IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.09. 2010 CORAM:- Hon'ble Mr. Justice R. SUDHAKAR Writ Petition No.14880 of 2010 1. Mr.Frank M.Costanzo 2. Mrs.Deborah L.Connelly .. Petitioners Vs The Regional Passport Officer, Government of India, Ministry of External Affairs, Regiional Passport Office, Shastri Bhavan, No.26, Haddows Road, Chennai.6. .. Respondent Prayer: The Writ Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondent to issue Passport to the petitioners' minor son, master Praveen Kumar within a short framework of time in respect of the application dated 27.01.2008 already submitted. For Petitioners : Miss. M.B.Dominique For respondent : Mr.J.Ravindran (Asst.Solicitor General) O R D E R This writ has been filed seeking for a mandamus to direct the respondent to issue Passport to the petitioners' minor son, Master Praveen Kumar. 2. Minor Praveen Kumar was born on 17.01.2007 to Kaliaperumal and Valarmathi. He was given in adoption to the petitioners by a deed of Adoption dated 26.07.2007. The petitioners thereafter filed G.O.P.NO. 225 of 2007 under Sections 7 and 10 of the Guardians and Wards Act 1980 before Family Court at Puducherry to appoint them as guardians of the male child Praveen Kumar. The respondents therein, who are the biological parents, recorded an https://hcservices.ecourts.gov.in/hcservices/ endorsement of 'no objection' and the Court after satisfying itself about the genuineness of the adoption and the home-study report of the petitioners, appointed the petitioners as guardians and granted custody of the minor child to the petitioners. This order was passed by the competent Court on 28.9.2007. 3. The petitioners, thereafter, filed G.O.P.No. 309 of 2007 under Section 17 read with Section 26 of the Guardians and Wards Act before the Family Court at Puducherry, seeking permission to take their adopted son, minor Praveen Kumar to United States of America and to eventually adopt the child as per the laws of Maryland, USA. The Union of India, Social Welfare Department was arrayed as respondent and represented by the Government Pleader. The first petitioner was examined as P.W.1 and Exhibits P.1 to P..6 were marked. The respondent did not let in oral or documentary evidence before the Family Court. Based on the endorsement of 'no objection' made by the Government Pleader and after holding that all the legal requirements have been complied with, the petition was allowed on 30.12.2007. The petitioners were permitted to take their adopted son to United States of America. The documents that are submitted before the Family Court as EXs. P.1 to P6 are as follows: 1. 26.06.2007: Guardianship Plans issued by Adoption Service Information Agency to the petitioners. 2. 20.06.2007:Permission to adoption issued by Adoption Service Information Agency to the petitioners. 3. 23.06.2007: Home Study Application made to the Adoption Service Information Agency 4. 26.07.2007: Deed of adoption executed between the petitioners and the biological parents of the minor. 5. 28.09.2007: Decree in G.O.P.225/2007 passed by this Court. 6. 28.09.2007: Order in G.o.P.225/2007 passed by this Court." 4. The decree granted in G.O.P.No. 309 of 2007 runs as follows: i. that the petition be and the same is hereby allowed; https://hcservices.ecourts.gov.in/hcservices/ ii. that the petitioners are hereby permitted to take their adopted son Praveen Kumar to United States of America to eventually adopt the child as per the laws of Maryland and U.S.A. 5. Thereafter, in January 2008, the petitioners submitted an application to the Regional Passport Office, Chennai for issue of passport to their minor son, Praveen Kumar so as to enable the minor to travel along with the petitioners to United States of America and to complete the formalities for adoption as per the law applicable in America. The application for issue of Passport was pending in the Passport office for quite sometime and then returned on 08.04.2009, stating as follows: " Please refer to your representation for issue of passport to Master.Praveen Kumar. It is hereby informed that the adoption of Master Praveen Kumar is not in accordance with the extend procedures laid down by the Government of India. The procedures/guidelines were framed arising out of Supreme Court Judgment. Hence, the Ministry of External Affairs, New Delhi is of the opinion that the State Government and the Family Court cannot override the procedures prescribed by the Government of India for inter-country adoption. Hence, you are advised to furnish No Objection Certificate from Central Adoption Resources Agency (CARA) Your application for passport is returned herewith." 6. Since a onerous and invalid condition was imposed by the respondent for the issuance of passport to the petitioners' adopted son, the present writ petition has been filed for a mandamus to direct the respondent Regional Passport Officer to issue the passport in the name of the petitioners' adopted minor son Master Praveen Kumar based on the application dated 27.01.2008. 7. On 13.07.2010, the learned Assistant Solicitor General took notice on behalf of the respondent. By consent, the writ petition is taken up for final disposal. The respondent has filed a counter, reiterating the stand taken in the impugned order which is based on the Passport Manual. The manual prescribes guidelines for issue of passport in the case of adoption of an Indian child. 8. The contention of the petitioners' counsel is that the adoption in this case is from biological parents and therefore, the question of getting ‘no objection’ from the Central Adoption Resource Agency ( hereinafter called CARA) will not apply to the https://hcservices.ecourts.gov.in/hcservices/ facts of the present case. To cut short the issue, the learned counsel relied on the decision of the Supreme Court in Lakshmi kant Pandey VS Union of India reported in A.I.R.1984 Supreme Court 469 and repelled the respondent's stand. In that case, the Supreme Court considered the issue of adoption in extenso and formulated certain guidelines. Based on the direction issued by the Apex Court, the Government of India issued certain Guidelines. For the purpose of adoption, children were classified into three classes as follows: i. The children who are orphans and destitute or whose biological parents cannot be traced; ii. Children whose biological parents are traceable but have relinquished or surrendered them for adoption; and iii. Children living with their biological parents. 9. Insofar as the third category is concerned, which is the case on hand, the Apex Court in paragraph 11 has held as follows: "We may make it clear at the outset that we are not concerned here with cases of adoption of children living with their biological parents, for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents. It is only in those cases where the children sought to be taken in adoption are destitute or abandoned and are living in social or child welfare centres that it is necessary to consider what normative and procedural safeguards should be forged for protecting their interest and promoting their welfare." 10. The Guidelines issued by the Government consequent to the direction of the apex Court would not apply to the voluntary adoption from the biological parents. This view was reiterated by the Apex Court in Anokha (Smt) VS State of Rajasthan and others reported in (2004) 1 Supreme Court Cases 382, wherein it has been clearly held that in the case of adoption from biological parents, the Guidelines do not apply. In paragraph 16, it has been held as follows: " In the case before us although the Guidelines do not apply, respondents 2 and 3 had produced evidence which fulfilled all the particulars required of a Home Study Report. The appellant has repeatedly affirmed her https://hcservices.ecourts.gov.in/hcservices/ closeness to respondents 2 and 3 and her conviction that they would nourish and care for baby Alka as if she was their own. Respondents 2 and 3 have produced sufficient evidence to justify their suitability to be adoptive parents. There was a judicially directed scrutiny by a local government agency in Venice. The enquiry report has resulted in a judgment passed by the Court at Venice, Italy. That judgment can be accepted by this Court under Section 13 of the Code of Civil Procedure, particularly, when the respondents have filed the investigation report and other material on the basis of which the judgment was delivered." 11. It has been stated very clearly that the Guidelines and Directives given by the Apex Court in its various decisions do not apply in respect of third category of children, namely children given in adoption by their biological parents. It is clearly stated that only when the child is taken in adoption from a placement authority, the 'no objection certificate' from Central Adoption Resource Agency (CARA) Ministry of Welfare is needed. The object of forming Central Adoption Resource Agency (CARA) is to eliminate the allegations of malpractices by placement agencies and to avoid trafficking of children. This situation does not arise in the case as is revealed by facts set out above. 12. In the instant case, the biological parents have given their 'no objection' to adopt their child and that has been recorded by the competent Family Court. The Court of competent jurisdiction has granted permission to the adopted parents- petitioners herein, to take the child abroad and that order was passed after hearing the Union of India, the respondent in G.O.P.No. 309 of 2007. The said order passed by the competent Court is not challenged by the Union of India or by any other authority. In such view of the matter, the plea of the respondent that 'no objection certificate' should be obtained from Central Adoption Resource Agency (CARA) does not hold water. It will run counter to the decision of the Apex Court cited above. Further, the Guidelines issued by Central Adoption Resource Agency (CARA) does not specify that 'no objection' has to be issued by the said authority in respect of adoption from biological parents. Hence, the respondent's stand has no basis in law. 13. A plea was taken by the Assistant Solicitor General relying upon Chapter X paragraph 1 of the Passport Manual which prescribes the Guidelines for adoption of Indian Children and states that 'no objection certificate' from Central Adoption Resource Agency (CARA) should be obtained. The said plea taken by the Assistant Solicitor General has to be rejected for the following reasons: https://hcservices.ecourts.gov.in/hcservices/ (i). When the Central Adoption Resource Agency (CARA) does not impose such condition in respect of adoption from biological parents, the passport authority cannot insist on the same. It has no legal basis; (ii). The guidelines issued by the passport authorities has no binding force insofar as the petitioners are concerned. It is without authority of law and there is no legal basis for imposing such condition. (iii). In any event, insisting no objection from Central Adoption Resource Agency (CARA) for issue of passport will run counter to the decisions of the Apex Court cited above. 14 . One other plea that was taken by the Assistant Solicitor General is that before granting inter-country adoption, the possibility for adoption within the country should be considered. He placed reliance on the judgment in John Clements and another VS State of A.P. And others reported in(2004) 13 Supreme Court Cases 400. On going through the said decision, it is clear that the same will not apply to the facts of the present case. In that case, the Hon'ble Supreme Court directed the authorities to search for an Indian Family if they are willing to adopt the child by way of adoption and if no suitable Indian family come forward to adopt the child, the authorities may consider giving the child on an inter-country adoption. In that case, the child obviously was with a placement agency and not in the custody of the biological parents as is evident from the direction issued and therefore, the said decision will not apply to the facts of the present case. 15. The impugned letter returning the passport application, imposing a condition, which does not find place in the regulation, namely, Central Adoption Resource Agency (CARA), is therefore, bad in law and contrary to the decisions of the Apex Court cited supra. Since the petitioners have already established before the competent Court that they are the adopted parents of the minor child, they are entitled to get a passport for their adopted son Master Praveen Kumar. The respondent is bound to issue the passport without any further delay. 16. The learned counsel for the petitioners pleaded that the petitioners, a legal practitioner in United States of America, is in India for very long time. Petitioners may be permitted to resubmit the application for issue of passport to Master Praveen Kumar. The petitioners are entitled to resubmit the application to the respondent for issuance of passport for their minor son, https://hcservices.ecourts.gov.in/hcservices/ Master Praveen Kumar and the learned Assistant Solicitor General stated that the same will be processed expeditiously. 17. In the result, the Writ Petition is allowed as prayed for. However, considering the facts and circumstances of the case, there shall be no order as to costs. If the petitioners re-submit the application for the issuance of passport for their adopted son, Master Praveen Kumar, the respondent-authority is directed to issue the same forthwith. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. PAL To The Regional Passport Officer, Government of India, Ministry of External Affairs, Regiional Passport Office, Shastri Bhavan,No.26, Haddows Road, Chennai.6. 8 ccs to Miss. M.B. Dominique, Advocate, Sr. 68655 1 cc to Mr.J. Ravindran, Advocate, Sr. 68711 W.P. No.14880 of 2010 GG (CO) kk 5/10 https://hcservices.ecourts.gov.in/hcservices/