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Power Of Attorney Holder Not A Third Party Under Adoption Regulations; Bombay HC Allows Swiss Citizen To Trace Her Biological Parents [Read Order]

Nitish Kashyap
21 Oct 2019 9:10 AM GMT
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The Bombay High Court earlier this month allowed a plea by one Beena Muller, a citizen of Switzerland, to direct the State Adoption Resources Authority (SARA) to disclose necessary information about her adoption that took place over 30 years ago to an attorney appointed by her for this purpose.

Division bench of Justice Akil Kureshi and Justice SJ Kathawalla directed SARA to supply necessary information as may be available in connection with the adoption of the petitioner to the power of attorney holder Anjali Pawar.

The petitioner's adoptive parents are citizens of Switzerland. Her adoption was decreed on August 10, 1978 under the Hindu Adoption and Maintenance Act, 1956. The agency which facilitated the adoption was Asha Sadan and years later, the petitioner had the desire to trace her roots and possibly to trace her biological parents.

As the petitioner is a permanent resident of Switzerland, it is, therefore, difficult for her to stay in India for an elongated period of time. So, for the purpose of visiting various departments and following the leads in order to trace her roots, petitioner executed a power of attorney in favour of Anjali Pawar and Arun Dohle.

Advocate Pradeep Havnur appeared on behalf of the petitioner and submitted that SARA has relied upon Regulation 44 of Adoption Regulations 2107 notified by Central Adoption Resource Authority (CARA) to deny the holders of power of attorney access to any kind of information about the petitioner's adoption.

Sub-regulation (6) of Regulation 44 states-

"A root search by a third party shall not be permitted and the agencies or authorities concerned shall not make any information public relating to biological parents, adoptive parents or adopted child"

After hearing submissions of AGP PG Sawant as well, Court examined all the material at hand and noted-

"The purpose for framing said sub-regulation, therefore, can easily be appreciated. However, when the adopted person himself or herself appoints an attorney to act for and on his / her behalf, such power of attorney ceases to be a third party and would therefore not be hit by the limitation contained in sub-regulation (6) of Regulation 44.

A person who is appointed as attorney acts for and on behalf of the person so appointing him and therefore, cannot be considered to be a third party for the purpose of Regulation 44(6). Subject to certain safeguards, therefore, we propose to direct the concerned respondents and in particular SARA to provide necessary documents and further information as may be available with it to Ms. Anjali Pawar as a duly constituted attorney of the petitioner for such purpose."

Disposing of the petition, Court noted that the other power of attorney Arun Dohle shall not be taken into consideration since fulfilling requests of two different persons may also cause difficulty for the respondents.

Click here to download the Order

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