CIA 3

FAMILY LAW II

CASE ANALYSIS:

LAXMIKANT PANDEY V. UNION OF INDIA

 “Every child has a right to love and be loved and to grow up in an atmosphere of love and
affection and of moral and material security and this is possible only if the child is brought
up in a family.”1

INTRODUCTION

Adoption has been practised in India for many years. Because Hinduism is India's most widely
practised religion, epics and historical documents have produced lists of saints and royals who
have been adopted and who have not been adopted. The Ramayana and Mahabharata are two
of Hinduism's most famous epics that contain references to adoption. In the past, when there
was a scarcity of male progeny, families would adopt a male kid and name him as a legal
beneficiary. Children are vital in Hindu tradition, and a departed parent's spirit can easily reach
salvation if an individual has a child to light the memorial service fire, and salvation can be
gained through children who bring tribe love. This case is also an adoption case which has laid
down certain rules and procedures that should be followed at the time of a foreigner adopting a
Indian child. 2

An attorney, Lakshmi Kant Pandey, submitted a letter protesting about the misdeeds of social
organisations and welfare agencies engaged in the business of selling Indian children to foreign
parents. His letter was based on an empirical examination conducted by The Mail, a foreign
publication. Indian children are subjected to long treks to foreign nations under the guise of
adoption and then placed in Shelter and Relief homes. They eventually devolve into prostitutes
and beggars. The court treated the letter as a writ petition, and on September 1, 1982, it issued
a notice to the Government of India, the Indian Council of Child Welfare, and the Indian
Council of Social Welfare to appear in response to the writ petition and assist the court in
laying down the norms and principles that should be followed in determining whether a child
should be adopted by foreign parents, and if so, the procedure to be followed to ensure the
child's maximum welfare.

FACTS

1
Laxshmi Kant Pandey v. Union of India, 1984 AIR 469.

2
Case summary: Laxmi Kant Pandey vs. Union of India. LawLex.Org. (2020, June 23). Retrieved April 14, 2022,
from https://lawlex.org/lex-bulletin/case-summary-laxmi-kant-pandey-vs-union-of-india/23662
The letter submitted by Lakshmi Kant Pandey depicting the misbehaviors committed by
various willful associations and social associations occupied with crafted by between country
reception was considered a writ petition by the Court, and the court requested the Government
of India, the Indian Council of Social Welfare, and the Indian Council of Child Welfare to
assist the court in establishing the standards and standards that should be continued in deciding
whether a child ought to be sent to a child welfare institution. On September 30, 1982, the
Indian Council of Social Welfare gave its report to the court, which included many proposals
and ideas for consideration.3

Numerous willful associations and social government assistance offices communicated their
longing to take an interest in the knowledge about the court and wished to introduce important
material under the watchful eye of the court. A portion of the associations were-Barnen
Framfoer Allt Adoptioner (Swedish association), the S.O.S Children's Villages of India. The
court on 12th October 1982, gave a request permitting them to intercede and make their entries
to the court and the writ appeal was suspended to ninth November 1982. The court guided the
government to accumulate the expected data and outfit the names of any Institutions or
different associations aside from the Indian Council of Social Welfare and the Indian Council
of Child Welfare, which are occupied with offering Indian youngsters to unfamiliar guardians
for a session before the following hearing.

On 9th November 1982, the court allowed eight indicated foundations and associations to
document affirmations or articulations containing essential data in regards to the reception of
Indian youngsters by unfamiliar guardians prior to 27th November, 1982. The court gave a
notification of writ request to the State of West Bengal requesting that it record its assertion or
affirmation prior to 9th November, 1982. Likewise, the Court coordinated the Superintendent
of Tees Hazari Courts to deliver the quarterly reports regarding the orders made under the
Guardians and Wards Act, 1890 entrusting the care of Indian youngsters to unfamiliar
guardians during the time of five years preceding 1st October 1982. The knowing about the
writ appeal was dismissed to 1st December, 1982.

Issues

3
Probono India. (n.d.). Retrieved April 16, 2022, from
https://www.probono-india.in/Indian-Society/Paper/398_Arsha%20Sharma.docx
 1) Whether there should be any laws for laying down the rules and procedure for inter-
country adoption?
2) Whether the current non-existence of law violating any articles of the Constitution?

Laws

1) Guardians and Wards Act, 1890

The Guardians and Wards Act of 1890 establishes the rights and responsibilities of a
ward's guardian. The provisions of Section 8 of the Guardians and Wards Act, 1890
were at issue in Lakshmi Kant Pandey vs. Union of India. It indicates that the wellbeing
of the kid should be the primary motivation for placing the child for adoption. The
Court had to evaluate the provisions of the Guardians and Wards Act because there is
no formal statute in India related to the adoption of Indian children by foreign parents
(8 of 1890). The Guardians and Wards Act of 1890 establishes the normative and
procedural safeguards that must be followed when children are adopted.
2) Article 14 and 15, Indian Constitution, 1950.
Article 14 stipulates that the state shall not deny equality of law and equal protection of
the laws to any of its citizens. Clause (3) of Article 15 was brought to light in the case
of Lakshmi Kant Pandey vs. Union of India. According to Article 15(3), the state has
the authority to provide special provisions, including for minors.
3) Article 39, Indian Constitution, 1950.
According to Article 39 of the Indian Constitution, the state is responsible for ensuring
that the judicial system offers justice on an equal footing and, in particular, free legal
assistance. Justice Bhagwati highlighted clauses (e) and (f) of Article 39 in this case,
which states that the state shall direct its policy towards ensuring, among other things,
that children of tender age are not abused and citizens are not forced to enter vocations
unsuitable for their ages and strength. They should be given ample opportunity to
mature in a healthy manner. Adoption of children would provide them with a safe and
nurturing environment in which to continue to develop.
4) Central Adoption and Resource Agency (CARA) guidelines.

Analysis

The Supreme Court of India issued recommendations and rules in processing adoptions to
foreign parents under the Guardian and Wards Act, 1890, because we do not have a uniform
adoption statute. The Supreme Court established the normative and procedural safeguards that
must be followed when an Indian kid is placed for adoption with a foreign family. The
Supreme Court ruled that any adoption that is made in contravention of or in non-compliance
with the directives set forth in this ruling will be considered unlawful, and the individual
involved will face severe consequences, including prosecution. It should not be necessary to go
through the Juvenile Court, the Social Welfare Department, or the Collector to obtain a release
order declaring the child free for adoption when a child is relinquished by its biological parents
or an unwed mother under a "Deed of Relinquishment" executed by the biological parents or
the unwed mother. It would be sufficient to present the "Deed of Relinquishment" to the court
hearing the application for the appointment of a foreigner as the child's guardian.

The recognised placement agency processing a foreigner's application to be appointed guardian

of a child with the goal of eventual adoption should be entitled to recover from the foreigner
the costs incurred in preparing, filing, and prosecuting the application in court, including legal
expenses, administrative expenses, preparation of the child study report, preparation of medical
and I.Q.Reports, passport and visa expenses, and conveyance expenses, among other things.
This rule is in place to ensure that adoption agencies do not sell Indian children in international
markets for profit.

Even youngsters between the ages of three and seven can be adopted internationally. However,
it is advised that the wishes of children above the age of seven years be ascertained by a
professional before they are given. A child under the care of a welfare or social agency in one
state can also be transported to another state for adoption 4. Within two years after the kid's
arrival in the foreign country, the youngster shall be adopted. Such information, as well as a
recent photograph of the child, should be provided to the court and the social or welfare
organisation in India that is handling their case. In addition, the child's progress report should
be submitted quarterly for the first two years and half-yearly for the next three. These are the
rules and guidelines that must be followed when giving a kid for inter-country adoption.

Conclusion

Justice Bhagwati's decision in Lakshmi Kant Pandey vs. Union of India attempts to protect
children's wellbeing by providing them with a welcoming environment in which they can be
cherished. If the child is to be adopted, the first goal should be to make sure that the child is
adopted in his or her home nation. Inter-country adoption is the next best option if the kid
cannot be placed with a suitable family in his or her own country. Certain protections and

4
AIR 1983, Bombay 242
procedures have been mentioned in the ruling in order to protect the youngster against
exploitation and human trafficking. The decision intends to protect children from heinous acts
perpetrated under the cover of inter-country adoption. People in India are hesitant to adopt
children because they do not want to raise someone else's child, hence inter-country adoption is
seen as a way to safeguard the welfare of children. As a result, the majority of the children are
abandoned and grow up to be poor, beggars, criminals, or prostitutes. As a result, inter-country
adoption assures the safety and well-being of children.