Andhra Pradesh High Court - Amravati
The Asst. Project Director, District ... vs In The Matter Of Minor Child, on 28 April, 2022
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
FAMILY COURT APPEAL No.59 OF 2021
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar) The present appeal is filed under Section 19 of the Family Courts Act, 1984 assailing the order dated 15.04.2021 passed in F.C.O.P.No.89 of 2021 on the file of the Family Court-cum-VII Additional District Court, Anantapuram, wherein an application filed under Section 59 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the Act') read with Rule 33(5) of Juvenile Justice Rules, 2015 seeking permission of the Court for inter-country adoption was rejected.
2. For the sake of convenience, the parties will hereinafter be referred to as arrayed before the Family Court.
3. The circumstances which led to filing of the appeal are as under:
The 1st petitioner herein was notified as Specialized Adoption Agency under the Act vide G.O.Ms.No.7 dated 01.03.2000. The 1st petitioner, which runs a Sisugruha, takes care of abandoned and neglected children. The 2nd petitioner, who happens to be working as a teacher in a Primary Education School and earning about Rs.30,306.68 euros per annum, wants to take a minor child by name Viswas (surrendered child), who is in care and custody of the 1st petitioner. It is to be mentioned here that the efforts of the 1st petitioner in tracing the parents of the child were successful but 2 however found that the mother of the child was suffering with HIV while the father was reluctant to take the child. Hence, the 1st petitioner placed the child before the Child Welfare Committee, which declared the child as legally free for adoption under Ex.A.23 proceedings. Thereafter, the 1st petitioner placed the profile of the child in web portal of Central Adoption Resources Agency.
Pursuant to which, the 2nd petitioner proposed to take the child in adoption as he is financially sound and in a position to take care of the welfare of the child. On an application made, the authorities declared the 2nd petitioner as a person eligible to take the child.
Hence, the present application is filed for appropriate directions for giving the said child in adoption to the 2nd petitioner. In support of its case, the 1st petitioner examined one S.Lakshmi Kumari and got marked Exs.A.1 to A.27. After considering the evidence available on record, the Court rejected the application, because of six irregularities, which are as under:
"14. In view of the same, this Court observed the following irregularities from the first petitioner agency.
1. The first petitioner suppressed the health conditions of the parent of the child to the second petitioner.
2. The first petitioner failed to take steps to counsel the father of the minor child.
3. The first petitioner failed to authorize a social worker to handle the case on behalf of the second petitioner in terms of regulations 17(2) of 2017 Regulations.
4. The first petitioner failed to place any material before this Court regarding the travelling capacity of minor child from Anantapuramu, Andhra Pradesh in India to Spain.3
5. The second petitioner does not have spouse to give mother care to the minor child who lost his mother.
6. The second petitioner got another adopted child.
Even though the first petitioner failed to consider the same.
In consideration of the above irregularities and also in consideration of welfare of the minor which is paramount consideration and on observation of the above irregularities from the first petitioner agency, it is the considered opinion of this court that though the second petitioner established all the grounds for consideration but in view of the above identified irregularities the first petitioner cannot be permitted to give adoption of the minor child to the second petitioner in view of his age and antecedents and also the well being of minor child and the first petitioner failed to establish justifiable grounds for permission to give adoption of the minor child to the second petitioner and this petition is devoid of merits. Accordingly, this point is answered against the first petitioner.
In the result, the petition is rejected. There shall be no order as to costs."
Challenging the same, the present appeal is filed.
4. Heard learned Government Pleader for Appeals. Since there is no respondent, we requested Sri S.Lakshminarayana Reddy, learned counsel, to assist the Court in deciding the dispute and we appreciate and acknowledge the efforts made by him in assisting the Court.
5. A perusal of the docket proceedings would show that this Court by an order dated 20.10.2021 directed the learned counsel for the appellant to place on record additional affidavit enclosing relevant material to rebut the reasons given by the trial Court in refusing the inter-country adoption.
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6. Pursuant thereto, the appellant herein filed an affidavit on 26.11.2021, explaining the anomalies pointed out and marked documents in support of the same. A perusal of the said material on record would show that the allegation that the 1st petitioner suppressed the health condition of the parents of the child of the 2nd petitioner may not be correct for the reason that the certificate dated 25.05.2021 issued by the Child Welfare Committee, Anantapuram indicates that the mother of the child by name Smt. B.Nirmala was treated at Government General Hospital, Anantapuram, where she delivered a male child on 10.03.2016 and then absconded from the hospital. The letter also indicates that she has been treated at ART Center, Government General Hospital, Anantapuram and received ART Medication. Therefore, the objection raised that the 1st petitioner has suppressed the health condition of the parents of the child to the 2nd petitioner may not be correct.
7. Insofar as the 2nd objection is concerned, it is to be noted here that there is material on record to show that counselling of the parents of the minor child, took place on 30.06.2016, wherein the conditions of the committee were explained, which were accepted by the father of the minor child. The surrender deed prepared and signed by all concerned is also placed on record. A reading of the same would show that the father of the child was not inclined to take the minor child back, which was approved by the committee vide letter dated 04.06.2016. 5
8. Coming to the 3rd objection, it is to be noted that Authorization Certificate was obtained from the Central Adoption Resource Agency (CARA) in favour of the 1st petitioner vide letter dated 17.09.2020 towards adoption. The same is placed on record. A reading of the same would discloses that in exercise of power vested in the Child Welfare Committee, Anantapuram under Section 41(4) of the Act, Master Viswas, whose date of birth is shown as 10.03.2016, shall be placed in the case of Specialized Adoption Agency vide proceedings dated 30.03.2016 of the Child Welfare Committee, Anantapuram. Ex.A.25 is the certificate issued to that effect.
9. Insofar as income of the second petitioner is concerned, the material on record amply established that he has sufficient source of income for taking the child from Anantapuram. Coming to the 5th issue, as to whether the 2nd petitioner has a spouse to give mother care to the minor child, who lost his mother, the Central Adoption Agency has gone into the said aspect. Keeping in view the guidelines issued from time to time, issued a certificate for adoption as per Regulation 17(2) of the Adoption Regulations, 2017 (for short, 'the Regulations'), which shows that a girl child cannot be given adoption but if it is a male child, as in the instant case, the adoption of minor male child can be given, even if the person adopting is single. Therefore, this contingency should not in our view debar adoption. Insofar as the second petitioner adopting second child is concerned, the learned counsel contends that there is no bar for taking the second child in adoption. The first 6 petitioner agency is aware about the same and informed to CARA, which has considered and permitted adoption of second child after taking into consideration the material on record. In other words, after taking into consideration his affidavit, "No Objection Certificate" was issued in favour of the 2nd petitioner as per the Regulations. At this stage, we would like to refer to the judgment of the Delhi High Court in PKH Vs. Central Adoption Resource Authority (W.P.(C) 5718/2015 & CM Appls.28508/2015, 19662/2016), wherein at paragraph Nos.78, 84, 85, 86 and 87 the court held as under:
"78. The question of whether inter-country direct adoptions are amenable to the jurisdiction of CARA has also been examined by this Court.
84. This Court is in agreement with the submission of the learned Amicus Curiae that as the adoption deed in the present case had been executed before the Act, 2015 came into force, it would be governed by the Act, 2000 and not by the Act, 2015.
85. Since arguments were advanced with regard to the scope and interpretation of Act, 2015, this Court clarifies that though there is some ambiguity as to whether the Act, 2015, applies to inter-country direct adoptions, yet it is of the opinion that the scope of Section 60 of the Act, 2015, should be expanded to cover all forms of inter-country direct adoptions. This interpretation would advance the best interest of the child whose family wishes to give him/her in adoption and also ensure that the sanctity of the adoption process is respected and the best interest of the child is scrupulously safeguarded. This Court may mention that in exercise of its writ jurisdiction, it has the power to expansively interpret a provision of a statute in order to achieve the objects and reasons which the law seeks to achieve and to reach injustice 7 wherever it is found. (See Dwarka Nath Vs. ITO, (1965) SCR
536).
86. The respondent-CARA should ensure that the applications for approval/NOC are processed in a child friendly manner and that too, in a strict time frame. After all, incorporation of safeguards should not lead to harassment and delay.
87. This Court suggests that the respondent-CARA should consider the option of appointing a panel of Psychologists, Lawyers as well as NGOs in all the States so that the Child Study Report and Home Study Reports in the case of domestic adoptions, if applicable, in India are prepared scientifically in a time bound manner. The local police as well as Anti Trafficking Unit of the Ministry of Home Affairs should be asked to give their response to the Adoption application within a strict time frame. If response is not received from statutory/government authority within the time-frame prescribed, it should be presumed that said authority has no objection to the adoption."
10. It was also a case of adoption of male child. After referring to various provisions of the Act and the guidelines issued by Ministry of Women and Child Development on 17.07.2015, the Delhi High Court disposed of the writ petition with a direction to CARA to grant NOC to the petitioner therein to take her adopted child namely, M.H., to Canada within a period of two weeks. Ministry of External Affairs/Regional Passport Officer was also directed to issue her a passport within two weeks thereafter.
11. As said, adopting a child may not change the world but for that child, the world will change. Since child is only three years and since the parents have no interest to take the minor child back 8 and having regard to the findings given above, we hold that the Order under challenge is liable to be set-aside.
12. Accordingly the Family Court Appeal is allowed setting aside the order in F.C.O.P. No. 89 of 2021 dated 15.04.2021 passed by the Family Court-cum-VII Additional District Court, Anantapuram. The authorities are directed to grant adoption to the second petitioner. However, necessary steps in this regard be taken by the petitioners at the earliest. There shall be no order as to costs.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR ____________________________________________ JUSTICE VENKATESWARLU NIMMAGADDA Date: 28.04.2022 Ivd...
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THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA FAMILY COURT APPEAL No.59 OF 2021 DATE: 28.04.2022 Ivd