Delhi District Court
Welfare Home For Children vs Zachary Arlyn Wabeke on 11 October, 2019
IN THE COURT OF MS NEENA BANSAL KRISHNA
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
G.P. NO. 22/2019
WELFARE HOME FOR CHILDREN
1B, INSTITUTIONAL AREA,
SARITA VIHAR, NEW DELHI 110076
THOUGH ITS SOCIAL WORKER MRS. ELCY JOLLY
...APPLICANT
VERSUS
1. ZACHARY ARLYN WABEKE
S/O MR. BRENT WABEKE
AGED ABOUT 30 YEARS
CITIZEN OF USA
2. MRS. KATHLEEN ANN WABEKE
W/O MR. ZACHARY ARLYN WABEKE
AGED ABOUT 29 YEARS
CITIZEN OF USA
BOTH R/O 9400, MARYLOU STREET,
ZEELAND, MICHIGAN 49464
USA
THROUGH THEIR ATTORNEY
MS. AARTI SAINI
WELFARE HOME FOR CHILDREN
1B, INSTITUTIONAL AREA, SARITA VIHAR
NEW DELHI110 076.
...PROPOSED ADOPTIVE PARENTS
G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 1 of 20 pages
Date of filing : 22.08.2019
First date before this court : 23.08.2019
Arguments concluded on : 01.10.2019
Date of Decision : 11.10.2019
Appearance : Ms. Diksha Ahuja, counsel for applicant
JUDGMENT
1. Applicant, a recognized Specialized Adoption Agency under the provisions of Section 65, Juvenile Justice (Care and Protection of Children) Act 2015 has brought this application under the provisions of Section 59 (7) of the Act and Regulations 12 (2) and 17 (1) of the Adoption Regulations, seeking declaration of the Prospective Adoptive Parents namely Mr Zachary Arlyn Wabeke and his wife Mrs Kathleen Ann Wabeke, both residents of USA, as parents of child Mohini now named Mohini Marilyn Wabeke (hereinafter referred to as "the said child"), born on 04.02.2018 and permission to take the said child to the country of their residence for bringing up the said child as their natural child. Applicant has also sought directions to the Registrar, SDMC for issuance of birth certificate of the said child and directions to the Regional Passport Office to issue passport to the said child. Since an adoption case is nonadversarial in nature, in view of clause 12(5) of the Adoption Regulations, 2017, nobody was arrayed as respondent or as opposite party in the present proceedings and as mandated by Regulation 12 (6) of the said Regulations, proceedings in this case were held in camera.
G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 2 of 20 pages
2. Upon institution and registration of the petition, I recorded the testimony of Ms. Elcy Jolly, a social worker of the applicant agency as well as testimony of Ms. Aarti Saini, attorney of the proposed adoptive parents.
3. Due to the tender age of the proposed adoptive child, interaction with the child was not possible.
4. After conclusion of proceedings, I heard learned counsel for applicant, who took me through record.
5. The brief facts as pleaded in the application is as follows:
5.1 The applicant agency has been recognized by the Government of NCT of Delhi for rehabilitation of orphaned, abandoned and surrendered children through adoption in accordance with the provisions of the Juvenile Justice Act and the Adoption Regulations. Applicant is also registered as a Child Care Institution (CCI) and the said child being in their care and custody, applicant intends to give the said child in adoption to the proposed adoptive parents (PAPs) in accordance with Section 66 of the Juvenile Justice Act.
5.2 The said child was declared legally free for adoption by G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 3 of 20 pages the Child Welfare Committee, Kalkaji District, New Delhi under the provisions of Section 38 of the Juvenile Justice Act and the said child is registered in the Child Adoption and Resources Information and Guidance System for the purposes of adoption as envisaged under section 56 (1) of the Juvenile Justice Act.
5.3 The PAPs are foreign nationals, residing in USA. The Proposed adoptive parent No. 1 was born on 22.05.1989 and is about 30 years old and the Proposed adoptive parent No. 2 was born on 01.12.1990 and is about 29 years old. The Proposed adoptive parents were married on 29.08.2014 and have no biological child of their own and look forward to adopt a child. The Proposed adoptive father is working in M/s Evergreen Sprinkling, INC as a Service Technician and his gross salary in 2018 was $ 49,503.72 and would estimate his annual income in 2019 to be around $ 50,988. The Proposed adoptive mother is Tree Farm Worker and has worked part time for KP Tree and Nursery LLC for 5 years as a general labourer during the Christmas tree season. Her gross average income is $3103 and they have been found eligible and suitable to adopt by the Authorized Foreign Adoption Agency namely America World Adoption Association, based in USA and has been approved by the concerned Central Authority. The PAPs have been registered in the Child Adoption Resource Information and Guidance System by the Authorized Foreign Adoption Agency / Central Authority namely G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 4 of 20 pages America World Adoption Association and they have been found eligible by the Central Adoption Resource Authority (CARA) as per the criteria laid down in Section 57 of the Juvenile Justice Act and Regulation 5 of the Adoption Regulations.
5.4 The said child was referred to the PAPs online in Child Adoption Resource Information and Guidance System through Authorized Foreign Adoption Agency, America World Adoption Association and was accepted by the PAPs by signing the Child Study Report and Medical Examination Report on 25.06.2019.
5.5 The Central Adoption Agency issued No Objection Certificate dated 13.08.2019 in favour of the PAPs.
5.6 The PAPs have undertaken that they will allow the applicant or functionary of Authorized Foreign Adoption Agency / Central Authority / Concerned Government Department to visit their home in order to carry out post adoption followup to ascertain the progress and the well being of the said child in the adoptive family, as envisaged under Section 59 (11) of the Juvenile Justice Act. The PAPs have also undertaken to upbring the said child as their own and to accord her status, rights and privileges at par with the natural child. The PAPs have given consent to take the said child in adoption, as desired by the applicant.
G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 5 of 20 pages 5.7 Conditions laid down under section 61 (1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 have been complied with. The Central Adoption Resource Authority has issued No Objection Certificate for the proposed adoption.
5.8 Neither the applicant nor the PAPs have any interest directly or indirectly adverse to the said child.
5.9 Hence the present application, seeking that the PAPs be declared as the parents of the said child born on 04.02.2018 for all purposes allowed by law and the PAPs be permitted to take the said child to the country of their origin for her upbringing as their own child and for directions to the concerned authorities to issue birth certificate and passport in the name of the said child.
6. The application was signed, verified and instituted by Ms. Elcy Jolly, working as a Social Worker with the applicant agency. Ms. Elcy Jolly appeared as PW1 and deposed on oath the above mentioned contents of the application and proved on record the necessary documents as Ex. PW1/1 to Ex. PW1/6.
7. The PAPs were represented in the present proceedings G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 6 of 20 pages through their attorney, namely Ms. Aarti Saini, Adoption Officer of the applicant agency. Ms. Aarti Saini appeared in the witness box as RW1 and stated that the proposed adoptive parent No. 1 was born on 22.05.1989 and is about 30 years old and the proposed adoptive parent No. 2 was born on 01.12.1990 and is about 29 years old; that the proposed adoptive parents were married on 29.08.2014 and have no biological child of their own and look forward to adopt a minor child; that the proposed adoptive father is working in M/s Evergreen Sprinkling, Inc as a Service Technician and his gross salary in 2018 was $ 49,503.72 and would estimate his annual income in 2019 to be around $ 50,988; that the proposed adoptive mother is Tree Farm Worker and she has worked part time for KP Tree and Nursery LLC for 5 years as a general labourer during the Christmas tree season and her gross average income is $ 3103 and they enjoy good status and sufficient means of livelihood; that America World Adoption Association Inc. USA, a recognized International Adoption Agency has found the PAPs fit and suitable on the basis of Home Study Report to adopt the said minor child; that it would be in the interest and welfare of the said minor child, if the applicant is permitted to give her in adoption to the PAPs as their daughter. RW1 proved on record the necessary documents as Ex. RW1/1 to RW1/35.
8. During arguments, learned counsel for applicant G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 7 of 20 pages referred to the above described facts and documents in the light of relevant legal provisions.
9. Statutory law related to adoptions is dealt with, amongst other enactments, by chapter VIII of the Juvenile Justice (Care and Protection) Act, 2015, the basic purpose behind the process of adoption being to ensure the right to family for the orphaned, abandoned and surrendered children. Earlier, adoptions were fundamentally governed by the Hindu Adoption and Maintenance Act, the Guardian and Wards Act and guidelines laid down by the Hon'ble Supreme Court of India in the case titled Lakshmi Kant Pandey vs. Union of India, AIR 1984 SC 469, on the basis whereof, Central Adoption Resource Authority (CARA) came into existence. Upon enactment of the Juvenile Justice (Care and Protection) Act, 2015, the Central Adoption Resource Authority was granted legislative recognition and was reconstituted as Central Adoption Resource Authority (CARA) vide Section 68 of the said Act. In the exercise of powers conferred by clause (c) of Section 68 read with clause (3) of Section 2 of the Juvenile Justice (Care and Protection) Act, 2015, Central Adoption Resource Authority framed Adoption Regulations, 2017, which have been notified by the Central Government on 04.01.2017.
10. Sections 56 to 73 of the Juvenile Justice Act, 2015, G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 8 of 20 pages forming chapter VIII of the Act deal with various aspects related to adoption and lay down the mandate of law to operate as the testing parameters to adjudge legality of an adoption. All intercountry adoptions have to be in strict adherence with the provisions of chapter VIII of the Act and a person who takes or sends a child to a foreign country or takes part in any arrangement for transferring the care and custody of a child to another person in a foreign country, without a valid order from the court is liable to punishment under the provisions of Section 80 of the Act.
11. Section 57 of the Act lays down the eligibility of the prospective adoptive parents, to the effect that PAPs must be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing good upbringing to the child; that in case of couple, consent of both spouses for adoption is required while a single or divorced person can adopt subject to fulfillment of the criteria and in accordance with the adoption regulations framed by the authority, though a single male is not eligible to adopt a girl child.
12. Section 59 of the Act, relevant for present purposes, lays down in details the procedure to be adopted for intercountry adoption of an orphan or abandoned or surrendered child. If an orphan or an abandoned or surrendered child could not be placed G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 9 of 20 pages with an Indian or a nonresident Indian PAP, despite the joint efforts of the Specialized Adoption Agency (SAA) and State Agency (SA) within 60 days from the declaration of the child to be legally free for adoption, the said child shall be free for intercountry adoption, provided that children with physical and mental disabilities, siblings and children above 5 years of age may be given preference over other children for such intercountry adoption in accordance with the regulations. An eligible nonresident Indian or overseas citizen of India or persons of Indian origin have to be given priority in intercountry adoption of Indian children.
13. Person(s), who is or are PAP(s) living abroad, irrespective of their religion, if interested to adopt an orphan, 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 the country of their habitual residence in the manner as provided in the Adoption Regulations. The Authorized Foreign Adoption Agency / Central Authority concerned shall prepare a Home Study Report of such PAPs and upon finding them eligible, will sponsor their application to the authority for adoption of a child from India. Upon receipt of such application of PAPs, if the authority finds the PAPs suitable, it will refer the application to one of the SAA where children legally free for adoption are available. The SAA shall match the legally free for G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 10 of 20 pages adoption child with the PAPs and send the Child Study Report and the Medical Report of the child to the PAPs, who may accept the child and return the Child Study Report and Medical Report, duly signed by them to the said agency. Upon receipt of acceptance of the child from the PAPs, the SAA shall file an application in the court for obtaining the adoption order in the manner as provided under the Adoption Regulations. On receipt of certified copy of the court order, the SAA shall send the same immediately to the authority, State Agency and PAPs and obtain passport for the child. The authority shall intimate about the adoption to the immigration authorities of India and the receiving country of the child. The PAPs shall receive the child in person from the SAA as soon as the passport and visa are issued to the child. The Authorized Foreign Adoption Agency or Central Authority concerned shall ensure the submission of progress report of the child in the adoptive family and shall be responsible for making alternate arrangement in case of any disruption, in consultation with the authority and concerned Indian Diplomatic Mission.
14. Section 61 of the Juvenile Justice (Care and Protection of Children) Act, 2015 lays down that before issuing an adoption order, the court shall satisfy itself that the adoption is for welfare of the child; that due consideration has been given to the wishes of the child, having regard to the age and understanding of G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 11 of 20 pages the child; that there has been no monetary transaction or reward in consideration of the adoption, except by way of adoption fees or service charges or child care corpus, as contemplated by the Adoption Regulations.
15. The Specialized Adoption Agencies (SAA) derive their existence from the recognition granted by the State Government in accordance with the Adoption Regulations vide Section 65 (1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 for the purposes of rehabilitation of orphan, abandoned and surrendered children through adoption and noninstitutional care. It is the duty of SAAs to get an orphan or abandoned or surrendered child declared legally free for adoption from the concerned Child Welfare Committee and also to complete the Home Study Report of the PAPs and to move application for obtaining adoption order from the court within stipulated time. Failure on the part of SAAs in fulfilling the said duties entails punishment and derecognition, as contemplated by Section 65 (4) of the Act.
16. Section 66 of the Juvenile Justice (Care and Protection of Children) Act, 2015 contemplates that all the institutions registered under the Act shall ensure that all orphan or abandoned or surrendered children under their care are reported, produced and declared legally free for adoption by the Child G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 12 of 20 pages Welfare Committee.
17. In that regard, Section 38 of the Act lays down the procedure for declaring a child legally free for adoption. In case of an orphan and abandoned child, the Child Welfare Committee is under a duty to make efforts for tracing out the parents or guardian of the child and if after such enquiry, it is established that the child is either an orphan or abandoned, the Committee shall declare the child legally free for adoption and such a declaration has to be made within a period of two months from the date of production of the child aged upto two years and within four months for the child aged above two years. In case of a surrendered child, the SAA or the child supervising authority where the child has been placed by the Committee on an application for surrender, shall bring the case before the Committee immediately upon completion of two months of surrender, as contemplated by Section 35 (3) of the Act and the committee shall declare the child legally free for adoption.
18. Falling back to the present case, as mentioned above, the said child namely Mohini now named as Mohini Marilyn Wabeke is in care and custody of the applicant Welfare Home for Children, which is recognized as SAA and the said child has been declared legally free for adoption by the Child Welfare Committee; on the other hand, the PAPs are foreigners residing in USA and on G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 13 of 20 pages the basis of Home Study Report, they have been found eligible and suitable to adopt a child and their proposal to adopt a child from India has been recommended by the Authorized Foreign Adoption Agency, namely America World Adoption Association Inc. As also mentioned above, the reference of the said child has been accepted for adoption by the PAPs by way of signing the Child Study Report and Medical Examination Report and Central Adoption Resource Authority has issued No Objection Certificate.
19. PW1 and RW1 have brought on record the necessary documentary evidence, as follows.
19.1 Ex. PW1/1 is the Certificate issued by the Child Welfare Committee, Kalkaji District, New Delhi, declaring the said child Mohini now named as Mohini Marilyn Wabeke in care of the SAA namely Welfare Home for Children, legally free for adoption. Ex. PW1/2 is the No Objection Certificate dated 13.08.2019 issued by Central Adoption Resource Authority to the effect that there is no objection to the authority if the said child namely Mohini now named as Mohini Marilyn Wabeke is given in adoption to the PAPs namely Mr Zachary Arlyn Wabeke and his wife Mrs Kathleen Ann Wabeke by the applicant. Ex. PW1/3 is the Child Study Report prepared and signed by Ms. Aarti Saini. Ex. PW1/4 is the Medical Examination Report of the said child. The Child Study Report Ex.
G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 14 of 20 pages PW1/3 and Medical Examination Report Ex. PW1/4 have been duly signed by the PAPs, certifying that they have understood the contents of the said reports and are willing to accept the said child as their adopted child. Both the said reports Ex. PW1/3 and Ex. PW1/4 are duly supported with apostle and are notarized. Ex. PW1/5 is the photograph of the said child. Ex.PW1/6 is the Registration / Recognition Certificate of the applicant society issued by the Government of Delhi.
19.2 The social worker of the applicant, who is the duly constituted attorney of the PAPs appeared as RW1 and proved on record the Power of Attorney executed by PAPs in his favour as Ex.RW1/1; undertaking of the Sponsoring Agency America World Adoption Association is Ex.RW1/2; Foreign Agency's Affidavit, Letter of Foreign Agency Enlistment from Central Adoption Resource Authority, Foreign Agency's License are Ex.RW1/3 (colly); Letter Article for child Mohini is Ex.RW1/4; Acknowledgment of Child Study Report is Ex.RW1/5; Undertaking given by the Adoptive Parents is Ex.RW1/6; Undertaking by Adoptive Parents regarding Medical Needs of the child is Ex.RW1/7; Affidavit of Parents Regarding Name Change of Child is Ex.RW1/8; Declaration of Willingness is Ex.RW1/9; Photographs of Family/Home of the Adoptive Parents are G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 15 of 20 pages Ex.RW1/10 (Colly); Home Study Report is Ex.RW1/11; Proof of the Address of the Proposed Adoptive Parents are Ex.RW1/12 (Colly); Birth Certificate of proposed adoptive parents are Ex.RW1/13 and Ex.RW1/14; Passport copy of proposed adoptive parents are Ex.RW1/15 and Ex.RW1/16; Marriage Certificate is Ex.RW1/17; Motivation to Adopt the child is Ex.RW1/18; Childcare Arrangement Letter is Ex.RW1/19; Special Undertaking from a Relative is Ex.RW1/20; Child Welfare Report Agreement is Ex.RW1/21; Attestation of Personal Conditions and Declaration of Sending Progress Report is Ex.RW1/22; Police Clearance of proposed adoptive parents are Ex.RW1/23 and Ex.RW1/24; Psychological Evaluation Report of proposed adoptive parents are Ex.RW1/25 and Ex.RW1/26; Declaration and Attestation Concerning State of Health of proposed adoptive parents are Ex.RW1/27 and Ex.RW1/28; Letter confirming infertility of Mother is Ex.RW1/29; Joint Financial Declaration of proposed adoptive parents is Ex.RW1/30; Employment Letters of proposed adoptive parents are Ex.RW1/31 and Ex.RW1/32; Income Tax Return Form of proposed adoptive parents are Ex.RW1/33 (Colly); Letter from Bank is Ex.RW1/34; and Reference letters are Ex.RW1/35 (Colly).
20. As mentioned above, before issuing adoption order, this G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 16 of 20 pages court has to satisfy itself that adoption is for welfare of the said child Mohini now named as Mohini Marilyn Wabeke; that due consideration has to be given to the wishes of the said child Mohini now named as Mohini Marilyn Wabeke; and no monetary transaction or reward in consideration of the adoption is being undertaken.
21. As regards welfare of the said child, Home Study Report Ex. RW1/11 reflects that PAP no. 1, born on 22.05.1989 presently aged about 30 years is working in M/s Evergreen Sprinkling, Inc as a Service Technician and his gross salary is $ 44,000 while PAP no. 2, born on 01.12.1990 presently aged about 29 years is Tree Farm Worker and she has worked part time for KP Tree and Nursery LLC for 5 years as a general labourer during the Christmas tree season and her annual gross income is $1700. The social worker who carried out the Home Study Report of PAPs has recorded extensive details of the past history of both PAPs, parental families of both PAPs, finding the said families close knit and successful. After recording extensive details related to personal, professional and family history of PAPs, traversing through their social and family environment, motivation to adopt, health and housing etc, the social worker who carried out the Home Study Report of PAPs concluded that the PAPs are suitable to face upbringing and education of child and they would give all their affection, resources and capacity to help the child grow in G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 17 of 20 pages comprehensive manner since at a personal level PAPs have high level of maturity and stability; PAPs have a very harmonious relationship as a family; PAPs do not suffer from any infectious, contagious or mental illness that could prevent them from adopting a minor; PAPs have a good and stable occupation, which would allow them to bring up child without any difficulty; PAPs live in excellent conditions and environment, favourable for perfect development of a child; and PAPs have no criminal record. Home Study Report Ex. RW1/11 coupled with photographs Ex. RW1/10 (colly) amply establish that PAPs are physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing her a good upbringing.
22. As regards medical needs of the said child Mohini now named as Mohini Marilyn Wabeke, a specific undertaking by proposed adoptive parents and having known that they have opted to adopt that child has also been filed.
23. As also reflected from the above described record, both PAPs have expressed their consent and willingness to adopt the said child Mohini now named as Mohini Marilyn Wabeke after going through the Child Study Report Ex. PW1/3 and Medical Examination Report Ex. PW1/4.
24. Going by the above circumstances, I am satisfied that it G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 18 of 20 pages would be in welfare of the said child Mohini now named as Mohini Marilyn Wabeke to give her in adoption to the PAPs for being brought up as their child.
25. Therefore, the adoption application is allowed and it is ordered that the said child Mohini now named as Mohini Marilyn Wabeke, born on 04.02.2018 be given in adoption to the PAPs Mr Zachary Arlyn Wabeke and his wife Mrs Kathleen Ann Wabeke as their daughter with effect from 11.10.2019 and thereby, henceforth the said child Mohini now named as Mohini Marilyn Wabeke has become the adopted child of the PAPs namely Mr Zachary Arlyn Wabeke and his wife Mrs Kathleen Ann Wabeke, who have in turn henceforth become adoptive parents of the said child Mohini now named as Mohini Marilyn Wabeke. As regards prayer clauses (b) &
(c) of the application, for issuance of birth certificate and passport, necessary steps in accordance with clauses 18 and 36 of the Adoption Regulations, 2017 be taken by the concerned authorities.
26. The petitioner shall file regular reports on post adoption follow up in order to ascertain the progress and well being of the said child to this Court as envisaged under Section 59 (11) of the Juvenile Justice Act for a period of two years from the date of the order.
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27. The requisite certificate in respect of adoption of the said child bearing photographs of the said child and the adoptive parents be issued. In order to maintain confidentiality, as laid down in the case of Lakshmi Kant (supra), the entire record pertaining to the present case be placed in sealed cover, not to be opened without permission of the court and the entire sealed record be consigned to record room.
Announced in the open court on this 11th day of October 2019 (NEENA BANSAL KRISHNA) District & Sessions Judge South East, Saket Courts New Delhi G.P. No. 22/19 Welfare Home for Children Vs. Zachary Arlyn Wabeke & Anr. Page 20 of 20 pages