Welfare Home For Children vs Union Of India Air 1984 Sc 469 on 12 April, 2017
Welfare Home For Children vs Union Of India Air 1984 Sc 469 on 12 April, 2017
1 In the Court of Ms. Poonam A. Bamba, District and Sessions Judge : South East : Saket Court, New Delhi.In the matter of :G.P. No. 16/2016 Welfare Home for Children B1, Institutional Area, Sarita Vihar New Delhi110 044. Though its Social Worker Ms. Lata Nair .... Petitioner V E R S U S Ms. Elisabeth Clementina Josepha Jacobs R/o Wipstraat 47 AT 2590 Berlaar Belgium Through her attorney Ms. Nidhi Kataria, Adoption Officer Welfare Home for Children B1, Institutional Area, Sarita Vihar New Delhi110 044. .... Respondent Petition presented on : 05.12.2016 Arguments concluded on : 12.04.2017 Judgment Pronounced on : 12.04.2017 PETITION UNDER SECTION 59 (7) OF JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015, FOR ORDER OF ADOPTION WITH RESPECT TO THE MINOR CHILD 'NITIN' IN FAVOUR OF THE RESPONDENT. G.P. No. 16/16 WHC V. Elisabeth Clementina Josepha Jacobs Page 1 of 25 2 JUDGMENT
1.0 Vide their petition, Welfare Home for Children, B1, Institutional Area, Sarita Vihar, New Delhi, ("Petitioner Society" in short) through its social worker and authorized representative Ms. Lata Nair, prayed that the minor child 'Nitin' born on 09.05.2011 ("Child" in short) be given in adoption to the respondent Ms. Elisabeth Clementina Josepha Jacobs, as her son and that she be permitted to remove the minor child outside the jurisdiction of this Court for his upbringing to Belgium, where the respondent resides.
2.0 The petition has been filed by WHC being a Society, registered as a Charitable Organization running its Orphanage Homes for abandoned/destitute/ handicapped children. WHC is duly recognized by the Central Adoption Resource Authority (hereinafter referred to as "CARA"), Ministry of Women and Child Development, Govt. of India, as an agency for placing children in adoption i.e. as Specialized Adoption Agency ("SAA" in short) Ms. Lata Nair has been duly authorized by WHC, the petitioner society to sign, verify 3 and institute the petition under Section 59 (7) of Juvenile Justice (Care and Protection of Children) Act, 2015 ("JJ Act" in short).
3.0 The petitioner has submitted that a minor male child 'Nitin' born on 09.05.2011 was placed with the WHC. The petitioner desires to give the child in adoption to the respondent Ms. Elisabeth Clementina Josepha Jacobs, through her attorney Ms. Nidhi Kataria, Adoption officer, WHC.
4.0 It is submitted by the petitioner that on 09.05.2015, a minor male child 'Nitin' was found abandoned by the police officials of PS Amar Colony, who handed over the custody of the child to the petitioner society. The child was produced before the Child Welfare Committee, Kalkaji, who permitted the petitioner to continue to keep the child. The parents of the child did not come to claim him. Vide order dated 03.03.2016 in petitioner's application/Case no. 483/15, the Child Welfare Committee declared the child as an abandoned child and legally free for adoption, after due enquiries. On the basis of the medical examination, the date of birth of the child was determined as 09.05.2011.
4 4.1 It is further submitted by the petitioner that every effort was made by it to place the child in an Indian family. But no suitable Indian family came forward to adopt the child and the CARA has thus cleared the child for foreign adoption. The respondent from Belgium has come forward to adopt the minor child 'Nitin'. It is also submitted that the petitioner has received "No Objection Certificate" from the CARA to seek permission from the Court to give the minor child in adoption to the respondent under Section 59(7) of the JJ Act.
4.2 The petitioner has further stated that the respondent was born on 20.12.1967 and is presently about 49 years old and single. The respondent was married to a divorcee Mr. Joel, who died on 15.08.2011. The respondent is working as a General Manager with Keesing Belgium NV and her gross annual salary is Euro 5.201,56 per month and enjoys high status and has sufficient means of livelihood. The respondent now wishes to adopt the minor child 'Nitin' as her son and forwarded all her documents through "RAY OF HOPE, Knaptandstraat 259160 Lokeren (Belgium)" which has been recognized as Foreign Adoption Agency by the Government of India/CARA ("AFAA" in short), which has furnished necessary undertaking as per the 5 directions of the Hon'ble Supreme Court of India in Lakshmi Kant Pandey Vs. Union of India AIR 1984 SC 469, and as contemplated under the JJ Act, to look after the interest of the minor in case, the respondent failed to do so for any reason whatsoever.
4.3 The petitioner has also submitted that the respondent after seeing the Child Study Report, photograph and Medical Report of the child has approved the child for adoption. She has also submitted several documents to show her status, employment and family background. She has enclosed duly notarized and authenticated power of attorney in favour of official of the petitioner namely Ms. Lata Nair, to apply for adoption on her behalf.
4.4 Petitioner further stated that the respondent is enjoying good health and as per the medical certificate concerning her health, she is not suffering from any mental or physical disease or incapacity detrimentally affecting her fitness to have custody of the adopted child as her son. The respondent approached the Authorised Foreign Adoption Agency for adopting the child, which is recognised by the Govt. of India 6 and is competent to sponsor her.
4.5 It is also submitted that the respondent has been found to be the most suitable person for legal adoption of the child "Nitin" and the CARA has issued 'No Objection Certificate' in favour of the respondent for adopting the child.
4.6 The petitioner has further submitted that as per law, the respondent has undertaken to send to the petitioner, a progress report and photograph of the child quarterly for the first two years and half yearly for the next three years, till the adoption is completed. The respondent has also undertaken to bring up the child according to her status. It has also been submitted by the petitioner that neither has any person been appointed as guardian of the child Nitin nor has anyone else been granted permission to adopt the child; and that the respondent has no interest adverse to that of the minor child. Therefore, it is in the interest and welfare of the minor child if he is given in adoption to the respondent. The petitioner is satisfied that the adoption of the child by the respondent would be in the interest and welfare of the child who would have loving mother, a house to live in and a sense of belonging.
7 4.7 It has also been submitted that the child owns no property and it is in his interest and welfare that he is placed and adopted in a financially and otherwise sound family where he would have a sense of belonging. The petitioner has submitted that this Court has jurisdiction over the minor since adoption is permissible in terms of the JJ Act, as amended.
5.0 I have heard Learned Counsel for the petitioner, attorney of the respondent and have perused the record carefully.
6.0 It may be mentioned that earlier, the process of adoption was governed by CARA guidelines issued in terms of the judgment of the Hon'ble Supreme Court of India in Lakshmi Kant Pandey's case (Supra). CARA came into existence on the basis of the directions of the Hon'ble Supreme Court of India in that case. However, CARA is now a statutory body, set up vide Section 68 of the JJ Act.
6.1 Let me briefly mention the scheme of the JJ Act 8 with respect to orphaned/abandoned child. Adoption is governed by Chapter VIII Sections 56 to 73 of the JJ Act. It needs to be examined whether the adoption in the instant case satisfies all the requirements of law. The JJ Act recognizes that adoption is to be resorted to for ensuring the right to a family of the orphan, abandoned and surrendered child. Such adoption can be made irrespective of religion or marital status of the person interested in adopting the child. Section 57 of the JJ Act requires that to be eligible for adoption, the Prospective Adoptive Parents ("PAPs" in short) should be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to the child, both the spouses in case of a couple, should consent for the adoption and should fulfill any other criteria if specified under the Adoption Regulations.
6.2 In the instant case, the Prospective Adoptive Parents being a foreigner, the procedure for adoption of the child is governed by Section 59 of the JJ Act, which reads as under :
"Sec. 59 Procedure for intercountry adoption of an orphan or abandoned or surrendered child (1) if an orphan or abandoned or surrendered child could not be placed with an Indian or nonresident 9 Indian prospective adoptive parents despite the joint effort of the Specialised Adoption Agency and State Agency within 60 days from the date the child has been declared legally free for adoption, such child shall be free for intercountry adoption:
Provided that children with physical and mental disability, siblings and children above five years of age may be given preference over other children for such intercountry adoption, in accordance with the adoption regulations, as may be framed by the Authority;
(2) An eligible nonresident Indian or overseas citizen of India or person of Indian origin shall be given priority in intercountry adoption of Indian children;
(3) A nonresident Indian or overseas citizen of India, or person of Indian origin or a foreigner, who are prospective adoptive parents living abroad, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child from India, may apply for the same to an authorized foreign adoption agency, or Central Authority or a concerned Government department in their country of habitual residence, as the case may be, in the manner as provided in the adoption regulations framed by the Authority;
(4) The authorized foreign adoption agency or Central Authority or a concerned Government department, as the case may be, shall prepare the 10 Home Study report of such prospective adoptive parents and upon finding them eligible, will sponsor their application to the authority for adoption of a child from India, in the manner as provided in the adoption regulations by the authority;
(5) On receipt of the application of such prospective adoptive parents, the authority shall examine and if it finds the applicants suitable, then, it will refer the application to one of the Specialized Adoption Agencies, where the children legally free of adoption are available;
(6) The Specialised Adoption Agency will match a child with such prospective adoptive parents and send the child study report and medical report of the child to such parents, who in turn may accept the child and return the child study and medical report duly signed by them to the said agency;
(7) On receipt of the acceptance of the child from the prospective adoptive parents, the Specialised Adoption Agency shall file an application in the court for obtaining the adoption order, in the manner as provided in the adoption regulations framed by the Authority;
(8) On the receipt of a certified copy of the court order, the Specialized Adoptive Agency shall 11 send immediately the same to Authority, State Agency and to the prospective adoptive parents, and obtain a passport for the child;
(9) The authority shall intimate about the adoption to the immigration authorities of India and the receiving country of the child;
(10) The prospective adoptive parents shall receive the child in person from the Specialized Adoptive Agency as soon as the passport and visa are issued to the child;
(11) The authorized foreign adoption agency or Central Authority or the concerned Government department, as the case may be, shall ensure the submission of the progress report about the child in the adoptive family and will be responsible for making alternative arrangement in case of any disruption, in consultation with Authority and concerned Indian diplomatic mission, in the manner as provided in the adoption regulations framed by the Authority.
(12) A foreigner or a person of Indian origin or an overseas citizen of India, if interested to adopt a child from India, may apply to Authority for the same along with a no objection certificate from the diplomatic mission of her country in India, for further necessary actions as provided in the adoption regulations framed by the Authority.
12 6.3 It may further be mentioned that Section 61 JJ Act requires that before issuance of the adoption order, the Court must satisfy itself that :
(a) the adoption is for the welfare of the child;
(b) due consideration is given to the wishes of the child having regard to the age and understanding of the child;
(c) no consideration has been paid for the adoption.
7.0 From the above, it is clear that for adoption under Section 59 JJ Act, the prerequisites are :
(i) declaration of the child by the CWC to be legally free for intercountry adoption;
(ii) the joint efforts of Specialized Adoption Agency and State Agency to place the child in India with an Indian family within 60 days from the date the child has been declared legally free for adoption, have failed;
(iii) on failure to obtain an Indian parent for the child within 60 days, they shall look for PAPs who are NRI, overseas citizen of India, or person of 13 Indian origin or in their absence, a foreigner;
(iv) PAPs who are interested to adopt an orphan or abandoned or surrendered child from India may apply for the same to an authorized Foreign Adoption Agency and therefore, the declaration must be on record;
(v) the authorized Foreign Adoption Agency or Central Authority is to prepare the Home Study report; and upon finding the PAPs eligible, it shall sponsor the application. Thus, the Home Study report and the sponsorship application must be on record;
(vi) on receipt of such application from the PAPs through the authorized Foreign Adoption Agency, CARA has to refer the said application to the SAA;
(vii) SAA will match a child with the PAPs and send the Child Study report and the Medical Report of the child to the PAPs. Such reports must be placed on the record;
(viii) the acceptance of the Child Study report and the Medical report by the PAP must also be on the record.
7.1 Only after completion of all the above formalities, the SAA, like the petitioner society, can file an application for obtaining the adoption order.
14 8.0 In the instant case, the petitioner Agency has examined Ms. Lata Nair, its social worker as PW1. It has also examined Ms. Nidhi Kataria, Adoption Officer, Welfare Home for Children, as RW1 on behalf of the respondent.
9.0 Through her testimony, Ms. Lata Nair as PW1 has brought on record her affidavit as Ex. PW1 and has stated that she has been working as a social worker in the petitioner society/Welfare Home for Children i.e. Specialised Adoption Agency.
9.1 PW1 has deposed on the lines of averments made in the petition. She testified that the minor male child namely Nitin born on 09.05.2011 was found abandoned on 09.05.2015 by the police officials of PS Amar Colony, New Delhi, who handed over the custody of the child to the petitioner society. She has further deposed that the parents of the said child did not come to claim him for a considerable period. Therefore, the petitioner society/WHC filed an application before the Child Welfare Committee, New Delhi for declaring the child as an abandoned child. She has further deposed that vide order dated 03.03.2016, Ex. PW1/1, the Child Welfare Committee declared 15 the child as an abandoned child and legally free for adoption, after due enquiries. PW1 Ms. Lata Nair has also placed on record Ex.PW1/2 the No Objection Certificate issued by CARA for placement of the child with PAP - respondent.
9.2 PW1 has also placed on record, the copy of the Recognition Certificate of the petitioner society as Specialized Adoption Agency by the Govt. of Delhi as well as by the CARA, as Ex.PW1/3 (Colly). PW1 has also placed on record, the Child Study Report (CSR) Ex.PW1/4 (colly) prepared by Ms. Nidhi Kataria, Social Worker of petitioner society along with the latest photograph of the child and Medical Examination Report (MER) of the minor child. She has also stated that she has no objection if the minor child Nitin is given in adoption to the respondent. The Reports Ex. PW1/4 bear the signatures of the respondent on CSR at Point 'A' and on MER at 'B' on the last page in expression of her willingness to adopt the child as described in the said reports.
10.0 Ms. Nidhi Kataria, Adoption Officer, Welfare Home for Children, has placed on record her affidavit Ex.RW1 and has deposed that she is working as Adoption Officer in the 16 petitioner Society; and that she has been appointed by the respondent as her attorney to pursue the adoption vide Ex. RW1/1 Power of Attorney. She has also placed on record the following documents :
(i) The undertaking of the Ray of Hope, Authorised Foreign Adoptive Agency/the Sponsoring Agency as Ex.RW1/2;
(ii) "Approval Child Proposals" given by the Flemish Central Authority for Intercountry Adoption as Ex.RW1/3 (colly);
(iii) The Child Approval and Acceptance letter from the adoptive mother as Ex.RW1/4;
(iv) Undertaking given by the respondent to the visit of the representatives of Ray of Hope/AFAA to the respondent to ascertain the progress of the child as Ex.RW1/5;
(v) Letter with respect to change of address of the respondent as Ex.RW1/6;
(vi) Certificate of suitability of the respondent for intercountry adoption to adopt the child and the Judgment of suitability in Italian language with English translation as Ex. RW1/7(colly);
17
(vii) Home Study Report of the respondent in Italian language with English Translation as Ex.RW1/8;
(viii) Certificate of residence and nationality of the respondent as Ex.RW1/9;
(ix) Certificate of Employment of the respondent as Ex.RW1/10;
(x) Certificate Ex.RW1/11 given by Belfius Bank & Insurance to the respondent that she has always fulfilled her financial and commercial obligations ;
(xi) Birth Certificate of the respondent as Ex.RW1/12;
(xii) Health certificate of the respondent as Ex.RW1/13(colly);
(xiii) Declaration by sister of the respondent to take care of the child in case the respondent for any reason is unable to raise the child as Ex.RW1/14;
(xiv) Reference letters of the friends of the respondent as Ex.RW1/15(colly);
(xv) Police Clearance report of the respondent in Italian Language and its English translation as Ex.RW1/16;
18 (xvi) Photographs of the respondent and her house as Ex. RW1/17(colly), and (xvii) Photocopy of the passport of the respondent as Ex.RW1/18;
10.1 RW1 has deposed that the above documents Ex. RW1/1 to RW1/16 are authenticated, notarized and apostilled. She has further testified on behalf of the respondent that the respondent has approved the minor child Nitin for adoption and has expressed her willingness to adopt him; and has prayed that she be allowed to adopt the minor child Nitin. She has also deposed that the respondent shall abide by the undertaking to bring him up as her own son.
11.0 With respect to the interaction between the child and the PAP, affidavit of Dr. Jagannath Pati, Joint Director CARA has been filed. Vide the said affdiavit, he has stated that the PAPs have adequate opportunities for interaction with the child before taking the child to their country, in terms of regulation 18(7) of the Adoption Regulations, 2017. It is also stated that video clippings of the child are also provided to the 19 PAPs and video calls between the child and PAPs are also facilitated in terms of regulations 29(3)(f) of the Adoption Regulation, 2017. The petitioner and the attorney of the respondent have apprised this court that the respondent was provided photographs/video clippings of the child Nitin; she has been interacting with the child through video calls. It is also stated that once the adoption order is issued by the court, the respondent would come to India and the child will be placed with her for some time before she takes the child to Belgium.
12.0 The documents brought on record meet the requirements of the JJ Act. The child has been declared free for adoption by the Child Welfare Committee, Kalkaji, New Delhi, vide its order dated 03.03.2016, Ex.PW1/1.
13.0 The Home Study Report of the respondent Ex. RW1/8 (Colly) carried out by Public Prosecution's Department, has notified that the respondent is of age and has full legal capacity and has a clean record. It has further notified that the respondent is a single woman and has been living on her own since she was 29. Her husband Mr. Joel unexpectedly died of heart failure in 2011. It has been further notified that the 20 respondent is living in a ground floor apartment in the village centre of Berlaar since 1997 and that the respondent is planning to move to another home, which is being built on a plot of land of 7 acres, which has a hall, a spacious living room with integrated kitchen, a storage room and a toilet. It has also been notified that the house is located in a safe and quiet area, which is surrounded by a wide enough and supporting network and that the respondent has enough social contacts and does not lead a solitary life. The Home Study report has also notified that the respondent has empathic skills and a good share of commons sense and has the energy, the space and the right attitude to raise and to take care of one adoptive child.
13.1 Certificate of Employment Ex. RW1/10 issued by the General Manager of the Company Keesing Belgium NV mentions that the respondent is working with security number 163049918 and is in service since 01.03.2005. Gross per month wage of the respondent is 5.201,56 Euros 13.2 The medical certificate of respondent Ex.RW1/13 is also satisfactory as it mentions that she neither suffers from chronic diseases nor from any contagious infectional diseases.
21 Ex. RW1/7 (Colly) is the judgment of the Juvenile Court of First Instance in Antwerp, division of Mechelen with respect to the suitability of the respondent to adopt the child. Ex. RW1/7 held that respondent has sufficient financial and material means to raise and to care for an adoptive child; she can guarantee that she will be sufficiently available for her adopted child and further observed that "it might be wise to opt for the adoption of a somewhat older child and further declared that the respondent is a suitable candidate to proceed to an intercountry adoption of one child". It is submitted by the petitioner that the child Nitin is about more than 5 years of age and meets the requirements.
13.4 The respondent is therefore, physically fit, financially sound, mentally alert and is motivated to adopt child for providing a good upbringing to him. Thus, as per Section 57 of the JJ Act, the respondent is eligible to adopt a child.
14.0 The Authorised Foreign Adoption Agency i.e. Ray of Hope, Belgium, vide its undertaking Ex. RW1/2 has undertaken that the Prospective Adoptive Parent/respondent, Ms. Jacobs Elisabeth, will legally adopt the minor child Nitin (09.05.2011) according to the law of Belgium within a period 22 not exceeding two years from the time of arrival of the child in her country. They have also undertaken that that they will send a certified copy of the adoption registration to the petitioner. They have further undertaken to send reports relating to the progress of the adopted child along with his recent photograph, quarterly during the first year and halfyearly for the next two years. It is also undertaken by them that in case of disruption of the adoptive family before the legal adoption is effected, they will take care of the child and find a suitable alternative placement for the child with the approval of the CARA and that they will reimburse all expenses to the petitioner, as fixed by CARA, towards maintenance of the child and processing charge fees.
15.0 The respondent vide Ex. RW1/4 "Child Approval and Acceptance", has confirmed that she has examined the Child Study Report and the Medical Examination Report of the minor child Nitin, born on 09.05.2011 and understood the same. She has expressed her willingness to adopt the minor child in the condition as mentioned in the reports; and that she would also take all steps that may be necessary to acquire the citizenship of her country for the benefit of the child at the 23 earliest as per local laws. She has also given an undertaking Ex.RW1/5 that she as an adoptive parent would allow personal visits of the representative of the Authorized Foreign Adoption Agency Ray of Hope to ascertain the progress of the child Nitin at least for a period of two years from the date of arrival of the child in Belgium 16.0 It may also be mentioned that on 31.01.2017, the court interacted with the child Nitin. The child seemed familiar with the respondent, her family and was eager to join her company. Child Nitin seemed visibly happy at the prospect of having a family.
17.0 In view of the above, I find that all the statutory requirements have been met by the petitioner society and the respondent. The documents on record disclose that the child has been validly declared free for adoption; and the Home Study Report of the respondent reflects her social, psychological, medical and financial soundness. In view of the same and in the light of the interaction the court had with the child, the court finds that it would be in the best interest and welfare of the minor child Nitin that he be given in adoption to the 24 respondent Ms. Elisabeth Clementina Josepha Jacobs as it would provide him a family and sense of belonging. Thus, there is no impediment, legal or otherwise, in allowing the petition.
18.0 In view of the above, it is ordered that the child named 'Nitin' born on 09.05.2011 be given in adoption to the respondent Ms. Elisabeth Clementina Josepha Jacobs as her son w.e.f. 12.04.2017. The respondent Ms. Elisabeth Clementina Josepha Jacobs and the authorised Foreign Adoption Agency shall remain bound by the undertakings given by them.
19.0 Section 63 declares the effect of adoption. A child in respect of whom an adoption order is issued by the court, shall become the child of the adoptive parents and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents for all purposes, including intestacy with effect from the date on which the adoption order takes effect; and on and from such date all the ties of the child in the family of his birth shall stand severed and replaced by those created by the adoption order in the adoptive family.
25 19.1 In view of the above, child 'Nitin' shall become the child of the respondent and the respondent Ms. Elisabeth Clementina Josepha Jacobs, shall become the adoptive mother, of the child 'Nitin' w.e.f. 12.04.2017.
19.2 The concerned authorities may accept the date of birth of the child 'Nitin' as 09.05.2011 for issuance of the birth certificate and other legal documents.
20.0 The petitioner society and CARA shall file quarterly reports on the progress of the child "Nitin'' in Court for a period of two years from the date of the order.
21.0 The requisite certificate in respect of the adoption may be issued with the photographs of the child and parent. File be consigned to record room.
Announced in the open court on 12th April 2017 (Poonam A. Bamba) District and Sessions Judge SouthEast, Saket Courts New Delhi (s)