INTRODUCTION

The word 'Adopt' comes from Latin 'adoptre', to choose. To take by choice into a
relationship; especially to take voluntarily (a child from other parents) as one's own
child. Adoption is the act of legally placing a child with a parent or parents other than
those to whom they were born. It can be defined as the statutory process of
terminating a child's legal rights and duties towards the natural parents and
substituting similar rights and duties towards adoptive parents by establishing a
parent-child relationship between persons not so related by the birth of the child. For
the parentless or the abandoned child, adoption means a balanced physical and
psychological family environment and to the desirous parents, chances to become
parents and experience family growth.
Adoption is a complex social phenomenon, intimately knitted into its family law
framework and shaped by the pressures affecting the family in its local social context. It
is the mirror reflecting the changes in our family life and the efforts of family law to
address those changes. This has caused it to be variously defines; different societies, in
the same society at different times and across a range of contemporary societies.
In other words, it can be said as the judicial or administrative act that establishes a
permanent legal parent-child relationship between a minor and an adult who is not
already the minors legal parent and terminates the legal parent-child relationship
between the adoptive child and any former parent(s).
Owing the increase in accessibility of new forms of travel, cross border movement is not
the rarity it was a few decades. This fact is well illustrated by the fact that around thirty
million Non-Resident Indians reside in about 130 nations abroad.[i] One of the many
results of this is the increasing inter-cultural and multinational relationships. The
integrated unit of Family has acquired a global colour. International mobility, opening up
of borders, cross border migration and dismantling of inter cultural taboos have all the
positive traits but are fraught with a new set of risks for children caught up in cross
border situations.[ii] However, Indian law has yet to match pace with these issues. As
such, disputes resulting from such global families, especially involving inter-parental
custody battles have yet to be addressed comprehensively by the Indian legal regime.
The present paper explores the current Indian position on this issue and the future
potential in the background of the Hague Convention of 1980 on the Civil Aspects of
International Child Abduction.

WHAT IS CHILD REMOVAL

Dr Justice A.R. Lakshmanan, Judge, Supreme Court rightly opines, Statistics show that
divorce and custody cases are on the rise. The practice of international child abduction
has its roots in these inter-parental custody battles.[iii] Here, it is pivotal to understand
what exactly constitutes international child abduction.
Father from Country A, Mother from Country B residing in Country C where the
children are citizens. Many families across the globe meet this description in todays
scenario. While this merging of cultures and nationalities plays a vital role in broadening
the social horizons, it also creates unprecedented problems when troubles ensue. One
such problem is Child Removal. In simple terms, it refers to a parent taking the child
with him/her out of their country of residence so as to hamper the other parents right to

contact. Often matrimonial problems in the aforementioned families are followed by

instinctive reaction of a parent heading back to his/ her countries of origin, taking the
child with him/ her without the other parents consent. This constitutes child removal or
international child abduction.[iv]
This concept has been defined under Section 3 of the Hague Convention of 1980 on the
Civil Aspects of International Child Abduction. The section reads:

Article 3
The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other
body, either jointly or alone, under the law of the State in which the child was habitually
resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly
or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise inparticular by
operation of law or by reason of a judicial or administrative decision,or by reason of an
agreement having legal effect under the law of that State.[v]
This definition is not applicable to India, as it is not a signatory to the Hague Convention
of 1980 on the Civil Aspects of International Child Abduction. Also, no parallel legislation
has been enacted as for now to define child removal or deal with the issues it concerns.
As such, the judiciary has taken on the burden and has adhered to judicial innovation
while deciding matters on a case to case basis. However, this only works as a temporary
solution to the ever escalating problem, lacking uniformity and consistency. As such, the
need of the hour is to reach out for a more permanent and comprehensive resolution of
these issues

ADOPTION LAWS AND PROCEDURES

The prime objective of adoption is to ensure the child's well-being and personal
development. The Swiss Civil Code sets the requirements for adoption. However, the
other rules are defined by various international agreements on adoption. There are
institutions accredited by the Confederation operate as intermediaries between
adopting parents and adopted children.

REQUIREMENTS FOR ADOPTION

A married couple or an unmarried person may adopt a child provided that this is in the
child's overriding interest. One may also adopt one's spouse's child. For any type of
adoptions described above should meet certain requirements:
Couples married for 5 years or over 35;
Children's consent;
Deadline for assessing the adoption.
The jurisdiction in the field of adoptions lies with the central cantonal authority
appointed by each Canton, which acts as an intermediary contact between the parents
and the central Federal authority. Organising jurisdiction and procedure then only comes

under the Canton in question.

Persons wishing to bring a child into their home with a view to adopt, it should request
the authorization to have the child placed with them. The jurisdiction for placing a child
lies with the central authority of the place of residence of the adoptive parents.
After one year, if the placement went well, the adoption is pronounced by the
competent cantonal authority of the adoptive parent's domicile. The primary objective
of adoption isthe objective is to ensure the child's well-being andpersonal development.
The Swiss Civil Code sets the requirements for adoption. Other rules are defined by
various international

agreements on adoption. Institutions accredited by the Confederation operate as

intermediaries between adopting parents and adopted children.

ADOPTION PROCEDURE
Any adoption plan must be approved by the competent cantonal authority which carries
out social investigation and draws up a report on the parents,leading to a provisional
authorization for placement of the child.
The parents may then take the necessary steps abroad, either personally or with the
help of local institutions to advise them.
In general, such independent institutions serve as intermediaries between the child to
be adopted and its future parents.
In case of international adoptions, one must ensure that an adoption pronounced abroad
actually serves the child's overriding interest. However, the proof of consent of the
biological parents, assessment of the child's interests by the competent authorities is
essential.
The duration of the child's placement is one year, together with a guardianship order.

WHO CAN BE ADOPTED

The 2011 guidelines allow for adoption of an orphan, abandoned or surrendered child, if
declared free for adoption by the Child Welfare Committee. Such adoption must be
made following the procedure laid down in the guidelines. While any adoption, the
primary concern of the agency would be the best interests of the child. It is for this
reason that an in-country adoption is given preference over inter-country adoption. In
pursuance of this, in- country adoption is preferred over inter-country adoption. The
adoption process should be so as to not allow any profit or gain, whether financial or
otherwise.

WHO CAN ADOPT

Adoption in India is regulated by the National Adoption Agency, which released
Guidelines Governing the Adoption of Children in 2006 and revised Guidelines in

2011.The Guidelines permit parents already having children, couples who do not have
children and individuals notwithstanding his or her marital status to adopt. Additional
conditions have been imposed by Section 6 of the Guidelines. A married couple must
have at least two years standing relationship. Live-in couples cannot adopt. The
Prospective Adoptive Parents (PAPs) must have financial resources commensurate with
the practical requirements of raising a child. An unmarried male cannot adopt a girl
child. Other requirements are:
(3) To adopt a child in the age group of 0-3 years, the maximum composite age of the
PAPs should be 90 years wherein the individual age of the PAPs should not be less than
25 years and more than 50 years.
(4) To adopt children above three years of age, the maximum composite age of the PAPs
should be 105 years wherein the individual age of the PAPs should not be less than 25
years and more than 55 years.
(5) In case a single PAP desires to adopt, he or she should not be less than 30 years of
age and shall not be

above the age of 50 years. The maximum age shall be 45 years to adopt children in the
age group of 0-3 years and 50 years for adopting children above 3 years.
(7) The PAPs should have good health and should not be suffering from any contagious
or terminal disease or any such mental or physical condition, which may prevent them
from taking care of the child.
(8) Adoption of a second child is permissible only when the legal adoption of the first
child has been finalized but this is not applicable in case of siblings.

INTERNATIONAL ADOPTION
In the case of an international adoption based on the Hague Convention, an adoption
pronounced abroad is acknowledged in Switzerland through a facilitated procedure. A
wardship is also pronounced so as to provide the parents and child with support and
follow-up.
This wardship lasts for maximum 18 months.
If the Hague Convention is not applicable for the country from which adoption is made
then an adoption performed in the foreign country of residence or of origin of the
adoptive parents may be acknowledged in Switzerland and recorded in the Swiss civil
status registers.
One pronounced, the adoption ruling is notified to the Registry Offices which enter a
new record for the child.

EFFECT OF ADOPTION
In Switzerland, once the adoption has been pronounced, in most cases the adopted child
is considered as any other of his parents' children. This is called a full adoption, which
implies that there are no legal differences between an adopted child and the other
children of the adopting parents.
When an adoption has been pronounced abroad and should be acknowledged in

Switzerland because one of the parents is a Swiss national, the situation is different. If
the country of origin has ratified the Hague Convention on Protection of Children and
Cooperation in Respect of Intercountry Adoption, acknowledgement of the adoption is
facilitated. Otherwise, the rules of private international law apply.
.

The Indian Experience

As mentioned earlier, Indian is not yet a signatory to the Hague Convention of 1980 on
the Civil Aspects of International Child Abduction. As such, remedies are often sought
from the existent domestic laws. The constitutional remedy of the writ of Habeas Corpus
under Article 226 as well as Article 32 is often used by the parents against the spouse
allegedly abducting the child to India. Due to its special nature, it is often the quickest
remedy available to the parents.[vi] Further, recourse can be sought through the
provisions of the Hindu Minority and Guardianship Act 1956[vii] which has extraterritorial operation by seeking guardianship rights for their own child.[viii] Much like
the, the perspective applied while contesting of such issues in court is quite outdated,
the process being a long adversarial fight for superior rights of parties and often
ignorant of the real issue of welfare of the child. More often, the parents approach the
Indian courts for enforcement of a foreign court order of custody, mainly because they
find it easier and quicker to import a foreign court judgment to India on the basis of
alien law which has no parallel in the Indian jurisdiction.As a result, while the Indian
courts do their best in interpreting these judgments harmoniously with the Indian laws,

the results are often inconsistent and lack uniformity, thus hindering development of
private international law in India.
The ideal approach in such cases should be to consider the welfare of the child as the
paramount objective.[xi] The term welfare is an all-encompassing one.[xii] According to
Lindley LJ, the welfare of a child is not to be measured by money alone nor by physical
comfort only. The word welfare must be taken in the widest sense. The moral and
religious welfare must be considered as well as its physical well-being nor can the ties of
affection be disregarded. Fortunately, the recent judicial developments paint a positive
picture in this regard. In the case of Kulwinder Dhaliwal v. State of Punjab[xiii], which
was one such dispute dealing with inter-parental custody of the child, on a writ of
Habeas Corpus, the court respected the orders of the Ontario Superior Court of Justice
giving custody of the minors to the petitioner, and the children were directed to be
handed over to the petitioner with liberty to take them to Canada.

Indian Perspective
Although there is no general law of adoption, yet it is permitted by a statute amongst
Hindus and by custom amongst a few numerically insignificant categories of persons.
Since adoption is legal affiliation of a child, it forms the subject matter of personal law.
Muslims, Christians and Parsis have no adoption laws and have to approach court under
the Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child
under the said Act only under foster care. Once a child under foster care becomes
major, he is free to break away all his connections. Besides, such a child does not have
legal right of inheritance. Foreigners, who want to adopt Indian children have to
approach the court under the aforesaid Act. In case the court has given permission for
the child to be taken out of the country, adoption according to a foreign law, i.e., law

applicable to guardian takes place outside the country. So following is the brief analysis
of Indian laws governing adoption and also the provisions relating to ICA.
The Hindu Adoptions and Maintenance Act, 1956 (HAMA)
It is the only statute in force governing adoption of children and its ambit is confined to
Hindus in India. There is a legal vacuum as regards adoption by or of other communities
in India. Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally
adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956.
This act is the only statute in force governing adoption of children and its ambit is
confined to Hindus . Under this act a married man, a widow, a widower, single women,
or a divorced or deceased women has the capacity to adopt, if they are Hindus .
The Guardianship and Wards Act, 1890(GWA)
It is indirectly invoked by other communities to become guardians of the child during
minority. The statute does not deal with adoption as such but mainly with guardian ship,
and is to be read along with the personal laws or the topic as ancillary/corollary to the
latter. It may be indirectly invoked, in certain cases to confer legal guardianship of
children during minority. The Guardians and Wards Act, deals only with the guardians of
the person and property of the minor. In appointing or declaring the guardian of a
minor, the court shall be guided by what appears in the circumstances of the case to be
for the welfare of the minor consistently with the law to which the minor is subject.
Among the various factors to be considered by the court in the matter, the welfare of
the child is one of the considerations.

The Juvenile Justice (care and Protection of children) Act, 2000

This Juvenile Justice Act Provides for the adoption of abandoned and abused children by
people of all communities. 41 (3) of the JJA states that Juvenile justice boards shall be
empowered to give children in adoption implying that adoptive powers are not
automatic and state government must empower their respective justice board but no
state govt. has notified empowerment of its JJBs on adoption matters .
Juvenile Justice Amendment act allows non Hindus to adopt but there is hardly any
awareness about 2006 amendment to Juvenile Justice Act. Secondly, amending the act
was not enough there has to be more clarity about procedures and information how the
law should be applied. Instead of getting approval of higher courts like district court
and high courts (in case of the inter country adoption. Adoption should be done locally
by child welfare committees and juvenile justice boards. There are no rules or
infrastructure in place nor is there clarity on related issues like if the law will apply to
Muslims. Juvenile Justice Amendment act will apply to all Indians but it is not clear how
this law would override the provisions of other personal laws.
Adoption laws of India for Foreign Nationals:
Adoption of Indian children by foreign nationals or International Adoption is a
controversial issue. In foreign countries there are innumerable cases of Indian Orphans
being given secured and loving homes. But on the other hand some of the children

have been used as domestic servants, beggars and even for prostitution. In the matter
of L.K. Pandey v. Union of India, SC has laid down certain guidelines that have to be
followed in the case of foreign adoption in an attempt to safeguard the interests of the
children. Foreign Nationals adopt an Indian child under provisions of the Guardian and
wards Act, 1890. Indian Court will appoint the foreigner as the Childs guardian. The
foreign National will take the child to his country and adopt him or her as per laws of his
country.

Legislative Provisions in Nations around the Globe

CARA Guidelines

Adoptions are regulated by CARA (Central adoption resource authority). CARA pointed
out some of the loopholes in Indian Adoption. CARA specifies the eligibility conditions,
processing steps, documentation, costs, court processes, foster care conditions,
issuance of birth certificates and post adoption follow ups.
In India millions of children are bound to live the life of orphanage and destitute. Today
when any child is adopted we are proud of giving a decent homely life to the child. But
in the absence of the common adoption code for all community members, we cannot
hope the expected results. So now it is a time to reassess our laws and regulations that
deal with cases of Intra country and Inter country adoptions.
Government cannot try and plug loopholes in one act by amending another. The most
obvious feature of the Indian system for foreign adoptions is its bureaucratic layering of
multiple institutions that must approve each adoption. By creating a system where
multiple institutions must approve each adoption, within the context of a system often
suffering from corruption through bribery and personal connections, safeguards can
instead become opportunities for abuse. The system of adoption can become one
where, in order to get an adoption through the system, an individual has to either have
certain personal connections, or else be willing to grease palms. Once it becomes
apparent that approvals are based on such personal connections or monetary
inducements, incentives to follow the rules may disappear. Hence its a high time that
adoption laws in India need an amendment to bring in grater uniformity for all religions
but it needs to be done more systematically. Because of uncertainty of laws governing
adoption and inter country adoption in India there arises the problem of conflict of laws.
Thus the legislature has to take an imitative firstly to make a uniform
adoption laws for all persons living in India and also to make a concrete legislation on
inter country adoption.

THE INTERNATIONAL ADOPTION PROGRAM

Adoption is the process that gives a child a new family and is intended to provide
permanency and security for the child. The most important consideration in the
adoption process is the childs well-being. A successful adoption requires maturity,
empathy, understanding and patience from the adoptive parents.
Adopting a child from another country is extremely complex, and programs change as
the requirements of the countries of origin change. Alberta Adoption Services plays an
important role in the international adoption process by accepting all applications for

international adoption; authorizing the completion of a home study report on

prospective adoptive parents; reviewing and providing approval of the adoptive parents;
reviewing information on children proposed for adoption; and working with families to
determine whether a match is suitable and providing documentation to Citizenship and
Immigration Canada. Alberta Adoption Services staff works with foreign jurisdictions, the
federal government and immigration officials to ensure that the requirements of Alberta
legislation and the Hague Convention are met. We rely on the originating country to
provide accurate information about the child in the matching referral; however, there
may be little information available, because the child may have been abandoned at
birth, resulting in no birth certificate or health records.
Due to the complexities and risks involved in adopting internationally, Alberta Adoption
Services has developed the International Adoption Guidebook for Alberta Families to
ensure Alberta families are aware of the risks involved and challenges they may face
when adopting from another country. It is a printable guidebook and a valuable tool for
adoptive families considering an international adoption. The Government of Alberta
does not license, monitor or endorse individuals/agencies that arrange international
adoptions in foreign countries. Families can hire an individual/agency of their choice to
help prepare their familys adoption dossier and to make travel and legal arrangements,
however, it is the responsibility of each family to ensure the individual/agency is
reputable and authorized to finalize the adoption in the child's country of origin.
In order to comply with the legislative requirements of the childs country of origin, the
federal Immigration Regulations, the Hague Convention, and Albertas Child, Youth and
Family Enhancement Act, applicants should be aware of the following:
legislation, regulations and policies in the childs country of origin change on a regular
basis;
highly sensitive and political issues which countries face when their children are
adopted by foreigners;
problematic adoption practices uncovered in the childs country of origin, which may
include child theft, baby selling, child trafficking and forging of documents; and
technical difficulties in reaching officials in foreign jurisdictions, as well as differences in
language, culture and interpretation of procedures.
In international legal matters, there are no guarantees. You might begin the process to
adopt a child, only to have the process or costs change or the program end without
notice. You need to allow sufficient time for each agency and department to complete
procedures and forward documents. Most international adoptions take an average of
one to two years to complete and cost between $15,000 and $40,000.

THE HAGUE COVENTION

The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in
Respect of Inter country Adoption (Hague Convention) is a multi-lateral treaty that
regulates adoptions between contracting countries. It provides safeguards and
procedures to ensure the adoption is in the best interest of the child, biological parents
and adoptive parents. The childs country must make reasonable efforts to place the
child domestically before considering an international adoption.

Alberta implemented the Hague Convention in 1997. View an updated listing of Hague
jurisdictions. The Convention concerning Inter country Adoption is Convention number
33.
The Hague Convention applies to every adoption, including relative adoptions, where
the child lives in a Hague country and the adoptive parents live in Alberta. This is the
case even when the adoptive parents are citizens of the childs country and own
property in that country.
Adoptive applicants who wish to adopt a child residing in a Hague Convention country
must first apply to Alberta Adoption Services for authorization from the delegated
Central Authority for Alberta under the Hague Convention to begin the process.
The Central Authority of the childs country must determine that the child meets the
Hague Convention eligibility criteria for an international adoption and that there are no
suitable families in the childs country who are willing and able to adopt the child. The
Central Authority of the receiving country (Alberta) must determine that the adoptive
parents have been trained and are suitable for adoption. Both the sending and receiving
Central Authorities must agree that the proposed adoption should proceed.
Failing to comply with the requirements of the Hague Convention may prevent the child
from entering Canada since Canadas immigration legislation and Albertas Child, Youth
and Family Enhancement Act require compliance with the Hague Convention.
Three Types of International Adoption
Hague Convention Adoption is the process when: The childs country is a member of the
Hague Convention on Protection of Children and Co-operation in respect of Intercounty
Adoption (Hague Convention).
Government Adoption for Non-Hague Countries is the process when: There is an
adoption process established between the childs country and Alberta.
Private International Adoption is the process when:
The childs country has not implemented the Hague Convention.
The childs country does not have an adoption process with Alberta.
Note: Immigration regulations require that a permanent resident visa be obtained before
the child enters Canada. Privately arranged adoptions in Hague Convention jurisdictions
that are finalized in the childs country of origin do not meet the requirements of the
Hague Convention, the Alberta Child, Youth and Family Enhancement Act or Canadas
Immigration and Refugee Protection Act.
In all types of International Adoption Citizenship and Immigration Canada (CIC) is
responsible for the immigration process that allows the child you have adopted or intend
to adopt to enter Canada. Approximately 2,000 foreign children are adopted by
Canadian citizens or permanent residents every year.

PRIVATE GUARDIANSHIP ORDERS

Private Guardianship applies to children originating from countries where there is no

legislation to process an adoption. A Private Guardianship Order may be issued in the

childs country of origin and the adoption may be finalized privately in Alberta when the
adoptive parent obtains permanent residency status for the child.
Note: Immigration Regulations require that a permanent resident visa be obtained for
the child for the purpose of entering Canada to finalize an adoption in these
circumstances. Families who obtain Private Guardianship orders/Private Guardianship
Certificates for children who live abroad must deal directly with Citizenship and
Immigration Canada to obtain permanent residence status for the child.
Alberta Adoption Services has no role in obtaining permanent residency status for
children and no authority to provide Letters of No Involvement in Private Guardianship
cases.

CHILDREN FOR ADOPTION

Countries of origin determine which children are eligible for international adoption. In all
cases, the biological parents of the child must have their guardianship permanently
terminated before the child can be considered eligible for adoption. Reasonable efforts
must be made to place the child domestically before considering an international
adoptive family. This applies to the adoption of relatives as well. Newborns are not
generally available because efforts must first be made to place them for adoption in
their country of origin. The majority of children adopted internationally arrive in this
province when they are between 12 and 48 months old.

ROLES OF GURDIANS
Adoptive Parents are responsible for the cost of:
Parent Training and Home Study Report
Preparation of supporting documents and notarization, authentication and verification of
signatures
Translation
Courier fees
Immigration fees
Childs medical examination
Agency fees in childs country of origin
Travel and accommodations
Adoption finalization
Legal fees
Post Placement Reports on a schedule prescribed by the childs country of origin
In a government international adoption, Alberta Adoption Services is responsible for:
Providing information/procedures for adopting from specific countries

Reviewing Home Study Reports completed by licensed agencies and determining that
the applicants are suitable for adoption
Forwarding the adoption dossier to the childs country of origin
Agreeing to the adoptive match
Delegating the proposal of the adoptive match to the familys licensed adoption agency
Ensuring the child meets immigration requirements and will be admissible to Canada
Providing provincial acceptance of the match for immigration purposes
Finalizing the adoption order in Alberta, if the order cannot be finalized in the childs
country
Forwarding Post Placement Reports to the childs country of origin, as required
Use of a Coordinator
Due to the complexity of requirements, the majority of families adopting internationally
in Alberta find it an advantage to use a coordinator for services that include:
Preparation of all required documentation on the familys behalf, including: translation,
notarization, certification and authentication of the Home Study Report and supporting
documents;
Obtaining travel visas and making travel/hotel arrangements for adoptive parents who
travel to the childs country of origin; and
Arranging for a translator who is knowledgeable about the events which must occur
upon the applicants arrival in the childs country.
Alberta Adoption Services does not license, monitor or endorse individuals/agencies that
arrange international adoptions in foreign countries. Families can hire an
individual/agency of their choice to help prepare their familys dossier and make travel
and legal arrangements. It is the familys responsibility to ensure they choose a
reputable resource that is authorized to arrange and finalize adoptions in the childs
country of origin.
Agencies licensed in other provinces to facilitate international adoptions do not have the
authority to arrange adoptions in Alberta. They are considered to be coordinators in
Albertas process and are only able to provide services as indicated above.

CASE LAWS
In Gurmeet Kaur Batth v. State of Punjab[xiv], the High Court held that it can exercise
jurisdiction vested in it under Article 226 of the Constitution of India by issue of the writ
of Habeas Corpus in cases of International Inter-parental Child Abduction. The Canadian
court order in favour of the petitioner mother was relied upon and enforced.In Vikram Vir
Vohra v. Shalini Bhalla[xv], the Supreme Court of India upheld the ultimate consideration
of betterment of the child and held that that child custody orders are interlocutory in
nature and can be altered for the welfare of the child. Consequently, the Supreme Court
permitted the mother to take her minor son, aged about ten years old, to Australia in
accordance with the wishes of the child to stay with the mother, upholding the welfare
of the child as a paramount consideration.
In Mrs. Annie Besant v. Narayaniah AIR 1914 PC 41 the infants had been residing in the
district of Chingleput in the Madras Presidency. They were given in custody of Mrs. Annie

Besant for the purpose of education and

were getting their education in England at the University of Oxford. A case was,
however, filed in the district Court of Chingleput for the custody where according to the
plaintiff the minors had permanently resided. Repeating the plea that the Chingleput
Court was competent to entertain the application their Lordships of the Privy Council
observed: "The district court in which the suit was instituted had no jurisdiction over the
infants except such jurisdiction as was conferred by the Guardians and Wards Act 1890.
By the ninth Section of that Act the jurisdiction of the court is confined to infants
ordinarily residing in the district.
It is in their Lordship's opinion impossible to hold that the infants who had months
previously left India with a view to being educated in England and going to University
had acquired their ordinary residence in the district of Chingleput."
In Mst. Jagir Kaur and Anr. v. Jaswant Singh AIR 1963 SC 1521, this Court was dealing
with a case under Section 488 Cr.P.C. and the question of jurisdiction of the Court to
entertain a petition for maintenance. The Court noticed a near unanimity of opinion as
to what is meant by the use of the word "resides" appearing in the provision and held
that "resides" implied something more than a flying visit to, or casual stay at a
particular place. The legal position was summed up in the following words: ".......Having
regard to the object sought to be achieved, the meaning implicit in the words used, and
the construction placed by decided cases there on, we would define the word "resides"
thus: a person resides in a place if he through choice makes it his abode permanently or
even temporarily; whether a person has chosen to make a particular place his abode
depends upon the facts of each case....."
In Kuldip Nayar & Ors. v. Union of India & Ors. 2006 (7) SCC 1, the expression "ordinary
residence" as used in the Representation of People Act, 1950 fell for interpretation. This
Court observed:
"243. Lexicon refers to Cicutti v. Suffolk County Council (1980) 3 All ER 689 to denote
that the word "ordinarily" is primarily directed not to duration but to purpose. In this
sense the question is not so much where the person is to be found "ordinarily", in the
sense of usually or habitually and with some degree of continuity, but whether the
quality of residence is "ordinary" and general, rather than merely for some special or
limited purpose.
244. The words "ordinarily" and "resident" have been used together in other statutory
provisions as well and as per Law Lexicon they have been construed as not to require
that the person should be one who is always resident or carries on business in the
particular place.
245. The expression coined by joining the two words has to be interpreted with
reference to the point of time requisite for the purposes of the provision, in the case of
Section 20 of the RP Act, 1950 it being the date on which a person seeks to be
registered as an elector in a particular constituency.
246. Thus, residence is a concept that may also be transitory. Even when qualified by
the word "ordinarily" the word "resident" would not result in a construction having the
effect of a requirement of the person using a particular place for dwelling always or on
permanent uninterrupted basis. Thus understood, even the requirement of a person
being "ordinarily resident" at a particular place is incapable of ensuring nexus between

him and the place in question.

Reference may be made to Bhagyalakshmi and Anr. v. K.N. Narayana Rao AIR 1983 Mad
9, Aparna Banerjee v. Tapan Banerjee AIR 1986 P&H 113, Ram Sarup v. Chimman Lal
and Ors. AIR 1952 All 79, Smt. Vimla Devi v. Smt. Maya Devi & Ors. AIR 1981 Raj. 211,
and in re: Dr. Giovanni Marco Muzzu and etc. etc. AIR 1983 Bom. 242, in which the High
Courts have dealt with the meaning and purport of the expressions like `ordinary
resident' and `ordinarily resides' and taken the view that the question whether one is
ordinarily residing at a given place depends so much on the intention to make that place
ones ordinary abode.

LIMITATIONS
Keeping in mind the large-scale child trafficking in the world, The Rights of the Child,
1989 convention requires that ICA will receive only the last priority while searching for
the foster home. Like any other types of adoption, ICA can be expensive, timeconsuming and uncertain. If the challenges involved in inter country adoption can be
taken care of then ICA will give thousands of families joy and satisfaction as it has
already fulfilled dreams of many.
Human rights activists in the international adoption arena have spoken with a relatively
singular voice a voice that is generally critical of international adoption, calling either
for its abolition, or for restrictions that curtail its incidence in ways that I see as harmful
to children, limiting their chances of being placed in nurturing homes with true families,
and condemning even those who are placed eventually to unnecessary months and
years in damaging institutions.
Furthermore the research in the area of adoption has been parent centric and
consumed with the issue of whether adopted children perform better or worse than
biological children. If we are to move towards more child-centered studies we need to
document parent child interactions at the micro level and understand how these are
important in giving both parent and child a sense of well-being and self-worth. There is
a complete absence of longitudinal data on families in the country. ICA is focused on
parents in the developed world and placing a child in a foreign country strips her of her
culture and heritage. Despite any attempts by the adoptive parents to incorporate their
childs native culture into the home, removing a child from his country of origin makes
inaccessible to him an integral part of whom he is.
The international community acknowledges that cultural identity is very important, and
international standards always favor placing adoptable children whenever possible
within those childrens home countries for that reason .
With more and more families coming forward to adopt children within the country we
need to understand what works best , say for example in context of India a context
that is pluralistic and ridden with inequalities, but provides a child a great deal of
stability and strength, through the family. In understanding the influences on the
growing child it is important to take into consideration the socio-cultural context.
Thereby concluding on the whole the research, the aforesaid mentioned hypothesis of
the project has not been taken into consideration as a vital part in the mentioned
legislations of the nations, thereby forming to be a major limitation in the are of ICA for
the child who is being trans-racially adopted. The provisions nowhere explicitly talk

about this aspect of the ICA, i.e. the loss of the cultural and national identity of the
child which is and should be the paramount interest of the child.
Although the Rights of the Child Convention talks or throws a bit of light on such
circumstances but the member states have not ratified the same in their municipal law,
so there is a paucity of provision regarding the hypothesis presented.

CONCLUSION

The area of Private International Law is at its infancy stage in India. Due to the lack
of legislative developments in this regard, both at the international and domestic
levels, the sole refuge can be sought before the judiciary. Similar is the situation in
the cases of Inter-parental child abduction in India. Although the judiciary has been
showing remarkable creativity in dealing with plethora of such cases, the temporary
nature of this solution cannot be disputed. As such, a more consistent and
permanent legal response is awaited. The first step that can be taken in this
direction is the signing of the 1980 Hague Convention. Further, adoption of the
convention by the legislature should follow. Further, bilateral agreements should be
signed with the other non-signatory countries in this
regard.

CONTENTS

1. INTRODUCTION
2.

WHAT IS CHILD REMOVAL

3.

ADOPTION LAWS AND PROCEDURES

4.

REQUIREMENTS FOR ADOPTION

5.

ADOPTION PROCEDURE

6.

WHO CAN BE ADOPTED

7.

WHO CAN ADOPT

8.

INTERNATIONAL ADOPTION

9.

EFFECT OF ADOPTION

10. The

Indian Experience

11. Legislative

Provisions in Nations around the Globe

12. THE INTERNATIONAL ADOPTION PROGRAM
13. THE

HAGUE COVENTION

14. ROLES
15. CASE

OF GURDIANS

LAWS

16. LIMITATIONS

17. CONCLUSION