Madras High Court
7(1) Of The Adoption Regulations vs Unknown on 29 September, 2021
O.P.No. 409 of 2022 O.P.No. 409 of 2022 KRISHNAN RAMASAMY, J., This Petition is filed under Section 56(4) of the Juvenile Justice (Care and Protection of Children) Act,2015 r/w Regulations 12(2) and 17(1) of the Adoption Regulations, for giving the minor female child, namely, Samyuktha, who was born on 15.07.2021 in adoption to the second and third Petitioners herein and for a declaration that they are the parents of the minor child and also for a direction to the Birth Certificate Issuing Authority to issue a birth certificate for the child within 5 working days from the date of receipt of the application under the provisions of Sub-regulation (5) of Regulation 18 and Regulation 36 of CARA Regulations and also for a direction to the Regional Passport Office concerned to issue Passport to the said child within 10 days from the date of receipt of application, as per Sub Regulation (4) of Regulation 18 and Regulation 38 of CARA Regulations.
2. The facts as culled out from the petition filed by the petitioners, are briefly stated hereunder:
(a) The first petitioner, namely, Bala Mandir Kamaraj Trust, is a https://www.mhc.tn.gov.in/judis 1/18 O.P.No. 409 of 2022 recognized Specialized Adoption Agency under Section 65 of the Juvenile Justice (Care and Protection of Children), 2015 (2 of 2016) by the State Government of Tamil Nadu, for rehabilitating orphans, abandoned and surrendered children through adoption in accordance with the provisions of the Juvenile Justice Act and Adoption Regulations.
The in-country license granted to the petitioner institution by the Government of Tamil Nadu has been renewed on 29.04.2019. The said recognition is valid for five years from 31.12.2018 to 29.12.2023. The first petitioner has no objection in placing the child in adoption as these parents have been matched by the international adoption agency through AFAA (Authorised Foreign Adoption Agency), Children's Home Society, Minnesota in Online process. The first petitioner is a registered child care institution, which is having the care and custody of the minor female child Samyuktha.
(b) The minor female child Samyuktha born on 15.07.2021 currently about 11 months old, was surrendered by the biological mother who was minor aged 15 years to CWC and the child was handed over for the care and custody to Bala Mandir Kamaraj Trust, Tamil Nadu on 28.07.2021. The said child was declared legally free for adoption by the https://www.mhc.tn.gov.in/judis 2/18 O.P.No. 409 of 2022 Child Welfare Committee, Villupuram, vide order dated 29.09.2021.
(c) Both the second and third petitioners are citizens of Virginia, USA and they got married on 29.05.2016 and do not have any biological or adopted child and they wanted to adopt a child from India. At present, they are residing at 101, Field Brook Place, Forest Virginia 24551, USA. The second petitioner is working in Birddog Technologies as Partner & Business Development Director and earning gross annual salary of $ 85666 which is equivalent to Indian currency of about Rs.65,10,616/- and the third petitioner is working with Gastroenterology Associates of Central Virginia and earning gross annual salary of $ 40,000 which is equivalent to Indian currency of about Rs.30,40,000/- They believe that they have much to offer a child, including their home, love and ability to financially care for a child.
(d) The second and third petitioners stated that they registered for adoption Online with CARA through Authorised Foreign Adoption Agency (AFAA), Children's Home Society of Minnesota, USA. Home Study Report was conducted and report was prepared by AFAA. Through Online system of the matching as per new CARA guidelines 2015, minor child was matched Online and the second and third https://www.mhc.tn.gov.in/judis 3/18 O.P.No. 409 of 2022 petitioners accepted to adopt her on 31.01.2022 by signing the declaration of willingness to adopt the minor child.
(e) The petitioners have signed the Child Study Report and Medical Examination Report pertaining to the minor child and all the relevant documents pertaining to the second and third petitioners, viz., income certificate, marriage certificate are filed along with the petition.
(f) The Government of India Central Adoption Resource Authority (CARA ) has issued No Objection Certificate on 14.03.2022 for giving in adoption the minor female child to the second and third petitioners herein.
(g) The prospective adoptive parents have undertaken to submit post-adoption follow up to ascertain the progress and well-being of the child in the adoptive family, as envisaged under Section 59(11) of the Juvenile Justice Act. The second and third petitioners have also undertaken to up-bring the above named minor female child Samyuktha as their own child and to accord the same status/rights/privileges to the child above named at par with the natural born child.
(h) The conditions laid down in Section 61(1) of the Juvenile Justice Act have been complied with in this adoption case. https://www.mhc.tn.gov.in/judis 4/18 O.P.No. 409 of 2022
(i) The givers and takers have no interest directly or indirectly adverse to that of the minor child.
(j) The above named minor female child is residing within the legal jurisdiction of this Court and hence, this Court has jurisdiction to pass Adoption Order as per the provisions of Sections 2(23), 59(7) and 61 of the Juvenile Justice Act.
(k) The second and third petitioners understand that the adopted child shall become their lawful child with all rights, privileges and responsibilities that are attached to a biological child.
(l) The second and third petitioners have not filed any other application for adoption of the above named minor child Samyuktha in any other Court of Law.
3. Hence the petitioners have filed the present O.P. for the reliefs stated supra.
4. In order to prove the case, the first petitioner Ms.Chitra Krishnan, who is working as Social Worker in the first petitioner Trust is examined as P.W.1 and marked Exs.P-1 to P-21. Ex.P1 is the Photocopy of the Power of Attorney given dated 19.08.2015 (compared with the original); Ex.P2 is the Photocopy of the General Power of Attorney dated https://www.mhc.tn.gov.in/judis 5/18 O.P.No. 409 of 2022 29.04.2021 (compared with the original); Ex.P3 is the photocopy of the Certificate of recognition by the State Government dated 29.04.2019; Ex.P4 is the original deed of surrender dated 28.07.2021; Ex.P5 is the original order dated 28.07.2021 for the custody of the child; Ex.P6 is the original Child Welfare Committee Clearance dated 29.09.2021; Ex.P7 is the original Child Study Report dated 06.11.2021; Ex.P8 is the original Medical Examination Report dated 05.11.2021; Ex.P9 is the photocopy of the no objection certificate issued by CARA dated 14.03.2022 (compared with the original); Ex.P10 is the original Home Study Report dated 19.04.2021; Ex.P11 is the original marriage certificate of the second and third petitioners took place at Common Wealth of Virginia, USA; Ex.P12 is the original certificate of the Medical Fitness of the second petitioner (adoptive father) dated 26.04.2021; Ex.P13 is the original certificate of the Medical Fitness of the third petitioner (adoptive mother) dated 26.04.2021; Ex.P14 is the original employment and income proof of the second and third petitioners (adoptive parents); Ex.P15 is the original police clearance dated 24.04.2021 in respect of the second petitioner; Ex.P16 is the original police clearance dated 24.04.2021 in respect of the third petitioner; Ex.P17 is the original letter https://www.mhc.tn.gov.in/judis 6/18 O.P.No. 409 of 2022 of consent and declaration of willingness of the adoptive parents; Ex.P18 is the notarized copy of the Passport of the second petitioner; Ex.P19 is the notarized copy of the Passport of the third petitioner; Ex.P20 is the original undertaking of the sponsoring agency dated 08.02.2022; Ex.P21 is the photograph of the minor child Samyuktha along with compact disc.
5. On consideration of the above evidence and also keeping in mind that the minor female child was surrendered and was declared free for adoption by the Child Welfare Committee, I am of the view that it is in the paramount interest of the child that this Petition should be allowed.
6. The right of the couple to adopt a child is a constitutional right guaranteed under Article 21 as the right to life includes those things which make life meaningful. The orphaned, the abandoned, the destitute and/or similarly situated child has the right to life, which is constitutional right guaranteed under Article 21 of the Constitution of India. Once such a right has been traced, the child cannot be denied the right to be adopted. In fact, in order to restore the family life to a child deprived of his or her biological family, the concept of adoption has been https://www.mhc.tn.gov.in/judis 7/18 O.P.No. 409 of 2022 considered the best means.
7. When this Court is the final authority to nod for inter-country adoption, virtually, it has become the guardian of the child and thereby, a duty is cast upon this Court to probe into the matter as to whether the adoption procedure has taken place properly and also see that the child would be safe in the hands of the prospective adoptive parents till the child attains majority. The desire of the adoptive parents to get a child on adoption is rather different from having intention to get an adopted child. No one can expect the real intention behind the adoptive parents to get an adopted child. If their intention is clear and good, then the child is so lucky, if not, he starts to curse his fate and his biological parents, who abandoned him/her heartlessly.
8. Having regard to the children enactments and in the interest of welfare of the abandoned children, this Court has no hesitation to give nod for adoption as sought for in the present petition under the impression that the children who are permanently separated from their biological parents, will become lawful children of their adoptive parents https://www.mhc.tn.gov.in/judis 8/18 O.P.No. 409 of 2022 with all rights, privileges and responsibilities that are attached to the biological children, for which, the adoptive parents have also agreed to do so.
9. In a civilized society, welfare of a child has got the utmost importance. If welfare of a child is ignored, the same would destroy the entire fabric and future of the civilized society. This Court's endeavour and paramount concern is to ensure the adopted child's welfare after adoption all along till he/she attains majority and that his/her life is free from fear and that he/she grows up in peace. In some adoptions, where already the prospective adoptive parents were having their biological children and despite the same, still they are showing interest to have an adopted child. No doubt, the desire to have an adopted child is laudable, but the adoptive parents shall act as biological parents and provide the best to their adopted children and shape their adopted child as a good citizen of the country.
10. Regulation 19(1) of the Adoption Regulations, 2017 provides follow-up of progress of adopted child by Non-Resident Indian, Overseas https://www.mhc.tn.gov.in/judis 9/18 O.P.No. 409 of 2022 Citizens of India and foreign prospective adoptive parents. Clauses (1) and (7) of Regulation (19) are relevant and the same are extracted as under:
(1) The Authorised Foreign Adoption Agency or the Central Authority or Indian diplomatic mission or Government department concerned, as the case may be, shall report the progress of the adopted child for two years from the date of arrival of the adopted child in the receiving country, on a quarterly basis during the first year and on six monthly basis in the second year, by uploading online in the Child Adoption Resource Information and Guidance System in the format provided in Schedule XII along with photographs of the child.
(2) to (6) ... ... ...
(7) The prospective adoptive parents shall furnish an undertaking to the effect that they would allow personal visits of the representative of Authorised Foreign Adoption Agency, the foreign Central Authority or Government department concerned, as the case may be, to ascertain the progress of the child with the adoptive parents or family at least for a period of two years from the date of arrival of the child in the receiving country. https://www.mhc.tn.gov.in/judis 10/18 O.P.No. 409 of 2022
11. From a perusal of the above, it is clear that in the case of inter- country adoption, it is made mandatory only for a period of two years for the Authorised Foreign Adoption Agency or the Central Authority or Indian Diplomatic Mission or Government Department concerned, as the case may be, to report the progress of the adopted child from the date of arrival of the adopted child in the receiving country on a quarterly basis during the first year and on six monthly basis in the second year and the prospective adoptive parents are under obligation only for a period of two years to allow personal visits of representative of Authorised Foreign Adoption Agency, the foreign Central Authority or Government department concerned, as the case may be, to ascertain the progress of the child with them from the date of arrival of the child in the receiving country.
12. Therefore, in the absence of any statutory provision to monitor the child beyond two years from the date of adoption, this Court is of the view that it would be appropriate to direct the child welfare authorities to report progress of the adopted child from the date of arrival of the https://www.mhc.tn.gov.in/judis 11/18 O.P.No. 409 of 2022 adopted child in the receiving country along with detailed educational report and medical report of the adopted child through out till the child attains majority.
13. In the light of the above discussion, the Original Petition is ordered on the following terms:
(i) The second and third petitioners are hereby appointed as natural guardians/parents of the minor child Samyuktha, whose date of birth is 15.07.2021, and they are hereby declared as the parents for the person of the said minor child and the second and third petitioners are permitted to take the child to their residence for up-bringing the child as their own child with the legal status of the biological child with all the rights of succession and inheritance.
(ii) The Birth Certificate issuing Authority is directed to issue Birth Certificate for the said minor child, within five working days from the date of application thereof, as per the provisions of Regulation 36 of the Adoption Regulations, 2017.
(iii) The Regional Passport Authority concerned is directed to issue Passport of the said minor Child within 10 days from the date of https://www.mhc.tn.gov.in/judis 12/18 O.P.No. 409 of 2022 application as per the provisions of Regulation 38 of the Adoption Regulations, 2017.
(iv) The Authorised Foreign Adoption Agency or the Central Authority or Indian Diplomatic Mission or Government Department concerned, as the case may be, are directed to report the progress of the adopted child from the date of arrival of the adopted child in the receiving country on a quarterly basis during the first year and thereafter on six monthly basis along with detailed educational and medical reports of the adopted child through out till the child attains majority, by uploading Online in the Child Adoption Resource Information and Guidance System in the format and also file the same before this Court.
v) The adoptive parents are hereby directed to furnish an undertaking to the effect that they would allow personal visits of the representative of Authorised Foreign Adoption Agency, the foreign Central Authority or Government department concerned as the case may be, on a quarterly basis in every year till the child attains majority and co- operate them to ascertain the progress of the child as regards his/her health, education and convenience/adjustment in the adoptive family.
vi) The concerned representatives of Authorised Foreign Adoption Agency, the foreign Central Authority or Government department https://www.mhc.tn.gov.in/judis 13/18 O.P.No. 409 of 2022 concerned, as the case may be, are directed to make surprise personal visits of the residences of the adoptive parents on quarterly basis in every year till the child attains majority and ascertain the progress of the child as regards his/her health, education and convenience/adjustment in the adoptive family and upload the inspection reports through Online in the Child Adoption Resource Information and Guidance System in the format and also file the same before this Court.
(vii) The adoptive parents are directed to furnish an Undertaking after the child in adoption to the effect that the child will inherit all moveable and immoveable properties as their inheritor as are available to their biological children.
29.08.2022 suk https://www.mhc.tn.gov.in/judis 14/18 O.P.No. 409 of 2022 KRISHNAN RAMASAMY, J., suk O.P.NO.409 OF 2022 29.08.2022 https://www.mhc.tn.gov.in/judis 15/18