Karnataka High Court
Maria Chaya Schupp, Aged About 32 Years vs The Director General Of Police ... on 14 October, 2009
Equivalent citations: 2010 (1) AIR KAR R 332
Author: Anand Byrareddy
Bench: Anand Byrareddy
EN THE HIGH COURT OF KARNATAKA
BANGALORE
DATED THIS THE :L4'"DAY or OCTQEER 4'
A I A
THE HON'BLE MR. JUSTICE-AN_Atlfi
WRIT PETITION No'.il8:o64yOl5"2tl(l6 A
BETWEEN: A
Maria Chaya Schupp, A A ._ .
Aged about 32 years, _ A
A German National, I _.
Having permianerltlnaddressn as .
o1enwaIdstr.5,6430? D'ie,bur'g,.
Germany, 'l'eleplto_I1e.No'.0O49f6.07_l ,5 l 483,
Repreéeiited ..l:i5y her"f,Co_IISt«i,t'uted Attorney
Smt.GeetaMerioti;..,,y'l ' .
Resid£ngVat~ 103', Kir.ar"1',«
25, Haudi'n.._Rcad,l Ulsoot';
Bangalore--4Z.., 'A " V' ...PETITIONER
il l. * If ayna Kothari, Advocate)
l. The Director General of Police (Karnataka)
"Bangalore.
l The Sub Inspector of Police,
Ulla} Police Station,
Ullal~5F/5200,
. "g»,;»V . A
6
Mangalore( Dakshina Kannada District)
3. The Child Welfare Committee (Ulial)
Mangalore,
Represented by its Chairperson,
4. The State of Karnataka, _ - V .
Department of Women and Child Welfarei.' -- '-- _ X
M.S.BuiIdi.ng, U '
Bangalore, S
Represented by its Principia-1. Secretary; V
5. Society for Sisters of V' _
Nirmala Social Weilpfare-l_Centre',--._ _' » " ' ~ r _
UIlal~575O20, ' S 3' "
Mangaloreg, = _ pg "
Representedjby its Secretary '.* , , ..___HRESPONDEN'l"S
(By " «ltioviernment Pleader for
Respondents; .1j7t_o 4;'; Ad_vCcate, _
Shri.G.r'L.Vishvvaria.tli; .A"d--v_oe-ate" for Respondentj)
This filed under Articles 226 and 227 of
the ;Constituti-oniof India praying to direct the nature of
M_a'1idar_r1'usVp_against,.._t_he respondent.2 and 3 directing them to
investigate_ into the complaint of the petitioner against the
. V .respogn'dei1t,'5w_ar:d other perpetrators and produce all records
.perta.ini'nyg~v.,_to~,fthe petitioner's biological mother before this
Hon'ble_ Caryl;-t by taking cognizance of the complaint lodged
with thegre'spondent,2 and 3 and etc.,
This petition having been heard and reserved on
26_.Q.8.2009 and coming on for pronouncement of orders this
day, the Court delivered the following: -
3
ORDER
Heard the Counsei for the parties.
2. The facts of the case are as foilowsz The petitioner is a German.<1'1ati-onai-'uandiiis/saidto the 9 residing with her adoptive parents in'"G_ei-'niany.i" '~ . «. "
The petitioner claims ihai..gs;..3 chiid'awas an inmate of V the institution known as 'SocietymforiSisters of Charity N irinaia Social Welfare Centre, Resp_oiid_en:t n'o,i5'-iiiere-in. It is a Child Welfare /\g€?fl(fiy?i:,~i:,:i~ that she recoilects haVing'iigro'w'.nifriip a'ft4iiithe'»said centre. It is said that when the petitioner was si.>ghy'earsi'o1d;'«She was given up for inter--country adoration by 'then Resporsdent no.5 -- institution. She is said to i have'. iriwadoption by Shri Wolfgang Schupp and A of Germany in March 1981. They had taken the""'assistai1Cie of one Smt.Carla Wiedeking and her Adoption i it i V Age_ncyiiiM/S Pro infante, in Germany. % furnished to her adoptive parents by the German Agency Pro Infante -- prior to her adoption.
3. It is the petitioner's contention that she retrospect that respondent no.5 has a strong nexus:vvith,o1ie'lSlii'i Maxim Lobo, a practicing Advocate "w.hfloi._ha;d freitired'--7asi."a District and Sessions Judge, who specialised Inte'r--c'our1try-..p adoptions. And it is evident thataghri Lobohad engineered and instituted proceedingsvinra at._VMiia-durai to enable the petitioner to be adopt_ed._ a willing impersonator a}falsei:'~and_ ri1is_l_eadi'ng"pe'tition. There is no Deed R.e1inc;u:sh.r:r1°enit"he1' biological mother giving up the petitioneriiin"adoption: " petitioner's efforts to ascertain whctherithere \v'as.i.nd_eed such a relinquishment deed have not ' heen. gfrttitfu'l»t.either through the German Adopting Agency or through respondent -- Institution.
petitioner on being stone--waiIed by Respondent i."i_AI}0,5i,:.'Which failed to co-operate with her in ascertaining the
-- has approached the jurisdictional Police at Ulla], 5 Mangalore of the refusal by Respondent no.5 to provide her with the information. She has also approached the"Di'rector, Women and Child Welfare, Mangalore in this has been in Vain.
It is therefore the petitioner'sicasethat Reisponden.'ti'1'1o.5-..g is clandestinely and diabolicalli"engage'd.i_ in young' children for inter~co1in't-ry lflthroughiiiiunscrupulous elements and institutionsgy:ainoiii_li1i'hg.,tl§ in Children. The search for details of her mothervmhasi isieirieral news papers.
she has psychological reasons for the tii*g_ei to iili<;inovti{_ her biological mother. The g_ petitionei' is not ti1e..___fir.st to come in search of one's roots. It is .t.he=Vpetitionerfi-. case that there are regular news reports of peoiple the petitioner who have successfully re-united with fiieir biological parents. A person's right to know of one's i' biological parents is well entrenched in law in most civilized V. ..-.couatries around the world.
3 It is the petitioner's contention that Respondent__no.5 is feigning ignorance of the knowledge of the bio1ogica§'_rniotghier..of the petitioner -- oniy in order to cover up its"-.nefariiot'isi iiiegal role in kidnapping and placing the A_petitioner__for"iintei"e country adoption. It is in this background thatjthe present--..g petition is fiied.
4. The Counsei' that there is inaction on the part of not Carrying out further cornpiaint and not taking __a_n)i xbto iiecords pertaining to the petitidneris' hie'1'i.hlio1og'ica1 mother as weil as the mode adopted ii1«.__respeiiCt_ of " adoption. The petitioner is thus de*pf«ived herii'ight.._to secure valid information and hence the Li .interVer1ti'on'of" this Court is warranted. i' It_._iSc:i1..v_*iiurther contended that the stance of the above respoiide-nts that the reievant records are confidential infditimation and that uniess appropriate orders are obtained V. ....from a competent court ~--~ the same cannot be provided runs 6 counter to the dictum of the apex. Court in the case of Lakslzmikanr Pandey vs. Union of India, (1984) 2 SCC 244. Guidelines have been issued in the said decision to..re.gu.late inter-country adoption of Indian chiidren. acted in violation of the same and hence__reqnires'4u '' to book. I I A I I I I It is in respect ofg viiei4gg"p.ractices..inyolvingchildreng' indulged in by Institutions such that the apex Court has time hand' the need for scrupulously' in Lakshmikanr Pandegripin AIR 1987 so 232, AIR 1992 so
118. Itlxis_Vconternpllatleohthat the inaction of the respondents nQ'£"13":~tO._:".45~.'.W0fi1'd"~- .... result in permitting trafficking in inter- 'oy Institutions such as Respondent no.5 ---- in grosis violation of Article 23 of the Constitution of India. l' Itwis contended that the denial of information to the C' pe.titioner, though a German Citizen, is a denial of her right to 3 life as understood by the apex Court in its interpretation of the tenor of Article 2l of the Constitution of India. It is also contended that the petitioner believes be a Hindu and Respondent no.5 which was awar(n0f thel has acted contrary to Section 9 of il_l?iinvdi1_ Maintenance Act, 1956.
5. The Counsel for the has placedlextensive material pertaining to know her origins, in support' of lliAiid'l".t.iierefore, seeks a direction tqlflfjvtestigate into the complaint of the ipetitioneinggaiilsll'Respondent no.5 and others involved and to probe theirl'involVelng~ent in giving up children for inter- » 5 co1n¥tryéd0ptioh.si sssss - .
no.5 has entered appearance through Connsel has filed statement of objections to contend that the allegations in the petition are vague and fanciful. it It is stated that respondent no.5 is recognized by the _,,_l.\-llinistry of Social Eustice and Empowerment, Government of india, aChild Welfare Agency recognised forinter-country 8 adoption. It is stated that prior to 1984, no formal recognition or licence was required by Institutions or licence was by Institutions to engage in adoption work. That ordinarily a child was jsurriendered .;byV:"an Vtlniweid. mother or destitute parents _ in fav.our._ of at;.l:Ii1stitu,tiion.l'--.. Similarly, infants abandoned be brought to such Institutions Enquiries wouid be made wherever. )7/ééasons for such surrender -- maintained. The chi1dren__were.toiadoptive parents in India and abroad "I given in adoption only after obtaining ne.cessary.orde'i's a competent District Court. Prior to --_ obtaini,ngga document of surrender was not niandatory; 'here was no statutory enactment providing for ado_otion_ oiiliidian children by foreign parents, except the lW.,provisio_ns of the Guardians and Wards Act, 1890. However, in Kant Pcmdey's case, the apex Court has iaid down 3 I2, duly informed of this position when she made enquiries with Respondent no.5, however, the petitioner not being"s.at«isfied had obtained a search warrant through the Poiicé' "
respondent apart from pub1icizing"her~«:iaim _wjide'ryV in} the media. Respondent No.5 therefore asserts .t_hat~it~ information in respect of the petitioner L' .__'i"'he"'.=pe.titioner has 5 insisted on examining' Respondent no.5 in respect of _ other permitted. The petitioner is hence not entitied the absence of material evidence -5 respondent no.5 was in fact involved Rinpiithewii aiie;ged:_"_.'ti1iega1 adoption of the petitioner. i~rp»%.<ev¢r, _this'"court.vhaving directed Respondent no.5 to V .produce:_'records reiating to children who were staying at the to 1981, Respondent no.5 had produced copies of ceit.a_in records, nameiy, A3'! 55 * a.--)[Extract of the Case History Register of Creche for the period 1.4.1.986 to 23.1.1995 Z
b) A Register of Baptisms
c) The Admission Book of Women from 14.1.1983
d) Medical records of some children from The petitioner had thereupon""sought..p for jiidvirecitioin respondents 1 and 2 to carry out a's_earch of ti*ie'pvre~ni1'se"s.pof., Respondent no.5 for the re'iei/'ant records'---.? sirtceiiiall the records produced as above Were i'not.relevant they did not pertain to the perio.d.._,:'that'i._the 'petiitioher stayed at the Instituti031.§--.,..
this court directed the fifthsrespondentijto the petitioner to inspect the rgecordsidrelatiingiitoithervheing handed over to the custody of Wspoiiaeiit and making over her custody to one I the petitioner in 0318/1981 before the District Judge, Madurai.
it Accordingly, an inspection has been conducted on it 28.2.2009. The petitioner however, complains there was no 3 P4' progress as respondent no.5 had not furnished the complete records but only selective records and hence the petitioner is yet aggrieved.
In the above circumstances, the _petiti0Vner"'hav'ing ._ pursued her quest to trace her origins.with-teailsyilngle-emindedi devotion and having approached this,Co111't ausa'.ias_t_Hreslortiis_i' ; not to be spurned on _technicalit'i-es, or even a question of jurisdiction. In this regard,l'--t_hédeflfort':l the counsel for the petitioner, M's.K.othari" ' .llpl;3CV_irig ..;pb'efore this court in Europetandf-resear*cgh'wnaterial, leave no doubt that the petitiorier" is lseelcingdlto enforce a right which is well V_~ré.cogiiised. "The__right to know one's origins is a dimension ' = of_t'h.e'broader right to ascertain and preserve one's identity. l' complex Concept which unsurprisingly has neverlbeen defined legally. In a nutshell, identity is " What * know and what we feel'. it is an organising frame work for holding to--gether our past and our present and it provides 6 some anticipated shape to future life" ~ (See: Sarnantha Besson in an article: Enforcing the child's Right' her Origins).
However, the scope of thf.s"w'1i«t.petitionjiican only be confined to how best this court cVo.u1d._interv.ene"'to petitioner in her search and whether directions-= issued to any of the respondents ~-petitionerjbeing able to reach her goal. sought to be raised, of child the need for better safevgualidspy inter--country adoptions of indiarr addressed.
7. To isumhn_ari'se" facts and circumstances as narrated turn:
it " _ :vpietiti._oner was brought to the Respondent no.5 ~ 'in she was six years old by her mother for her scitooiling, but Respondent no.5 kidnapped her and gave her = adoption to a German couple in Germany by recourse to a petition under the provisions of the Guardians and Wards had disseminated the particulars of the petitionerto the adopting agency Pro Infante of Germany.
In response to the above order dated' Respondent no.5 has obtained a .copy"of_ the I8! 1981 before the Madura.i_Court..pai1d has»'..produ°ced.f't'iief"g same along with Additional 'Statement fof_C)bj'ecti'ons dated 4.8.2009. It is seen' the pe'titi~o_11er~--.was represented by one Smt§eIvau1ra_i before the Madurai '_A.sf:'~peii_ thanp.etition'"the petitioner was abandoned..vwhe5nnshe_was'xTtenhionths old. She was said to have; been custody of 33T3IE-rK6IlI1€t of Madurai'..by thefpresent.petitioner's unwed mother. In those pioceefdings, er1e..S.hri Maxim Lobe, District and Sessions ' .:.II'udgev..4:(Retired.) has acted as the Pewer--of»-Attorney hoider I ford thepacioiptilve parents of the present petitioner.
In a letter addressed to this court by the adoptive 'vfrlfither of the present petitioner -- the Eady has declared that "she is confused by the two versions which are evident from the available record. One version was that the petitioner's biological mother was dead. The second version the petitioner's biological mother was alive audit: asaé: . who had placed the petitioner in thecu-stody:
no.5 for her schooling.
While an order of a Courts the instance, the petitioner" to cornlplywith the adoption law of_Germany_=thvatethe.7-petitioner was an illegitimatelcriild.' named Miriam, the child' s paternity couldnot ' ., ' The rhaterialldoclilrniergrtsl on which the petitioner places to hol'd«th_at.vRespondent no.5 was the Institution V her custody and therefore being aware of iparticVul.ars.v_ol her birth and the existence or otherwise of her A biol'o,gii%.:al mother are Annexure--B to the application of the V' petitioner dated 29.1.2009 -~ which is an updated document from the records of Pro -- lnfante -~ the German Adoptive 5 $3 Agency which is said to have mediated the adoption of the petitioner which indicates the petitioner's location as Respondent no.5 - institution as well as Annexure«~{Ci thereto wherein the same information is repeated. And Card bearing the seal of Respondent"n.o'_.5..' the V adoptive parents of the g.petitio'n.er",enquiri*ng' ~a'oout'--~,the_ welfare of the petitioner andisigned byonedfiistegr Caroline V Carrera. This docuriient proda_iced--..a1ong a Memo dated 26.8.2009.
ih'i:ti1e..abo:'veVbackgrioiuiidiwhich is but a Vague and inc'onsis'2e11tgi'higstosry'=.of the petitioner's birth and given the sheer ..1a1V)s.eV'of of about three decades in the ._':":;oetitioner hiavingoembarked on her mission of discovering it 'he'r..o'riig'ins' «.-- even assuming that this court could exercise its i' [writ j'ui9i_sdiction over respondent no.5 through the indirect medium of the other respondents, to make a disclosure of fail its records -- the admitted circumstance that there is an order of the District Court of Madurai in GP i8/ 1981 dated 3 £0 18.3.1981, which has attained finality and which has assumed certain facts pertaining to the petitioner and her parentage ~ the same cannot be ignored either*».ib_y_i'the petitioner or by this court. The adoptive pia1'entsi"of't V' petitioner have been party to those 'p'roceeti_in gs thr'oL1iigIi.theiir Power of Attorney holder.
seeking to negate the samei"an'cE~.i11 her ._1ette_i?.= tofthis court V ciairning that she beiie.yesfthetpe.t_it.i'oner's it/iersion which appears to be more anti "rr1ore.vrea}ist;icvibytfthe day is not to be acted upon coiuttf 'V V. '-While'syrripathi.a._i'n--g'with the tnrrnoi}, the petitioner possibiiy i u11dergoi.11'gn§"the petition is dismissed. Sd/-~ HEDGE