Delhi District Court
Sos Childrens Village Of India vs Mr. Spronck Joseph Guy Marie on 5 September, 2016
IN THE Court OF MS. ANU MALHOTRA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
Guardianship Petition No. 01/16
ID No.: 02406C 0215022016
SOS Childrens Village of India,
SOS Upvan Home,
B5/21, Safdarjung Enclave, New Delhi
Through its Social Worker/AR
Ms. Nelofer ........ Petitioner
Versus
1. Mr. Spronck Joseph Guy Marie
S/o Mr. Spronck Pierre Albert Jacques
2. Ms. Schins Marina Leonce Mathilde Ghislaine,
W/o Mr. Spronck Joseph Guy Marie
Both Resident of :
RUE DU CURE 10,
4632 Cerexhe, Belgium
Through their Attorney
Mrs. Vijay Raina, Director,
SOS Childrens Village of India,
A7, Nizamuddin (West),
New Delhi. .......Respondent
Instituted on: 05.07.2016 Judgment reserved on: 29.08.2016 Judgment pronounced on: 05.09.2016 J U D G M E N T This judgment shall dispose of a petition u/s. 59 (7) of the Guardianship Petition No. 01/16 Page 1 of 31 Juvenile Justice (Care and Protection of Children) Act, 2015 filed by the petitioner SOS Children's Villages of India SOS Upvan Home through its Social worker seeking that the minor female child Aarushi born on 15.06.2010 (hereinafter referred to as 'child') be permitted to be given in adoption to the respondents i.e. Mr. Spronck Joseph Guy Marie and Ms. Schins Marina Leonce Mathilde Ghislaine, both Resident of RUE DU CURE 10, 4632 Cerexhe, Belgium (hereinafter referred to as respondent no.1 & 2) as their daughter through their attorney Mrs. Vijay Raina, Director, SOS Children's Villages of India and to permit the respondent No.s 1 & 2 to remove the minor child outside the jurisdiction of this Court for her upbringing to where the respondents reside, they being the resident of RUE DU CURE 10, 4632 Cerexhe, Belgium.
The petition is indicated to have been filed by the SOS Children's Villages of India, SOS Upwan Home, B5/21, Safdarjung Enclave, New Delhi through its social worker and authorized representative Ms. Nelofer, the petitioner being a registered society, registered as a Charitable Organisation running its Orphanage Homes for abandoned/destitute/handicapped children and duly recognized as an agency for placing children in adoption by the Central Adoption Resource Authority (CARA), Ministry of Women and Child Development under the Juvenile Justice Act for giving them in adoption. It has been submitted through the petition that Ms. Nelofer, a social worker has been duly authorized by the petitioner/society to sign, verify and institute the petition and the petition has thus been signed, verified and instituted as such.
Through the petition, it has been submitted that on 20.11.2012, a female child born on 15.06.2010 was found abandoned by Guardianship Petition No. 01/16 Page 2 of 31 the police officials, who handed over the care and custody of the child to the petitioner / society and that the parents of the said child did not come to claim her for a considerable period whereafter the petitioner/society filed an application before the Child Welfare Committee, New Delhi for declaring the child as an abandoned child and free for adoption. It has further been submitted through the petition that the Child Welfare Committee after making inquiry, declared the child as an abandoned child and free for adoption vide certificate dated 01.07.2014 in case No. 1449 dated 02.11.2012 and that the date of birth of the said child was determined by medical examination and the child is free for adoption. It has further been submitted through the petition that the respondent no.1 was born on 11.06.1966 and is now about 50 years old and that respondent no.2 was born on 19.04.1962 and is now about 54 years old and that respondent No.s 1 & 2 are permanent resident of Belgium being its citizens/nationals. It has further been submitted through the petition that respondent no.1 prior to marriage with the respondent no.2, had married to Ms.Nathalie Marie Helene Denis on 06.04.1991 and was divorced on 08.03.2006 and that respondent No.1 from his previous marriage has two sons namely Spronck Pierre born on 27.06.1993 and Spronck Quentin born on 31.01.1998 and that the first male child of respondent No.1 is 23 years old and the second male child is 18 years old, both of whom are enrolled in the Bachelor's Degree in Biology at the University of Liege and the younger child is still living with the respondent No.s 1 & 2 and the elder child has been shifted to his apartment, both the child are from the first wedlock of the respondent No.1 have been told of the plan to adopt a child by respondent No.s 1 & 2 and that the both boys/children are happy and are eager to have a new Guardianship Petition No. 01/16 Page 3 of 31 family member and have welcomed the idea to adopt a younger sister for them by the respondent No.s 1 & 2.
It has further been submitted through the petition that the respondent No.s 1 & 2 herein were married to each other on 14.07.2007 and that they are medically and physically fit and healthy but due to some medical problem, they do not have a biological child of their own and now wish to adopt the child in question to complete their family.
It has further been submitted through the petition that the respondent No.1 is employed as Teacher with Institute D'Enseignement Technique, Don Bosco, 70, Rue Des Allies4800, Verviers, Matr.251/6.329.019 with monthly salary of Rs.3688.00 Euro and the respondent No.2 is employed as a Nurse A1 with St. NikolausHospital Eupen and her monthly gross wage is Euro 4603.53 and that the respondents enjoy high status and sufficient means of livelihood and wish to adopt the minor female child Aarushi as their daughter and have expressed their desire and intention for the same.
It has further been submitted through the petition that the respondent No.s 1 & 2 have forwarded their documents in support of their desire to adopt the minor female child Aarushi born on 15.06.2010 through the recognized agency namely "Enfants de L'espoir, Belgium", who has furnished the necessary undertaking as per directions of the Hon'ble Supreme Court of India, to look after the interest of the minor, in case the respondents failed to do so for any reason whatsoever.
It has further been submitted through the petition that the petitioner received the 'No Objection Certificate' from the Central Adoption Resource Authority, Ministry of Women and Child Development, Guardianship Petition No. 01/16 Page 4 of 31 Government of India to seek permission from the Court to give the minor child in adoption to the respondent under the Juvenile Justice (Care and Protection of Children) Act, 2015.
It has further been submitted through the petition that the respondents after seeing the Child Study Report, photograph and medical report of the child in question, have approved the child in question for adoption and that the respondents have several documents showing their status, employment and family background etc. besides a Power of Attorney in favour of the Director/official of the petitioner and that all the documents are duly notarised/authenticated and the respondents are enjoying good health as per the medical certificate concerning their health which clearly reveals that they do not suffer, nor have been previously suffered from any mental or physical disease or incapacity detrimentally affecting their fitness to have custody of the adoptive child as parents and that the respondents approached the French Adoption Agency "Enfants de L'espoir, Belgium" for adopting the child and that the respondents have been recommended by the said adoption agency which is recognized by Government of India and is competent to sponsor them.
It has further been submitted through the petition that every attempt has been made by the petitioner to place the minor child in the Indian family but no suitable Indian family came forward to adopt the minor child and the Central Adoption Resource Authority (CARA) declared the child for foreign adoption and that the respondents have come forward from Belgium to adopt the minor child in question and have been found most suitable persons for legal adoption of the child and the CARA has issued the No Objection Certificate in favour of the respondents for Guardianship Petition No. 01/16 Page 5 of 31 adopting the child.
It has further been submitted through the petition that as per law, the respondents have undertaken to send a progress report to the petitioner and photograph of the child quarterly for the first two years and half yearly for the next three years until adoption is complete and also undertake to bring up the child according to their status. It has also been submitted by the petitioner that it is in the interest and welfare of the minor male child if she is given in adoption to the respondents and that no person has been appointed as guardian of this child, neither has anyone else been granted permission to adopt the child and that the respondents have no interest adverse to that of the minor child and that the petitioner is satisfied that the adoption of the child by the lady would be in the interest and welfare of the child who would have loving parents and a house to live in and a sense of belonging.
Inter alia, through the petition, it has been submitted that the child owns no property and it is in her interest and welfare if she is placed and adopted in a financial and otherwise sound family where she would have a sense of belonging.
Inter alia, the petitioner has submitted that this Court has jurisdiction over the minor since adoption is permissible in terms of the Juvenile Justice (Care and Protection of Children) Act, 2015, as amended.
It has further been submitted through the petition that the petitioner has its office within the territorial jurisdiction of this Court in terms of the Clause 12 of the Guidelines framed by the Government of India and that this Court has jurisdiction to entertain this petition.
In support of the averments made in the petition, the petitioner Guardianship Petition No. 01/16 Page 6 of 31 has placed on record original documents and affidavits of Ms. Nelofer, a social worker who is the signatory to the petition and of Ms. Vijay Raina, Director of the petitioner i.e. the SOS Children Village, SOS, Upwan Home, both dated 29.08.2016. The minor child was also produced on 29.08.2016 and was examined by the undersigned Presiding Officer in her chamber and the proceedings thus, conducted were recorded and are reproduced as under:
"Examination of the minor child Aarushi without oath in the chamber of the undersigned;
"Q. What is your name?
Ans. Aarushi.
Q. How old are you?
Ans. Six years.
Q. Where do you live?
Ans. B5/21, Safdarjung Enclave. Q. Where have you come today? Ans. Court.
Q. Why have you come to Court today? Ans Kyunki Mai Jaa Rahi Hun Q. Kahan Ja Rahe Ho?
Ans. Apney Ghar Q. Kahan hai aapka Ghar? Ans. Door Hai.
Q. Kiske Pass Jana?
Ans. Mummy Papa Ke Pass Guardianship Petition No. 01/16 Page 7 of 31 Q. Ye Aapkey Haath Me Kya Hai? Ans. Album.
The child has pointed out to persons whom she identified as Mummy and Papa and her two brothers in the Album, though she states she does not know their name.
Q. Are you happy at Safdarjung Enclave? Ans. Yes.
Q. What do you there?
Ans. Khelti Hun Bade Maze Se. Q. Then why do you want to go? Ans. Kyunki Mujhe Ghar Jana Hai. Q. Have you ever met your parents in the Album, Mummy and Pappa and brothers?
Ans. Nahi.
Q. Have you ever spoken to them? Ans. Yes.
Q. What will you do with Mummy, Pappa? Ans. I will play and study. Q. What do you want to become when you grow up? Ans. Rani.
Q. Do you know any poem?
Ans. Yes, Machli Jal Ki Rani Hai, Aam Aam The child has recited these two poems. Q. Do you know any poem in English? Ans. No. Q. Can you write your name?Guardianship Petition No. 01/16 Page 8 of 31
Ans. No. (Ms. Nelofer, Social Worker has been called in, and she states that the child has, just started going to school in March 2016 in nursery.)"
Ms. Nelofer, the authorized signatory and a social worker of the petitioner and Ms. Vijay Raina, the Director of the petitioner were produced as witnesses by the petitioner and were examined on 29.08.2016 as PW1 and as PW2 respectively qua their affidavits submitted on record.
Arguments were addressed on behalf of the petitioner by Ld. Counsel Shri Mohinder Singh and submissions were also made.
It was submitted on behalf of the petitioner through oral arguments addressed that the minor child Aarushi be given in adoption to the respondents who were not present before the Court.
PW1 Ms. Nelofer, Social Worker of the SOS Children's Village of India, SOS Upvan Home who has vouched to the veracity of her affidavit Ex.PW1/A and the averments contained therein as being true and correct to her knowledge and stated that the petition has been filed in relation to the minor child Aarushi aged about 6 years whereabouts of whose natural parents are not known. She further stated that the said child came to them through the police and the child has to go to Belgium and child wants to go to Belgium and that she has never met the respondents and that the child wants to go to her parents.
PW1 Ms. Neloger further testified that the order declaring the child legally free for adoption as being Ex.PW1/1 with the photograph of the child at point A and further testified that the No Objection Certificate was issued by CARA Ex.PW1/2. Inter alia, PW1 testified that the Child Guardianship Petition No. 01/16 Page 9 of 31 Study Report bearing the signatures of Ms. Anita Bharti, Senior Social Worker at point A on the Child Study Report Ex.PW1/3 (Colly) and testified to the apostilled certificate of the medical examination of the child being on the reverse of page 13 and further testified to the apostilled power of attorney of the adopted parents as being page 14 & 15. She further stated that she was not aware of any Indian family being suitable to adopt the child and further stated that families are cleared by CARA for adoption and she had never met the respondent no.s 1 & 2.
The documents i.e. the apostilled certificate of the medical examination of the child, the apostilled power of attorney of the adoptive parents, the Child Study Report are accepted in evidence in terms of the verdict of Hon'ble Apex Court in the Case Laxmi Kant Pandey Vs. Union of India & Other 2010 (12) SCC 735 and directions in paragraph 6 of the said verdict directing the Courts of competent jurisdiction dealing with adoption/guardianship cases to accept documents authenticated by the officers competent to issue the certification by Apostille in the country of their execution as provided and covenanted in the Hague Apostille Convention and taking into account the Apostille certificate No.980515104989968 dated 14.10.2015 in relation to the medical examination of the minor child and the apostille certificate in relation to the Special Power of Attorney executed by respondent no.s 1 & 2 i.e. Mr. Spronck Joseph and Ms. Schins Marina, wife of Spronck Joseph in favour of Ms. Vijay Raina, Director of SOS Children's Villages of India to do all necessary acts for the adoption.
The petitioner further examined Ms. Vijay Raina, Director of SOS Children's Villages of India as PW2 who vouched to the veracity of Guardianship Petition No. 01/16 Page 10 of 31 the contents of her affidavit Ex.PW2/A and this affidavit related to the minor child in question whose natural parents are known to her and this child came to them from the CWC after production before the CWC by the police. PW2 further stated that the child has to go to Belgium and the child wants to go to Belgium and that PW2 had never met the respondent no.s 1 & 2 and that PW2 was aware of the documents that had come through CARA.
Inter alia, PW2 testified that the special power of attorney executed in her favour by the respondent no.s 1 & 2 placed at page no.s 14 & 15 and that the apostille certificate on the reverse of page 15, which certificate bears No.985151014990372 dated 14.10.2015 and thus, the special power of attorney has been exhibited as Ex.PW2/1 in view of the verdict of the Hon'ble Apex Court in the case Laxmi Kant Pandey Vs. Union of India & Other 2010 (12) SCC 735 as already adverted to hereinabove.
Inter alia, PW2 testified to the attested copies of the Passports of the respondent no.s 1 & 2 being duly apostilled with the certificate on the reverse of page 17 and 19 exhibited as Ex.PW2/2 Colly with the copies of the certificate of the Passport being at page 16 and 18 and further testified to the effect that in terms of the judgment of the Family Court, Liege Division dated 27.11.2014, respondent no.s 1 & 2 were found to be mature, tolerant, open, able to educate, available, have an adequate housing as well as good social relations and were suited for international adoption of a child or siblings based on the social enquiry reports made by the Adoption ServiceMinistry of the Belgian French Community and that thus, the two respondents Mr. Spronck Joseph and Ms. Schins Marina were Guardianship Petition No. 01/16 Page 11 of 31 qualified and suited for international adoption of a child or siblings and the request for extension of time to adopt is also indicated to have been allowed vide the said judgment and the translated version of which is placed at page no. 24 to 28 with the translated version of the judgment of the Family Court being Ex.PW2/3. The confirmation from the ACC for entry and stay of the child in Belgium territory being exhibited as Ex.PW2/4 placed at page no.29 of the documents indicates that as per the ACC i.e. Authorité Centrale Communautaire as soon as the adoption is provisionally recognized, a visa with a view for adoption may automatically be affixed on the child's Indian passport and that the child being adopted by the foreigners residing on the Belgium territory, the competent Belgian diplomatic post was also authorized to affix a visa on the child's Indian passport as soon as the adoption was recognized and that the instructions apply to the two respondents whose adoption was being monitored by the accredited adoption body 'Enfants de I'Espoir'. The apostille certificate in relation to the translated version of the permission of grant for entry and stay of the minor child in question at the Belgium territory, is placed on the reverse of page no.29 vide certificate bearing No.9805151014991281 dated 14.10.2015. The police clearance of the respondent no.s 1 & 2 with English translation from French are collectively placed at page no.s 30 to 33 with the apostille certificate on the reverse of page no.33 exhibited as Ex.PW2/5 Colly which certificate indicates that there are no criminal antecedents attributed against the respondent no.s 1 &
2. Inter alia, PW2 testified to the medical certificate of respondent no.s 1 & 2 with the translated versions in English collectively Guardianship Petition No. 01/16 Page 12 of 31 placed at page no. 34 to 45 exhibited as Ex.PW2/6 with the apostille certificate on the reverse of page no.45. The medical examination reports on the record indicate that the respondent no.s 1 & 2 do not suffer from any contagious disease or HIV and are in good physical and mental health.
The testimony of PW2 further stated to the effect that the employer certificate and monthly salary of the respondent no.s 1 & 2 with the translated versions in English exhibited as Ex.PW2/7 placed at page no. 46 to 58 with the apostille certificate on the reverse of page no.s 49, 50, 51, 56 & 58 and the income tax return of the respondent no.s 1 & 2 were placed at page no.s 59 to 81 with the translated versions in English with the apostille certificate on the reverse of page no.s 56 & 57 and collectively exhibited as Ex.PW2/8 Colly.
PW2 further testified to the certificate of ownership of the house by respondent no.1 with the translated versions in English placed at page no. 82 & 83 with the apostille certificate at page no.83 exhibited as Ex.PW2/9. The Bank Certificate of the respondent no.s 1 & 2 with the translated versions in English and the apostille certificate on the reverse of of page no. 85 to 87 were collectively exhibited as Ex.PW2/10 Colly. The documents Ex.PW2/7 Colly, Ex.PW2/8 Colly, Ex.PW2/9 Colly and Ex.PW2/10 Colly, all of which were duly apostilled showed the financial well being of the respondent no.s 1 & 2.
PW2 Ms. Vijay Raina also testified to the take over declaration of the respondent no.s 1 & 2 with the translated versions in English and with the apostille on the reverse of page no.89, placed at page no. 88 to 89, collectively exhibited as Ex.PW2/11 Colly. The take over declaration of the respondent no.s 1 & 2 duly apostilled vide certificate Guardianship Petition No. 01/16 Page 13 of 31 bearing No.9805151014989564 dated 14.10.2015 states categorically to the effect that in order to help their daughter i.e. the minor child in question to integrate into the family, the respondent no.s 1 & 2 plan to spend as much time as they can with her in order to pamper her and teach her some French, so that she can understand what they say and she can express her feelings and that she discovers daily family life and starts learning through play activities with the family and/or with her mother and/or with her father and/or with her brothers and that after they come back with their daughter, respondent no.2 will take some months off and can take 24 annual vacation days and 11 public holidays and plans to take 4 weeks off for adoption and then according to the law, can take 4 months as parental leave and she can stay home full time to take care of her daughter in order to help her to quickly integrate and that as soon as the child arrives, she will already be of the age of going to school and after she is well integrated in their family, she will probably go to the SainteMarie School in Soumagne where the children of respondent no.1 had studied at the primary school and once the child started going to school the presence of the respondent no.2 would no longer be needed at home all day and she may work part time in the hospital and that the respondent no.1 works 28 hours per week at School and in general, respondent no.1 has one day off per week and this year, respondent no.1 is not working on Wednesdays and that respondent no.2 Marina (mother) would be more present but respondent no.1 Joseph (father) would be more present during the school holidays.
The letter of motivation for adoption of the Indian girl child was testified by PW2 to be at page no.s 90 to 93, collectively exhibited as Ex.PW2/12 Colly with the apostille certificate on the reverse of page no.93.
Guardianship Petition No. 01/16 Page 14 of 31Ex.PW2/12 Colly indicates that the respondent no.s 1 & 2 after their marriage want to have a child but respondent no.2 would not naturally conceive and thus, turned to medical treatments and after the first failed attempt, decided to stop in order to preserve the respondent no.2's health and thus, quickly turned to adoption and started their adoption process towards the end of year 2007. Respondent no.s 1 & 2 through the document exhibited as Ex.PW2/12 Colly further stated that their family is ready to welcome the younger girl child and would love and help her to grow in a close and open family and would love her and that the respective families of the respondent no.s 1 & 2 supported their project and so did the parents of respondent no.1 and their brothers and respective sisters as well as their partners. It is further stated that the respondent no.s 1 & 2 wish to adopt a girl child as respondent no.1 already has two sons.
PW2 further testified that the photographs of the respondents with the family members were placed at page no.s 100 to 115 as sent by CARA which PW2 recognized as per record and that the said photographs are exhibited as Ex.PW2/14 Colly. Interalia, PW2 testified to the agreement on child proposal between CARA and the Government of Belgium being at page no.116 with the apostille certificate on the reverse of Ex.PW2/15. The agreement Ex.PW2/15 indicates that the Director of the Adoption Direction-Central Community Authority (ACC) of the French speaking community of Belgium according to the article 3613, 5º of the Belgian Civil Code and to the articles 5 and 17 of the Hague Convention of May 29th 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, agreed on the adoption proposal of the minor child by the respondent no.s 1 & 2 and whose adoption procedure was being Guardianship Petition No. 01/16 Page 15 of 31 supervised by the accredited adoption body 'Enfants de I'Espoir'. The apostille certificate of this translated version in English is placed on the reverse of page no. 116 bearing No. 9805151014991079 dated 14.10.2015. PW2 further testified to the declaration of the respondent no.s 1 & 2 that they would take care of the minor child being placed at page no. 118 with its translated version in English at page no.117 with apostille certificate on the reverse of page no.118, exhibited as Ex.PW2/16 and testified to the undertaking by the sponsoring foreign agency being at page no.s 119 to 120 with apostille certificate on the reverse of page no.s 119 & 120, collectively exhibited as Ex.PW2/17 Colly. The document Ex.PW2/16 i.e. the declaration of the respondent no.s 1 & 2 that they would take care of the minor child categorically states that the respondent no.s 1 & 2 wish to be good parents and plan to have a quiet, harmonious, respectful and altruistic family life and wish that their home is a welcoming place open to others and promise to be good and loving parents to teach the minor child to live in a family and in society with values and objectives that they believe to be important and wish to help her in her life so that the minor child becomes an adult woman both autonomous and responsible. The undertaking of the Foreign Sponsoring Agency Ex.PW2/17 Colly indicate categorically that Director Nathalie Foulon of the Enfants De L'Espoir has made a commitment in the name of the agency that in case of disruption or repatriation of the child or children, the foreign adoption agency would abide by the specific provisions laid down in the Indian Guidelines. The Home Study Report of the respondent no.s 1 & 2 was testified by PW2 to be placed at page no.s 121 to 126 with the apostille certificate on the reverse of page 126 and the same is Ex.PW2/18 Colly. The translated Guardianship Petition No. 01/16 Page 16 of 31 versions of the Home Study Report is placed at page no. 125 to 126 as prepared by the Social Worker Wautelet David who categorically stated to the effect that respondent no.s 1 & 2 always looked natural, close and joyful and they are mature and thoughtful couple and are very enthusiastic to welcome the child from international adoption and for them, the child is already part of their family and has an important place in the family and that respondent no.s 1 & 2 have human educational qualities as well as the parent experience based on the factum that respondent no.1 had two sons from his first wedlock and thus, the foreign sponsoring agency recommended the adoption of an Indian girl child aged between 3 to 6 years and in good health.
The Authorization of the Government of Belgium in favour of the Foreign Adoption Agency was testified by PW2 Ms. Vijay Raina to be placed at page no. 129 to 130 with the apostille certificate on the reverse of page no.130 Ex.PW2/20 and the authorization of CARA in favour of the Foreign Adoption Agency was also testified by PW2 to be placed at page no.131 and exhibited as Ex.PW2/21. The approval of the two sons of the respondent no.1 for adoption of a minor girl of Indian origin was also testified by PW2 to be placed at page no. 132 to 135 with translated versions in English and with the apostille certificate on the reverse of page no.133 & 135, collectively exhibited as Ex.PW2/22 Colly. The certificate issued by the Director, Adoption DepartmentCentral Community Authority (CCA) of the Ministry of the French Community of Belgium, certified that the adoption agency "Children of Hope" headquartered Montigny Street 13 in 6000 Charleroi (Belgium) is accredited by the French Community of Belgium and pursuant to the Decree of March 31, Guardianship Petition No. 01/16 Page 17 of 31 2004 relating to adoption, the organism is authorized to act as an intermediary to children adoption and that the Directorate of Adoption Central Community Authority (CCA) exercises a strict control over the activity of that agency and that the approval is granted until December 31, 2015 and a new approval for 5 years, renewable, is granted from 01.01.2016. The apostille certificate in relation thereto is on the reverse of page no.130 bearing No.9805151014990978 dated 14.10.2015. The Authorization certificate issued by the CARA bearing File No.24/2003 CARA, Certificate No.AFAA01/2015 dated 30.01.2015, certifying that 'Enfants De L'Espoir' was licensed as an Adoption Agency by the ACC of Belgium valid up to 31.08.2017.
PW2 further testified to the effect that the two sons of the respondent no.1 live with their natural mother i.e. the first wife of the respondent no.1 and that there is no child out of the wedlock of respondent no.s 1 & 2 and that thus, the respondent no.s 1 & 2 would be able to take care of the minor child given in adoption wholly and it would be in the interest of the child to be given in adoption to the respondent no.s 1 & 2.
Inter alia, PW2 testified to the effect that respondent no.1 is a Crafts Teacher and respondent no.2 is a Nurse and further stated that she had never spoken to the respondent no.s 1 & 2. PW2 further testified that as the institutional care will always be an orphanage, the child would be better groomed if the child lives with a family and it would be in the interest and welfare of the child. Interalia, PW2 stated that she was not aware of any interest of the respondent no.s 1 & 2 which was adverse to that of the child.
On behalf of the petitioner, reliance was placed by the Ld. Counsel for the petitioner on the verdicts of the Hon'ble Apex Court in the Guardianship Petition No. 01/16 Page 18 of 31 cases 'Laxmi Kant Pandey Vs. Union of India & Other' AIR 1984 SC 469; 'Laxmi Kant Pandey Vs. Union of India & Other' AIR 1986 SC 272; 'Laxmi Kant Pandey Vs. Union of India & Other' AIR 1987 SC 232; 'Laxmi Kant Pandey Vs. Union of India & Other' AIR 1992 SC 118; 'Laxmi Kant Pandey Vs. Union of India & Other' 2010 (4) SCC (Civil) 736.
Reliance was also placed on behalf of the petitioner on the notification dated 17.07.2015 numbered SO 1945 (E) issued by the Ministry of Women and Child Development as the guidelines governing adoption of child, which guidelines govern the adoption procedure of orphan/abandoned and surrendered child in the country from the date of the notification and which guidelines replaced the guidelines governing the adoption of child 2011. The said guidelines refer and draw support from The Juvenile Justice (Care and Protection of Children) Act, 2000 & Rules framed thereunder; Judgment dated 08.02.2013 of the Hon'ble Supreme Court in the case of Stephaine Joan Becker Vs. State and Anr. (Civil Appeal No. 1053 of 2013); Judgment of the Hon'ble Supreme Court in the case L.K. Pandey Vs. Union of India in WP (Crl.) No. 1171 of 1982; UN Convention on the Rights of the Child, 1989; and The Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, 1993.
The Guidelines Governing Adoption of Children 2015 now in force w.e.f. 17.07.2015 define in terms of Section 2 (2) thereof an 'abandoned' child means 'an unaccompanied and deserted child who is declared abandoned by the Child Welfare Committee after due inquiry.' The fundamental principles governing adoption have been Guardianship Petition No. 01/16 Page 19 of 31 provided in Rule 3 of the said guidelines which are as under:
(a) the child's best interests shall be of paramount consideration, while processing any adoption placement;
(b) preference shall be given to place the child in adoption with Indian citizen with due regard to the principle of placement of the child in his own sociocultural environment, as far as possible.
The eligibility of a child for adoption is provided by Rule 4 which says "Any orphan or abandoned or surrendered child declared legally free for adoption by the Child Welfare Committee is eligible for adoption."
The eligibility criteria for prospective adoptive parents is prescribed in Rule 5 as under :
(a) the prospective adoptive parents should be physically, mentally and emotionally stable; financially capable; motivated to adopt a child; and should not have any life threatening medical condition;
(b) any prospective adoptive parent, irrespective of his marital status and whether or not he has his own biological son or daughter, can adopt a child;
(c) single female is eligible to adopt a child of any gender;
(d) single male person shall not be eligible to adopt a girl child;
(e) in case of a couple, the consent of both spouses shall be required;
(f) no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship;
(g) the age of prospective adoptive parents as on the date of registration shall be counted for deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of different age groups shall be as under Guardianship Petition No. 01/16 Page 20 of 31 Age of the child Maximum composite Maximum age of age of prospective single prospective adoptive parents adoptive parent Upto 4 years 90 years 45 years Above 4 upto 8 years 100 years 50 years Above 8 upto 18 years 110 years 55 years
(h) the minimum age difference between the child and either of the prospective adopting parents should not be less than twenty five years;
(i) couples with more than four children shall not be considered for adoption.
The procedure relating to adoption for both orphaned and abandoned children is provided in Chapter II of the said guidelines. The selection of a child by prospective adoptive parents has also been provided vide Rule 10 of the said guidelines.
The guidelines also provide for the follow up progress of the adopted child to the effect : "The specialised adoption agency shall report the progress of the child online in the format as provided in Schedule11 in the Child Adoption Resource Information and Guidance System along with photographs of the child on six monthly basis for two years from the date of preadoption foster placement with the prospective adoptive parents; and in case the child is having adjustment problem with the adopting parents, the specialised adoption agency shall arrange necessary counselling for such adoptive parents and the child and if such counselling efforts do not succeed, the specialised adoption agency shall make effort for placing the child temporarily in alternative care."
Guardianship Petition No. 01/16 Page 21 of 31Chapter 4 of the said guidelines provides the Adoptive Procedure for NonResident Indian, Overseas Citizen of India and Foreign Prospective Adoptive Parents.
Rule 17 of the said guidelines provides for the mandatory issuance by CARA i.e. the Central Adoption Resource Authority of a No Objection Certificate in favour of the proposed adoption in the Format and Schedule 9 of the said guidelines and in terms of the Article 5 and 17 of the Hague Adoption Convention with it also being proceded by Rule 17 (2) that the prospective adoptive parents may take the child in pre adoption foster care within India after issuance of no objection certificate by CARA pending Court order, by furnishing an undertaking to the specialised adoption agency.
The Legal Procedure for adoption by a Foreign National is provided in Rule 18 of the said guidelines which is as under : (1) The specialised adoption agency shall file an application in the competent Court with relevant documents as mentioned in Schedule 8 within seven working days from the date of receipt of acceptance of the child by the prospective adoptive parents, for obtaining the adoption order from Court and the specialised adoption agency shall enclose the documents in original along with the application; (2) In case the child is from a child care institution, which is located in another District, the specialised adoption agency shall file the adoption petition in the concerned Court of that district;
(3) The Court will hold the adoption proceedings incamera and dispose of the case within a period of two months from the date of filing of Guardianship Petition No. 01/16 Page 22 of 31 the adoption petition by the specialised adoption agency; (4) The specialised adoption agency shall obtain a certified copy of the adoption order from the Court and will forward it to the prospective adoptive parents within ten days, besides posting a copy of such order and making necessary entries in the Child Adoption Resource Information and Guidance System.
(5) Registration of a deed of adoption shall not be necessary. (6) The specialized adoption agency shall obtain the birth certificate of the child from the birth certificate issuing authority and provide it to the prospective adoptive parents within ten days from the date of availability of adoption order, with the name of adoptive parents, as parents, and date of birth as recorded in the adoption order.
Rule 20 of the said guidelines provides for the follow up progress of the adopted child and specifically vide Rule 20 (6) it has been provided that the prospective adoptive parents shall furnish an undertaking to the effect that they would allow personal visit of the representative of authorised foreign adoption agency, the Foreign Central Authority or the concerned Government Department, as the case may be to ascertain the progress of the child with the adoptive parents/family at least for a period of two years from the date of arrival of the child in the receiving country. The verdicts of the Hon'ble Apex Court in the catena of judgments in the case of 'Laxmi Kant Pandey Vs. Union of India & Others' referred to hereinabove lay down the normative and procedural safeguards for protecting the interest and promoting the welfare of the minor child given in adoption to foreign parents and specify that the application filed by a foreigner for taking a child in adoption should be Guardianship Petition No. 01/16 Page 23 of 31 processed only through a social or child welfare agency licensed or recognized by the Government of India or the government of the State in which it is operating. Furthermore, the CARA has been directed to operate as a clearing house of information in regard to the child available for inter country adoption and all applications by foreigners for taking the Indian child in adoption which are to be forwarded by social or child welfare agency in the foreign country to such Central Adoption Resource Agency which in turn is to forward them to one or other recognized or child welfare agency in the country. It has also been laid down by the Hon'ble Apex Court in the said cases to the effect that the needful must be made to ascertain an Indian family to take the child in adoption and it is only if no Indian family comes forward to take the child in adoption, the child may be regarded as available for intercountry adoption. The Hon'ble Apex Court further directed the recognized social or central welfare agency to file applications for appointment of the foreigners as guardian of the child with directions further that it would be recommended that the applications must be accompanied with the copy of the Home Study Report, Child Study Report and other certificates and documents provided by the social or child welfare agency sponsoring the application of the foreigners for taking the child in adoption, before offering the child in adoption, the recognized social or central welfare agency must make sure that the child is free to be adopted.
The Hon'ble Apex Court further laid down that no notice of the proceedings ought to be given to the biological parents of the child as it would create considerable amount of embarrassment and hardship and that the biological parents should not have any opportunity of knowing who Guardianship Petition No. 01/16 Page 24 of 31 were the adoptive parents taking the child in adoption and thus notice of the application for guardianship should not be given to the biological parents. The Indian Council for Social Welfare and the Indian Council for Child Welfare have also been directed by the Hon'ble Apex Court to make necessary inquiries to ascertain whether the foreigners would be a suitable adoptive parent for the child and whether the child would be able to integrate and assimilate himself/herself in the family and community of the foreigner and would be able to get the warmth and affection of the family life and also whether it would be in the interest of the child to be taken in adoption of the foreigner, it is only if the Court is satisfied that it would be making an order of adoption permitting him/her to remove the child to his own country and with a view to eventual adoption and that the Court shall also introduce a condition in the order that the foreigner who is appointed guardian shall make proper provision by way of deposit or bond or otherwise to enable the child to be repatriated to India and should it become necessary for any reason with further directions that the foreigner who is appointed guardian shall submit to the Court as also to the Social or Child Welfare Agency processing the application for guardianship, progress reports of the child along with a recent photograph quarterly during the first two years and half yearly for the next three years.
Vide the judgment in 'Laxmi Kant Pandey Vs. Union of India & Others' AIR 1986 SC 272, the directions in 'Laxmi Kant Pandey Vs. Union of India & Others' AIR 1984 SC 469 were modified in relation to the aspect of the submission of the bond with directions that the Court should not insist execution of the bond by the Social or Central Welfare Agency and it would be sufficient to take a bond from the Guardianship Petition No. 01/16 Page 25 of 31 representative of the Social or Central Welfare Agency in India or to insist on the bond being executed by the foreigner in favour of Indian diplomatic mission abroad. Vide this verdict, the Hon'ble Apex Court has further directed that the Court dealing with the application for appointment of foreign parents as guardian need not insist on the foreign parents or even one of them coming down to India for the purpose of approving the child.
The verdict of the Hon'ble Apex Court relied upon by the petitioner in 'Laxmi Kant Pandey Vs. Union of India & Others' 2010 (4) SCC (Civil) 736 directs the Courts of competent jurisdiction dealing with the adoption/guardianship cases to accept documents authenticated by officers competent to issue direction as provided in Hague Convention. The verdict of the Hon'ble Apex Court in the case Stephaine Joan Becker Vs. State and Anr. (Civil Appeal No. 1053 of 2013) decided on 08.02.2013 by the Hon'ble Apex Court reiterates the observations in the three Laxmi Kant Pandey Vs. Union of India & Others judgments.
On a consideration of the entire available record and the submissions made on behalf of the petitioner, the Child Study Report of the child Ex.PW1/3 Colly indicates that the child has fine motor skills, is intelligent child and capable to catch/learn anything quickly and is a keen observer about her surroundings, she is loud and clear in her voice, able to articulate herself and speaks Hindi very well. The Senior Social Worker of SOS Adoption Services has also reported that she is a bright and active child and she can easy socialize herself by taking part in different group activities and enjoys the company of her peer group, is being toilet trained and does most of her routine work without much support and is also being trained for table manners and she is a child with good energies and Guardianship Petition No. 01/16 Page 26 of 31 charismatic aura that can catch the attention of anyone towards her and proper care, warmth and love would channelize her energies and help her to bloom into a confident individual in future.
The date of birth of the minor child is 15.06.2010, the Home Study Report of the prospective parents i.e. respondent no.s 1 & 2 which includes their social and economic status, family background, description of their home, standard of living, other family members and health status and the testimonies of PW1 & PW2 examined in the Court on 29.08.2016 bring forth that the date of birth of the minor child is 15.06.2010 (aged 6 years 2 months & 20 days as of today) and that the respondent no.1 & 2 are aged about 50 years and 54 years approx respectively and taking into account the NOC issued by the CARA Ex.PW1/2 dated 11.03.2016 qua the no objection of the CARA in relation to the minor child in question being placed with the prospective adoptive parents i.e. respondent no.s 1 & 2 and as indicated vide the said NOC Ex.PW1/2, the Foreign Adoption Agency Enfants de L'espoir, Belgium is authorized by the CARA coupled with the special power of attorney executed by the respondent no.s 1 & 2 in favour of Ms. Vijay Raina, Director, SOS Children's Villages of India i.e. Ex.PW2/1 whereby respondents have ratified all acts, deeds and things done and have agreed to remain bound by all the acts by the executors of the special power of attorney coupled with the undertaking issued by the Foreign Adoption Agency Enfants de L'espoir, Belgium Ex.PW2/17, whereby the said Foreign Adoption Agency has made a commitment that in case of disruption or repatriation of the minor child, the foreign adoption agency would abide by the specific provisions laid down in the Indian Guidelines and taking into account the absence of any criminal record Guardianship Petition No. 01/16 Page 27 of 31 against the respondent no.s 1 & 2 as indicated vide Ex.PW2/5 Colly, declaration of the respondent no.s 1 & 2 vide Ex.PW2/16 Colly that they would take care of the minor child to the best of their ability, the agreement on the child proposal Ex.PW2/15 Colly issued by the Director of the Adoption Direction - Central Community Authority (ACC) of the French speaking Community of Belgium for the adoption proposal by the respondents of the minor child under the supervision of the accredited adoption body 'Enfant de I'Espoir', the Home Study report of the respondents Ex.PW2/18 Colly which brings forth that the respondent no.s 1 & 2 are in good health and motivated to adopt the minor child, coupled with the examination of the minor child which indicates that she is looking forward to go to with the respondents and that on seeing an album maintained by the respondents, she states that she wants to go home and to her parents and she identified the photographs of the respondent no.s 1 & 2 as being her parents and has also identified the two sons of the respondent no.1 being brothers, coupled with the factum that the minor child has been declared legally free by the Child Welfare Committee vide Ex.PW1/1 dated 01.07.2014, coupled with the undertaking given by Foreign Adoption Agency already detailed hereinabove, coupled with the factum that there is no criminal record against the respondents and taking into account the interaction of the minor child with the undersigned and the testimonies of PW1 & PW2 and the record which bring forth that the respondents are happy to adopt the minor child, coupled with the minor's child response and there being nothing adverse against the respondents, it is considered appropriate to allow the petition in as much as the requisite guidelines of the year 2015 and of The verdicts of the Hon'ble Apex Court in the cases of Guardianship Petition No. 01/16 Page 28 of 31 'Laxmi Kant Pandey Vs. Union of India & Others' in the series of judgments ordered thereby have been fulfilled. The available record also indicates that it would be expedient and proper and in the interest of the welfare of the minor child that she is given into adoption to the respondents as they were desirous of adopting a child and undertake to look after the child to the best of their ability.
Taking the totality of the circumstances, thus, into account and also taking into account all the legal parameters in terms of the verdict of the Hon'ble Apex Court and the Hague Convention on Protection of Children and Cooperation In Respect Of Intercountry Adoption and the Convention on the Rights of the Child dated 20.11.1989 and taking into account the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 which permits the Court to allow a child to be given in adoption to a person and taking into account the factum that the petitioner is duly recognized by the CARA and the factum that the organisation referred to the Ministere De La Communaute Francaise, Autorite Centrale Communautaire (ACC), at Belgium is also duly recognized and also the factum that the Child Welfare Committee has declared the child 'abandoned' and has certified that the child may be given in adoption and that the child is legally free for placement in adoption as an abandoned child and taking into account the fitness of the respondents also and the factum that the child is still below the age of seven years and it would be appropriate that an expeditious adoption is permitted so that she integrates into her new family, it is considered appropriate to allow the petition and the minor child is allowed to be given in adoption to the respondents with directions to the respondent to comply with the following directions: Guardianship Petition No. 01/16 Page 29 of 31
1. The respondent no.s 1 & 2 i.e. Mr. Spronck Joseph Guy Marie and Ms. Schins Marina Leonce Mathilde Ghislaine, both Resident of RUE DU CURE 10, 4632 Cerexhe, Belgium who are also appointed as 'guardians' of the person of the minor child Aarushi in terms of Section 7 (1) (a) of the Guardian and Wards Act, 1890 and in terms of Section 7 (1) (b) of the said enactment are declared as the 'guardians' of the minor child Aarushi and in terms of the directions of the Hon'ble Apex Court, are directed to submit to the Court and also to the petitioner i.e. SOS Childrens Village of India, SOS Upvan Home, B5/21, Safdarjung Enclave, New Delhi and to the CARA, progress reports of the minor child Aarushi along with her recent photographs quarterly during the first two years and half yearly for the next three years from the date of the arrival of the adopted child in the receiving country.
2. The respondents shall also furnish an undertaking to the effect that they would allow personal visits of the representative of the authorized foreign adoption agency i.e. Enfants De L'Espoir, 13, Rue De Montigny, Charleroi, 6000, Belgium to ascertain the progress of the child Aarushi with them i.e. the respondents for at least a period of two years from the date of arrival of the child in the receiving country i.e. Belgium.
The respondents are thus directed to execute an adoption deed in respect of the minor child and place an attested copy thereof on the record of this Court within three months from the date of the order. The photograph of the minor child born on 15.06.2010 are directed to be affixed on the certificate which is to be issued in terms of this verdict.
Guardianship Petition No. 01/16 Page 30 of 31The records of the Guardianship Petition No.01/16 be consigned to the Record Room.
Announced in open court today (ANU MALHOTRA)
on this 05th day of District & Sessions Judge (South)
September, 2016 Saket/New Delhi.
Guardianship Petition No. 01/16 Page 31 of 31