Bombay HC allows Swiss Woman to trace her roots in India via Power Of Attorney holder [Read Order]

The Bombay High Court recently allowed an Indian origin woman who was adopted by Swiss citizens to trace her Indian roots through a Power Of Attorney (POA) holder..A Division Bench of Justices Akil Kureshi and S J Kathawalla was hearing a plea by one Beena (Leena) Makhijani Muller, 41-year-old citizen of Switzerland. Pursuant to the Court decree of August 10, 1978, Muller’s adoption by Swiss citizens was facilitated by adoption agency Asha Sadan, under the Hindu Adoption and Maintenance Act, 1956..Decades later, the petitioner desired to trace her biological parents in India. However, since the petitioner was permanent resident of Switzerland, she was unable to spend an extensive period of time in India for visiting various departments to follow leads to trace her roots..Therefore, Muller had appointed two attorneys (Anjali Pawar from Pune and Arun Dohle residing in Germany) to approach and apply before the authorities and institutions involved in her adoption. The powers were also given to the attorneys to initiate or defend legal proceedings in any court of law with respect to the process..However, that the Maharashtra State Adoption Resources Authority (SARA) of Women and Child Development Department refused to supply the information sought by Muller to the two attorneys designated by her..Aggrieved by the same, Muller moved the Bombay High Court for relief. Appearing for Muller, advocate Pradeep Havnur referred to the Supreme Court’s judgment in Lakshmi Kant Pandey vs Union of India to argue an adoptee has the right to know about her roots after attaining majority..Appearing for the SARA, however, Assistant Government Pleader PG Sawant relied on the Adoption Regulations, 2017 to argue that adoption details can only be given to the adoptee and not to her attorneys..In this regard, Regulation 44 was highlighted. This provision pertains to root search on an adoptee becoming an adult. Notably, sub-regulation (6) of Regulation 44 provides for ensuring the confidentiality of adoption information by ensuring that the same is not supplied to third parties. It 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.”.While the Court admitted that the purpose for ensuring the confidentiality of adoption information can be easily appreciated, it proceeded to observe that an attorney appointed by the adopted person ceases to be a ‘third party’. Therefore, a power of attorney appointed by an adopted child for the purpose of tracing her root iformation would not be hit by the limitation contained in Regulation 44. As noted in its order,.“… 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.”.To facilitate the process, the Court directed Muller to file an affidavit conferring the Power of Attorney to Anjali Powar. The affidavit was also to record Muller’s consent in this regard so that the supply of information to Powar would not thereafter be construed as a breach of confidentiality..The Court, however, refused to consider allowing the grant of such powers to the other POA designate, Arun Dohle, observing that it will be difficult for respondent authorities to fulfil requests of two different persons..The Court, therefore, ordered,.“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.” .[Read Order dated October 9, 2019]