1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 108/2009 Mrs.Jenifer Edgell Haynes, Lawful permanent resident of United States and not an Indian citizen , Age-27 years, Residing presently at C/o Sister Adores, Ashraya,St.Antony Road, Plot no.243, Sevadhan Building, 2nd Floor, Chembur, Bombay -400 071 Petitioner Vs. 1] The Union of India through The Principal Secretary for Home Ministry, of Home Affairs, having their office at Jeserber House, 26 Mansingh Road, New Delhi, to be served through the Govt.Pleader (Union of India/ASG) Western Suburb of India , having their office at Aaikar Bhavan, Bombay -400021 2] The Americans for International Aid and Adoption (AIAA) , having their office at 2151, Livenols, STE 200, TROY, MI 48083 ,USA ,having their Telephone No. 2483621207 and their e-mail ID as info@AIaaadopt , org. 3] Mrs.Clarice D’Souza , Trustee of Kuan-Yin Charity Turst, 91 Advent 12-A ,General Bhonsle Marg, Bombay- 400021, And now having her address @ Silver Mansion,L.J.2nd 2 Cruse Road, Mahim,Mumbai -400 016 4] The Central Adoption Resources Authority (CARA) through its Chair Person, Having their office at Ministry of Women and Child Development, West Block 8, Wing 2, 2nd Floor,R.K.Puram, New Delhi -110 066 (India) Respondents Mr.P.M.Havnur for the petitioner Mr.D.J.Khambatta ,Additional Solicitor General with Mr.H.V.Mehta , Mr.K.J. Kandpile for Res.no.1& 4. Mr.G.M.Coelho for Res.2 & 3 CORAM: F.I.REBELLO AND MRS.MRIDULA BHATKAR, JJ. DATE :12th APRIL,2010 J U D G M E N T (Per Mrs.Mridula Bhatkar,J.) 1] Rule. Heard forthwith. The petitioner an Indian citizen though was adopted twenty years back by a foreigner couple from U.S.A.. The petitioner was born on 29/9/1981 was abandoned by her biological mother . She was brought up by Kuan-Yin Charitable Trust and respondent no.3 a 3 trustee of the said trust has moved the adoption proceedings alongwith respondent no.2 American International Aid and Adoption (AIAA) . On their undertakings, Foreign Adoption Petition No.269/1989 was allowed on 15/22 November,1989 . The petitioner was adopted by George Edward Hancox and Mrs.Hancox . At the time of adoption the petitioner was 8 years old. In December, 1989 she was taken to the United States and started residing with her adoptive parents. However, Mr.and Mrs. Hancox disrupted the adoption due to their disability to manage the petitioner’s behaviour. The parental rights were surrendered to respondent no.1 A.I.A.A. and AIAA placed the petitioner with Michigan foster family , Blaine and Janelle Edgell . Her adoption was finalised in favour of Edgell by Michigan Court in the year 1992 . [The papers of the citizenship were processed in 1992 , however,the petitioner was not given citizenship till today though she has been residing permanently in U.S.A. without any interruption since 1989 till July, 4 2008]. Her second parents also disrupted the adoption . 2] She was thereafter brought up in a foster home. The petitioner was convicted twice on drug charges in the year 2001. In 2002 she married to Justin Ashley Haynes an American national in the State of Michigan. Out of this wedlock she gave birth to one son and one daughter in 2003 and 2004 respectively. However, she was convicted second time for unlawful possession of cocaine. Her matter was heard by the Board of Immigration ,but the Immigration Judge dismissed the appeals and she was found a native and citizen of India ,therefore she was deported from U.S. to India (Mumbai) on 1/7/2008. It is contended that at the international airport ,Mumbai travel documents of the petitioner were snatched away and she was left without shelter, food, clothing and family. The petitioner being aggrieved with the decision taken by respondent no.2, AIAA respondent no.3, respondent no.1 Union of 5 India and respondent no.4 , has filed this petition for damages against the respondents praying for restoration of her status as permanent resident in U.S. alongwith her two American minor children and husband. She has also sought relief that the names of her biological parents are to be disclosed to her and she should be provided shelter, food and money at the State expenses as her departation was wrongly accepted by the Indian Government. 3] We heard learned counsel of the petitioner extensively, so also the Additional Solicitor General Mr. Khambatta for respondent no.1 and respondent no. 4. Respondent nos.2 and 3 are represented by Mr.G.M.Coelho. The submissions of Mr.Havnur,learned counsel for the petitioner are mainly based on the ratio laid down in series of judgments of Lakshmi Kant Pandey Vs.Union of India reported in (1984) 2 SCC 244, 1985(Supp)SCC 701, (1987) 1 SCC 66, (1991) 4, SCC 33.He has submitted that the petitioner was given in 6 adoption by the order of this Court dated 15/22 November, 1989 .The petitioner was minor and it was the responsibility of AIAA to process the papers of citizenship of the petitioner and see that she will get the citizenship of United States. He has submitted that respondent no.3 and respondent no.2 AIAA were negligent,careless and did not bother to take proper care of the adopted children and by misrepresentation AIAA has in fact misled and played fraud upon this Court . He argued that the petitioner was physically and sexually abused by her American parents and instead of keeping her in foster care Center she ought to have been sent back to India by AIAA when her foster parents disrupted the adoption and abandoned the child. He has submitted that due to deportation the petitioner is forcibly parted from her family especially her two children who are minor and her case needs humanitarian appreciation. Learned counsel demanded that the case is to be considered as a representative case of the inter-country adoption who ultimately land 7 up in such a pathetic and problematic situation. He demanded that the petitioner claims reliefs of damages and her restoration in U.S.alongwith her family members and so also restrictions are to be imposed in the functioning of AIAA. 4] Learned Additional Solicitor General Mr.Khambatta appearing for respondent no.1 relied upon the affidavit filed by Jagnnath Pati,Deputy Director, Central Adoption Resource Authority (CARA) . In the affidavit it is contended that respondent no.4 issues no objection certificate after examining the documents, in case of inter country adoptive parents. CARA,respondent no.4, also collects home study reports of prospective adoptive parents. The procedure of inter country adoption has been stream lined as per the guidelines and the directions laid down by the Supreme Court in Lakshmi Kant Pandey’s case are referred and relied in the affidavit . He further argued from time to time guide lines for adoption from India were revised and 8 reformulated. The present guidelines which govern the inter country adoption provide adequate safeguards to ensure welfare of the child. It was pointed out that CARA was not in existence when the adoption of the petitioner took place in 1989 as CARA came into existence on 28/6/1990 and so CARA to that effect is not responsible for any lapses if there be any in this case and is not the competent authority to decide such matter. Learned counsel Mr.Khambatta further submitted that when adoption of the petitioner was disrupted AIAA took legal custody of the petitioner and brought her to Michigan and placed her in a foster home. Minister of Home Affairs has not issued any travel documents for the deportation of the petitioner to India. However, the Consulate General of India after ascertaining the nationality status of the petitioner as an Indian,issued her emergency certificate and subsequently she was deported to India. It is more an issue related to child protection service where USA government is involved and no particular agency 9 alone . It is further submitted that respondent no.4 CARA has earlier contacted the central authority of U.S.A.on adoption of the petitioner. The unfortunate petitioner was not given citizenship in USA before she ceased to be a minor. 5] Learned counsel Mr.Coelho for respondent nos.2 and 3,submitted that respondent no.3 is the founder member of Indian Association for the Promotion of Adoption. Respondent no.3 today is 85 years old lady. . She has filed her affidavit contending that respondent no.3 carried out all the undertakings in respect of the adoption process of the petitioner. She denied all the allegations that the children sent in adoption to the foreign countries are traumatised and they had any psychological set back. She has contended that the petitioner had met her in November, 2008 alongwith her lawyer and wanted her to disclose the whereabouts of her biological mother which respondent no.3 declined as it would have been in breach of trust of 10 Jenifer’s mother and those documents are surrendered and have been filed before this Court. 6] The issue revolves around the citizenship of the petitioner .To grant citizenship of U.S. Is beyond the jurisdiction and scope of this Court. The relief sought by the petitioner that she should be restored back to U.S.alongwith her family in U.S.cannot be granted by this Court . The deportation to India after a long stay of 20 years in U.S. no doubt has led to severance of the family ties and psychological trauma to the petitioner. . We are aware that the petitioner was 8 years old when she was sent to U.S. to her adoptive parents and she was dislocated time to time which might have further resulted in her problematic behaviour and ultimately landed up in drug crimes and was convicted. No doubt, within 10 years of her stay till she attained majority respondent no.1 ought to have made efforts for her citizenship. We ,however,find that in fact her papers for U.S. citizenship were submitted, however,due to 11 disruption in adoption ,it appears not to have been pursued. Therefore, her position remained as an Indian citizen holding Indian passport. 7] The other question raised by the learned counsel for the petitioner is about the non compliance of the undertaking given by respondent nos.2 and 3 before this Court at the time of adoption. Whether failure in obtaining the citizenship for the petitioner will amount to non compliance of the undertaking given before the High Court by respondent nos.2 and 3 is the question for our consideration . In the case of Lakshmi Kant Pandey Vs. Union of India , reported in 1985(Supp) Supreme Court Cases 701 the Apex Court has laid down guidelines to streamline the process of adoption so also the functioning of N.G.Os. working in this field. It is not always possible for the Court at the time of adoption to foresee each and every eventuality which may create problem in the life of the child in future.In Lakshi Kant Pandey’s case the 12 Supreme Court has observed that - [A] “It might therefore be safer to take the bond from the representative of the foreign child or social welfare agency in India so that if the condition of the bond is violate,the court can proceed to enforce the bond against such representative who would be an Indian national. There is also another alternative which may be adopted by the court. The court may take the bond from the social or child welfare agency which has processed the application and such social or child welfare agency may in its turn take a corresponding bond from the sponsoring social or child welfare agency in the foreign country. “ [B] “Some difficulty was pointed out to us that though ordinarily it should be possible to go through the procedure for adoption within two years, there may be instances where the procedure may take longer and in that event,unless there is a relaxing power , the failure or inability of the foreigner to complete the adoption process within two years would result in breach of the condition of the bond and the bond would be liable to be forfeited. We appreciate that this difficulty may arise in some exceptional cases and we must therefore provide for such a situation. We would direct that where it is not possible for the foreigner to complete the adoption process within two years an application should be made to the court for extension of time for making the adoption and the court may grant appropriate extension of time.” 13 8] The inter- country adoption procedure at the relevant time did not include obtaining the citizenship of the foreign country for the adopted child though now it is so. If the child is uprooted from his own country then it is necessary to rehabilitate him in the foreign country by obtaining citizenship. In the present case no citizenship was obtained even after she attained majority. When her adoption was disrupted by a second adoptive parents then she was kept by respondent no.2 in a foster care home in the U.S.A.. In the given facts and circumstances it would have been preferable for the respondents to bring the petitioner back to India and this fact should have been reported to the Court. However, this non-action of the respondents cannot be blamed disproportionately as they have kept the petitioner in the foster care center with a view to provide her shelter and to look after her upbring. We do appreciate the submissions of learned Solicitor General Mr.Khambatta that till today these N.G.Os. ,respondent nos.2 and 4, have worked sincerely and effectively in 14 the inter-country adoption field and many orphan children got love and care of the parents and home through these N.G.Os..The petitioner was not abandoned or disowned by respondent no.2 but she was kept in foster care center. Therefore, we are not inclined to entertain a prayer for cancelling the registration of respondent nos.2 with respondent no.4. 9] Keeping in mind this view we looked into the bond which was executed by George Edward Hancox through his constituted attorney Mrs.Clarice D’Souza , respondent no.3, at the time of adoption. In the said bond dated 55/11/1989 the petitioner’s adoptive father undertook and executed the bond of an amount of Rs.15,000/- to repatriate the said minor (present petitioner ) to India by air as and when becomes necessary for any reason to do so and the bond shall remain effective until the said minor attains the age of majority. Thus, the contents in the bond disclose that the undertaking given was in operation till the present 15 petitioner attains majority. Hence this bond cannot be of any use today and the undertaking was in respect of repatriating the petitioner by air to India. However, when Hancox family disrupted the adoption the petitioner was again adopted by Edgell family and subsequently she remained in foster care center . Hence it cannot be said that any condition in the bond is violated. 10] We have sympathy for the unfortunate plight of the petitioner who is now married to an American citizen and has given birth to two children. Only when she was deported to India she has challenged her process of adoption and blamed the respondents for not getting her U.S. citizenship. We are of the opinion that though respondent no.4 owes certain responsibilities to keep follow up in respect of citizenship of adopted children from India to avoid their identity crisis and future problems of their citizenship. . It is to be noted that the order of adoption was passed 16 by this Court in the year 1989. It is presumed that the Court has passed this order only after examination of the documents and undertakings of the parties. This Court in the circumstances cannot grant any relief as prayed for. However, on the background of these peculiar facts and considering the right of the mother to live with her minor children the issue needs humanitarian approach and we hope that as and when she applies for citizenship of U.S.that will be considered with sympathy bearing in mind that her family is in the U.S. . The respondents have agreed to help and co- operate in whatever manner they can. 11] For the aforesaid reasons, Rule dismissed. No order as to costs. (MRS.MRIDULA BHATKAR,J.) (F.I.REBELLO,J.)