. Section 41 carves out an exception to personal laws prevailing regarding adoption of children. 3. First issue to be considered is as regard the jurisdiction of the Court to pass orders under Section 41 of the said Act of 2000. Sub- rule (5) of Rule 33 of the said Rules reads thus:- “33(5) For the purposes of section 41 of the Act, “Court” implies a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the Court of the District Judge, Family Courts and City Civil Court.” 4. Rule (5) of Rule 33 of the said Rules refers to a District Court. As far as the City of Mumbai is concerned, the question is whether the City Civil Court is a District Court. Under Section 2(4) of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ), a District is defined as “the local limits of the jurisdiction of a Principal Civil Court of Original Jurisdiction ( hereinafter called a “District Court” ) and includes the local limits of the Ordinary Original Civil Jurisdiction of a High Court”. In the case of In re Anthony Fernandes & Others, [1993(1) Bombay Cases Reports 580 ], this Court held that the High Court of Bombay exercising Ordinary Original Civil jurisdiction is a deemed District Court being the Principal Civil Court of Original Jurisdiction. Therefore, as far as the City of Bombay is concerned, this Court is a District Court. 4 5. The question is whether the jurisdiction to entertain an application under Section 41 of the said Act of 2000 vests in a Family Court, City Civil Court or This Court. Section 7 of the Family Courts Act, 1984 (hereinafter referred to as “the said Act of 1984”) deals with the jurisdiction of the said Court. The section 7 of the said Act of 1984 reads thus: “7. Jurisdiction.— (1) Subject to the other provisions of this Act, a Family Court shall— (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdic- tion under such law, to be a district court, as the case may be, such subordinate civil court for the area to which the jurisdic- tion of the Family Court extends. Explanation.—The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:— (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the mar- riage to be null and void or, as the case may be, an- nulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit of proceeding for an order or injunction in cir- cumstances arising out of a marital relationship; (e) a suit of proceeding for a declaration as to the legitim- acy of any person; (f) a suit or proceeding for maintenance; (g) a suit of proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. 5 (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise— (a) the Jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for mainten- ance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment.” Clause (g) of the explanation to sub-section (1) of Section 7 of the said Act of 1984 gives jurisdiction to the Family Court to entertain a suit or pro- ceeding in relation to the guardianship of the person or the custody of, or access to, any minor. However, clause (g) does not confer jurisdiction on the Family Court to entertain and try an application for grant of permission to adopt a child. None of the clauses in the Explanation to sub-section 1 of Section 7 confer jurisdiction on the Family Court to exercise powers under Section 41 of the said Act or a jurisdiction to permit adoption of a child . Now it will be necessary to consider whether the Family Court gets juris- diction to entertain an application under section 41 of the said Act in view of clause (b) of sub-section 2 of section 7. Thus, the question is whether the said Rules can be said to be an "enactment" within the meaning of the said clause. The word " enactment" has not been defined either under the said Act or the said Rules. Section 3 (19) of the General Clauses Act, 1897 (hereinafter referred to as the said Act of 1897) defines "enactment" as un- der: “ (19) “enactment” shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, Madras or Bombay 6 Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid;” The said Act of 1897 also defines the words "regulation" and "rule" as under: “(50) “Regulation” shall mean a Regulation made by the President [under Article 240 of the Constitution and shall in- clude a Regulation made by the President under Article 243 thereof and] a Regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1935; (51) “rule” shall mean a rule made in exercise of a power conferred by any enactment, and shall include a regulation made as a rule under any enactment.” Thus, a distinction has been made between a regulation and a rule. The said Rules cannot be a "regulation" as the rule making power has been ex- ercised by the Central Government under section 68 of the said Act. The reference to an enactment in clause (b) of sub-section 2 of section 7 of the said Act of 1984 is not to a rule as distinguished from an enactment. The first part of clause (b) refers to jurisdiction conferred by the Code of Crim- inal Procedure, 1973 and the second part refers to any other enactment. A rule framed in exercise of rule making power conferred by statute will not be an enactment. Some statutes confer jurisdiction on the government or any other authority to frame regulations. Such regulations are in fact made as rules under the particular enactment. The word "regulation" is dif- ferent from a rule. The said Rules cannot be an enactment referred in clause (b).Therefore, under section 7 of the said act of 1984, jurisdiction to entertain and decide applications under section 41 of the said act has not been conferred on the family court. 7 6. Under the Bombay City Civil Court Act, 1948 the City Civil Court does not have jurisdiction to deal with matters of adoption. At this stage, it will be necessary to refer to the Letters Patent and, in particular, Clause 17 thereof. Clause 17 of the Letters Patent reads thus:- “17. Jurisdiction as to infants and lunatics :- And we do further ordain that the said High Court of Judicature at Bombay shall have the like power and authority with respect to the persons and estate of infants, idiots and lunatics, within the Bombay Presidency, as that which was vested in the said High Court immediately, before the publication of these presents.” . Under Clause 17 of the Letters Patent, this Court has jurisdiction as to infants and lunatics. On this aspect, it will be necessary to consider a decision of this Court in the matter of Manual Theodore D’Souza [2000(2) Bombay Cases Reports 244]. In the said decision, this Court had an occasion to consider the scope of Clause 17 of the Letters Patent. This Court came to the conclusion that the jurisdiction to pass an order of giving a child in adoption is vested in the District Court and/or the High Court having jurisdiction under its Letters Patent. In fact, after considering clause 17 of the Letters Patent, this Court observed that pending legislation, it will be this Court which will have a jurisdiction under the Letters Patent to give a child in adoption by way of Miscellaneous Application in the Petition for guardianship. Thus, the conclusion is that this Court exercising Ordinary Original Civil Jurisdiction has jurisdiction to entertain the applications/petitions for 8 adoption under Section 41 of the said Act of 2000. 7. Sub-rule (5) of the rule 33 provides that for the purposes of section 41 of the said Act, "Court" means a Civil Court which has jurisdiction in the matters of adoption and guardianship which may include the Court of the District Judge, Family Court and City Civil Court. There cannot be any dispute that this Court has jurisdiction in the matters of adoption and guardianship. As pointed out earlier under the said act of 1984, the Family Court does not have jurisdiction in the matters of adoption. A Family Court could have become a Court within the meaning of sub- rule 5 of rule 33 of the said Rules provided it had jurisdiction in the matters of both adoption and guardianship. But a Family Court has no jurisdiction in the matters of adoption. Therefore it cannot be treated as a Court for the purposes of sub-rule 5 of rule 33 of the said Rules. It may be contended that as the sub-rule 5 specifically refers to Family Court, there is a concurrent jurisdiction vested in this Court and a Family Court and a Family Court being subordinate to this court, applying principles analogous to section 15 of the said code, an application under section 41 of the said act ought to be filed in the Family Court. Firstly, a Family Court is not a Court under section 41 of the said Act as it does not have jurisdiction in the matters of adoption. Secondly, this Court has jurisdiction in the matters of adoption by virtue of Letters Patent. A Full Bench of the Madras High Court in the case of V. Ramamirtham, Sole Proprietor, Glorious Pictures v. Rama Film Service, 9 (AIR (38) 1951 Madras 93 ) had an occasion to consider a question as to whether Section 15 of the said Code has any application when there is a conflict between the Ordinary Original Civil Jurisdiction of the High Court and the Madras City Civil Court constituted under the Madras City Civil Court Act. Under Section 15 of the said Code, it is provided that a suit has to be instituted before the lower most Court having jurisdiction to entertain the same. The Full Bench of the Madras High Court In V. Ramamirtham’s case (supra), held that in a case where there is a conflict between the Ordinary Original Civil Jurisdiction of the High Court and the City Civil Court, Section 15 of the said Code will have no application. Therefore, section 15 of the said Code will not apply in such a case. 8. Thus, as far as the City of Bombay is concerned this Court exercising Ordinary Original Civil Jurisdiction has exclusive jurisdiction jurisdiction to entertain the applications/petitions for adoption under Section 41 of the said Act. 9. Various orders passed by this Court in such Petitions under Section 41 of the said Act filed by foreign nationals were brought to the notice of this Court by the learned counsel appearing for the Petitioner and Mr. O. Hareendran. In the said orders, an undertaking of the Petitioners has been recorded to execute a bond either personally or through their duly Constituted Attorney in India in favour of the Prothonotary and Senior Master of this Court in a particular amount to 10 repatriate the minor to India with the permission of this Court if it becomes necessary for any reason to do so . In the said orders, further undertaking of the Petitioners was recorded to submit to this Court for every three months for two years and every six months for the next three years the progress report of the said minor made by the concerned authorities in the country to which the Petitioner belongs. Such orders are being passed when Petitions for adoption under Section 41 of the said Act are filed by the foreigners. The object of passing such orders is to ensure that progress reports of the child are submitted to this Court in order to ensure that a child is treated well by adoptive parents. In such cases, where the Petitioners are foreigners, it is impossible to enforce such undertaking or such bonds. Therefore, a suggestion was made by this Court that undertaking should be filed by RIPA through which the applications are made to this Court. The undertaking should be to submit post placement reports as regards the progress of minor to this Court as also to the Central Adoption Resource Authority. The undertaking of the concerned RIPA should be to submit quarterly progress reports during the first year and thereafter, half yearly reports during the next year. The progress reports shall be signed by the authorised representative of the concerned Enlisted Foreign Adoption Agency (EFAA) .There should be also an undertaking by RIPA to submit a report to this Court regarding disruption, if any, as regards the minor and to follow the process for alternative rehabilitation at the earliest. There should be a further undertaking by the RIPA stating that the 11 agency will move this Court for an appropriate order including recall of the order of adoption so granted in case there is any breakdown or disruption. When representatives of the RIPA remained present before this Court, all of them fairly accepted to submit such undertakings. Accordingly, in this Petition, such undertaking has been filed on oath by the Managing Trustee of Bal Vikas Shishu Welfare Trust of India. The undertaking has been filed in the format approved by this Court. It is advisable to take such undertaking in each cases while passing orders under Section 41 of the said Act to ensure that the progress reports of the child are submitted to this Court and to ensure that the agency moves this Court immediately in case of disruption or breakdown in case of the adopted minor. It is the duty of the Registry to ascertain whether progress reports are filed in this Court as per the undertaking and to bring it to the notice of the Court in case, such reports are not filed. The Prothonotary and Senior Master will issue necessary directions in that behalf to the concerned officers. It is obvious that in such cases, even the Central Adoption Resource Authority is duty bound to move this Court. 10. The Foreign Adoption Petition is allowed subject to what is observed above by signing a separate Judge’s Order. (A.S.OKA,J)