Delhi District Court
Sos Childrens Village Of India vs Ms. Natalia Folch Molero on 23 December, 2015
IN THE COURT OF MS. ANU MALHOTRA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
Guardianship Petition No. 01/15
ID No.: 02406C0340512015
SOS Childrens Village of India,
SOS Upvan Home,
B5/21, Safdarjung Enclave, New Delhi
Through its Social Worker/AR
Ms. Nilofer ........ Petitioner
Versus
Ms. Natalia Folch Molero,
D/o Mr. Juan Folch Garcia,
R/o Avda Coll Portell 37,23,
Town: 08024, Barcelona (Spain)
Through her Attorney
Mrs. Vijay Raina, Director,
SOS Childrens Village of India,
A7, Nizamuddin (West),
New Delhi. .......Respondent
Instituted on: 20.10.2015
Judgment reserved on: 10.12.2015
Judgment pronounced on: 23.12.2015
J U D G M E N T
This judgment shall dispose of a petition u/s. 41 (6) read with Section 2 (aa) of the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended read with Rules framed therein seeking that the Guardianship Petition No. 01/15 Page 1 of 34 minor child Shikhar born on 21.01.2011 be given in adoption to the respondent Natalia Folch Molero, daughter of Mr. Juan Folch Garcia, resident of Avda Coll Portell 37,23, Town: 08024, Barcelona (Spain) as her son and that she be permitted to remove the minor child outside the jurisdiction of this Court for his upbringing to where the respondent resides, she being a resident of Barcelona, Spain.
The petition is indicated to have been filed by the SOS Children Villages of India, SOS Upwan Home, D5/21, Safdarjung Enclave, New Delhi through its social worker and Authorised Representative Ms. Nilofer, 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, 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. Nilofer, 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 21.05.2012, the minor male child namely Shikhar born on 21.01.2011 was found abandoned by the police officials of PS Old Delhi Railway Station and the officials of Prayas, who on the same day, handed over the care and custody of the child to the petitioner / society and that the parents of the Guardianship Petition No. 01/15 Page 2 of 34 said child did not come to claim him for a considerable period whereafter the petitioner/society filed an application before the Child Welfare Committe, New Delhi for declaring the child as an abandoned child and free for adoption. It has been further submitted through the petition that the Child Welfare Committe after making inquiry, declared the child as an abandoned child and free for adoption vide certificate dated 04.04.2013 in case No. 614/12 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 was born on 13.08.1969 and is now about 46 years old and she is a permanent resident of Barcelona (Spain) being its citizen/national and that she is a single lady and is not married and wishes to adopt a male child to complete her family. It has, inter alia, been submitted through the petition that the respondent is employed with CENTRE PILATES BARCELONA, SOCIEDAD LIMITADA as an Instructor and her annual salary is Euro 11200/ and that she enjoys a high status with sufficient means of livelihood and wishes to adopt the minor male child Shikhar as her son and has expressed her desire and intention to do so. It has further been submitted through the petition that the respondent has forwarded her documents in support of her desire to adopt the minor child Shikhar born on 21.01.2011 through a recognized agency ECAI BALBALIKA ADOPCIONES INTERNACIONALES (International Adoption) Badalona, Barcelona (Spain) who has furnished the necessary Guardianship Petition No. 01/15 Page 3 of 34 undertaking as per the directions of the Hon'ble Supreme Court to look after the interest of the minor, in case the respondent failed to do so for any reason whatsoever. It has further been submitted by the petitioner that it has received a No Objection Certificate from the Central Adoption Resource Authority, Ministry of Women and Child Development, Government of India, to seek permission from the Court to give the minor in adoption to the respondent under the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended.
Inter alia, the petitioner has submitted that the respondent after seeing the Child Study Report, photograph and medical report of the child in question, has approved the child for adoption and has several documents showing her status, employment and family background etc. besides a Power of Attorney in favour of the Director/official of the petitioner and that all these documents are duly notarized and authenticated. It has also been submitted through the petition that the respondent enjoys good health as per the medical certificate concerning her health which clearly reveals that she does not suffer, nor has previously suffered from any mental or physical disease or incapacity detrimentally affecting her fitness to have the custody of the abandoned child as her son and that the respondent approached the ECAI BALBALIKA ADOPCIONES INTERNACIONALES (International Adoption) Badalona, Barcelona (Spain) for adopting the child and that the respondent has been recommended by the aforesaid Foreign Adoption Guardianship Petition No. 01/15 Page 4 of 34 Agency which is recognized by the Government of India and is competent to sponsor a child. It has further been submitted through the petition that every attempt had been made by the petitioner to place the said child in an Indian family but no suitable Indian family has come forward to adopt the child and CARA has thus cleared the child for foreign adoption and the respondent has now come forward from Barcelona, Spain to adopt the minor child Shikhar and has been found to be the most suitable person for legal adoption of the child and CARA has issued NOC in favour of the respondent for adopting the child.
It has further been submitted by the petitioner that as per law, the respondent has undertaken to send to the petitioner a progress report 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 undertakes to bring up the child according to her status. It has also been submitted by the petitioner that it is in the interest and welfare of the minor male child if he is given in adoption to the respondent and that no person has been appointed as guardian of this child, neither has anyone else being granted permission to adopt the child and that the respondent has 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 a loving parent and a house to live in and a sense of belonging.
Inter alia, through the petition, it has been submitted that the Guardianship Petition No. 01/15 Page 5 of 34 child owns no property and it is in his interest and welfare if he is placed and adopted in a financial and otherwise sound family where he 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, 2000, as amended.
In support of the averments made in the petition, the petitioner has placed on record original documents and affidavits of Ms. Nilofer, a social worker working with the petitioner 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 in terms of the directions dated 03.11.2015 on 20.11.2015. The minor child was also produced on 20.11.2015 and was examined by the undersigned Presiding Officer in her chamber and the proceedings thus conducted were recorded and are reproduced as under:
'The child Shikhar has been produced by Ms. Vijay Raina, Director, SOS Children's Villages of India. The child appears to be normal but is not speaking. It is informed by Ms. Nilofer, a social worker working with SOS Children's Villages of India, Upvan Home, B5/21, Safdarjung Enclave, New Delhi that the child speaks very little and he is aged about five years and she has further informed that the child has no hearing problem and he plays with the other inmates at the SOS Children's Villages of India, Upvan Home and talks very little. Guardianship Petition No. 01/15 Page 6 of 34
The child was given two toffees by Ms. Nilofer and he has eaten them happily. He is able to recite the numbers from 1 to 10 in English and in Hindi and identifies Ms. Nilofer as being 'Aunty' and is able to give his name as 'Khar', his name being 'Shikhar'. He is also happy to eat the sandwich provided by Ms. Nilofer. Ms. Nilofer further informs that the respondent is aware of the condition of the child. The child, on being asked to make a drawing, has put a drawing at point A on Ex. CW1/A which is taken on record.' Ms. Nilofer, 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 who were both vide order dated 20.11.2015 directed to produce their original identity cards. Ms. Nilofer was examined on 20.11.2015 and 01.12.2015 as PW1 and Ms. Vijay Raina was examined on 02.12.2015 as PW2 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 Shikhar be given in adoption to the respondent who was not present before the Court.
Through her testimony, Ms. Nilofer testified to her affidavit Ex. PW 1/A bearing her signatures and testified to be working as a social worker with the SOS Children's Villages of India at Upvan Home at Guardianship Petition No. 01/15 Page 7 of 34 B5/21, Safdarjung Enclave, New Delhi and produced her identity card with Employment Code No. 1333 of the SOS Children's Village indicating her designation as a worker of the SOS Children's Villages, India (photocopy of which was taken on the record as Ex. PW1/B). She, inter alia, testified to the effect that the contents of her affidavit dated 19.11.2015 were true and correct to her knowledge and testified to Ex. PW1/A to the effect that the order for declaring the child Shikhar legally free for adoption was received from the Child Welfare Committee and testified to the same being Ex. PW1/1. The No Objection Certificate issued by the Central Adoption Resource Authority in relation to the minor child Shikhar was produced as Ex. PW1/2, the updated child study report of the minor child Shikhar was testified by the witness to have been prepared by Ms. Akshita, Social Worker whose signatures PW1 identified having stated that she had seen her writing several times during the course of her official duties. The said document was exhibited as Ex. PW1/2 in view of the certified documents at page 17 of the documents, which was exhibited as Ex. PW1/3 in view of the certificate in terms of the verdict of the 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 officers competent to issue certification by Apostille in the country of their execution as provided and covenanted in the Hague Apostille Guardianship Petition No. 01/15 Page 8 of 34 Convention and taking into account the certificate at page 17 No. CK 7469209 indicated to have been issued in Spain as an Apostille in terms of the Hague Convention dated 05.10.1961. Inter alia, PW1 identified the photograph at point A on page 1 of Ex. PW1/3 as being of the minor child Shikhar. She was further examined by the Court and her testimony of such examination is reproduced as under :
"Court Q. Have you ever met Natalia Folch Molero? Ans. Yes.
Court Q. When?
Ans. When she came to meet the minor child Shikhar. Court Q. Where did she meet the minor child? Ans. At SOS Children Village at B 5/21, Safdarjung Enclave. Court Q. When did she come?
Ans. Two months ago.
Court Q. How was her behaviour with the child? Ans. Her behaviour with the child was good. Court Q. Do you know why she wants to adopt the child? Ans. Because she has no child of her own. Court Q. Is she married?
Ans. No. Court Q. Whom does she live with?
Ans. I do not know with whom she lives. Volunteeredshe lives in Italy/Spain. It is correct that I have stated vide my affidavit Ex. PW1/A Guardianship Petition No. 01/15 Page 9 of 34 that she lives in Spain.
Court Q. What are her educational qualifications? Ans. I do not know.
Court Q. What does she do?
Ans. I do not know.
Court Q. Does she know that the child Shikhar has some problem in speaking?
Ans. Yes Court Q. Where are the parents of the minor child? Ans. The parents of the minor child Shikhar have not been located. Court Q. Where was the child found?
Ans. At the Railway Station, New Delhi. Court Q. Has anyone come forward to claim the child in India. Ans. No. Court Q. Does the child Shikhar live in the same home in which you are a social worker?
Ans. Yes.
Court Q. Has the minor child met the respondent? Ans. Yes.
Court Q. In your presence?
Ans. Yes.
Court Q. For how long?
Ans. For one/one and a half / two hours. Guardianship Petition No. 01/15 Page 10 of 34 Court Q. Was the child comfortable with the respondent? Ans. Yes.
Court Q. How do you say so?
Ans. The child was playing with the respondent. As the child had a speaking problem, the respondent was able to understand what the child spoke through signs.
Court Q. Would it be in the interest of the minor child if permission is granted to the respondent for adoption of the minor child? Ans. Yes."
Through her affidavit, she further reiterated the submissions made in the petition and also stated thereby that the respondent is Christian by religion and faith and also submitted to the effect that it would be in the interest and welfare of the minor child if he was given in adoption to the respondent as on completion of the process of adoption he would get complete security by acquiring inheritance rights as that of a biological son of the respondent and that the respondent was found fit and suitable to adopt the minor child Shikhar as per the home study report and it would enable the minor child, an abandoned child to receive parental love and affection and that the petitioner is satisfied that the respondent is a suitable parent and permanent custody/ adoption of the minor child by her would be in the best interest of the child.
PW2 examined by the petitioner was Ms. Vijay Raina, Director of the petitioner/society who produced her original identity card Guardianship Petition No. 01/15 Page 11 of 34 issued by the SOS Children's Villages, India photocopy of which was taken on the record as Ex. PW2/A and testified to the effect that the contents of her affidavit Ex. PW2/B bearing her signatures thereon are were true and correct to her knowledge. She testified to the home study report of the respondent Natalia Folch Molero having been received from CARA and duly authenticated and authorised with the certificate of Apostille (i.e. the home study report as Ex. PW2/1). She further testified to the effect that Ex. PW 2/2 Colly, were photographs of the respondent, the location of her house and the interior of her house and of her family members and testified to Ex. PW2/3 Colly, being the reference letters in favour of the respondent with accompanying certificates of Apostille, all issued at Spain in terms of the Hague Convention. Ex. PW2/4 was testified by the witness PW2 to be the Certificate of medical fitness of the respondent and further testified to the effect that she had met the respondent twice in September and October, 2015 as she had come to meet the child as she wanted to meet the child Shikhar. Inter alia, PW2 further stated that she met the respondent and she was thus aware that the respondent was in a fit physical and mental state. Inter alia, PW2 testified to the effect that the respondent lives in Spain with Ex. PW 2/5 being the copy of her passport. She further states that the respondent is an English Instructor in a company and testified to Ex. PW 2/6 being the certificate of employment duly certified and authenticated and notarized and further testified that she, the respondent earns 11000 Euros per annum which Guardianship Petition No. 01/15 Page 12 of 34 works out be Rs. 80,000/ per month and furthermore, the respondent also has additional income coming through rental income and testified to Ex. PW2/7 being the details of the income with income tax certificate. Inter alia, PW2 further stated that the respondent is not married and testified to Ex. PW 2/8 being the duly notarized and authenticated certificate to that effect with Ex. PW 2/9 being the duly authenticated and notarized birth certificate of the respondent. Ex. PW 2/10 was testified by PW2 to be the certificate issued by the Embassy of India conveying that it has no objection for renewal of authorisation of the sponsoring agency ECAI BALBALIKA ADOPCIONES INTERNACIONALES (International Adoption) Badalona, Barcelona (Spain) and also testified to Ex. PW 1/2 being the NOC issued by CARA and testified Ex. PW2/11 being the certificate in relation to Ex. PW 1/2. PW2 further testified to the permission of the receiving country being at Ex. PW 2/12 and testified to the effect that the respondent appointed her i.e. PW2 as her Special Power of Attorney and testified to the Special Power of Attorney in her favour being is Ex. PW 2/13 and the undertaking by sponsoring agency being Ex. PW2/14 with the Police Clearance Certificate being Ex. PW 2/15. Letter of acceptance of the respondent qua the child being Ex. PW 2/16 with certificate all collectively exhibited as Ex. PW 2/16 and testified to the child approval issued by the respondent as being the Ex. PW 22/17.
The witness PW2 testified to the effect that "the respondent works in the company, teaches English and trains new participants in Guardianship Petition No. 01/15 Page 13 of 34 English. It would be apparently for (the words 'in the interest of' appear to have not been typed inadvertently) for the minor child Shikhar to be given in adoption to the respondent. The respondent is a very caring person. I have not found anything adverse in the respondent and she has no interest adverse to the minor. The respondent is very happy to adopt the child."
Through her affidavit, PW2 reiterated that it would be in the interest and welfare of the minor child Shikhar if the petitioner was permitted to give the minor as her son and that the Central Adoption Resource Agency had found the respondent fit and suitable on the basis of Home Study Report to adopt the minor in terms of the directions of the Hon'ble Supreme Court and that the respondent was keen and desirous of adopting the minor and shall bring him up as a natural born child and that the respondent shall get parental rights over the child after the permission is granted by the Court to adopt him and the child shall also get parental love and affection and inheritance rights over the property of the respondent and that the respondent undertook to give love and affection to the minor child and further assures the Court that she shall to give the child proper care and education so that the minor child gets the status of a natural born child after adoption of the minor child by the respondent.
Ld. counsel for the petitioner has placed reliance on the verdicts of the Hon'ble Apex Court in the cases 'Laxmi Kant Pandey Vs. Union of India & Other' AIR 1984 SC 469; 'Laxmi Kant Pandey Vs. Guardianship Petition No. 01/15 Page 14 of 34 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 be placed 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 Inter country 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.' Guardianship Petition No. 01/15 Page 15 of 34 The fundamental principles governing adoption have been 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; Guardianship Petition No. 01/15 Page 16 of 34
(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 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 : Guardianship Petition No. 01/15 Page 17 of 34 "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."
Chapter 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 Guardianship Petition No. 01/15 Page 18 of 34 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 Schedule8 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 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 Guardianship Petition No. 01/15 Page 19 of 34 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 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 intercountry adoption and all applications by foreigners for taking the Indian child in adoption which are to be forwarded by social or child Guardianship Petition No. 01/15 Page 20 of 34 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 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 Guardianship Petition No. 01/15 Page 21 of 34 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 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 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. 01/15 Page 22 of 34 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, his date of birth and social background, the Home Study Report of the prospective adoptive parent, the respondent which includes her social and economic status and family background descriptive of her home, standard of living, other family members and health status, and the testimonies of PW1 and PW2 examined in Court bring forth that the date of birth of the minor is 21.01.2011 and the date of birth of the respondent Guardianship Petition No. 01/15 Page 23 of 34 is 13.08.1969 which brings forth that the child is less than four years of age and that the age of the respondent is now 45 years two months on the date of institution of the petition i.e. 20.10.2015 and taking into account the no objection certificate issued by CARA dated 04.10.2015 in relation to the minor child being placed with the prospective adoptive parent i.e. the respondent, and as indicated vide the said no objection certificate Ex. PW1/2 on the record, the foreign adoption agency ECAI BALBALIKA ADOPCIONES INTERNACIONALES (International Adoption) Badalona, Barcelona (Spain) is authorised by the CARA and the Special Power of Attorney executed by the respondent in favour of PW2 Ms. Vijay Raina, Director and Managing Trustee of the SOS Village, India i.e. the petitioner Ex. PW 2/13 whereby the respondent has ratified all acts, deeds and things done and has agreed to remain bound by all the said by the executors of the Special Power of Attorney coupled with undertaking submitted by ECAI BALBALIKA ADOPCIONES, adoption agency in relation to the respondent seeking adoption of the minor whereupon ECAI BALBALIKA ADOPCIONES has submitted their undertaking to the effect
1. We, as Social Welfare enlisted agency sponsoring the foreigner, further undertake that the child will be legally adopted by the foreigner adoptive parents according to the law of our country within a period not exceeding two years from the time of arrival of the child and as soon as the adoption is effected, he will send three Guardianship Petition No. 01/15 Page 24 of 34 certified copies of adoption order to the social or Child Welfare Agency in India through which the application for guardianship is proceeded for filing in the Court and one copy to Central Adoption Resource Agency, Ministry of Welfare.
2. We, further undertake and assure that we will send progress reports of the child along with his / her recent photograph, after the minor arrives at the home of the adoptive parents, as required by the competent Indian authorities;
3. We and the competent body acting as Central Authority in Spain, further undertake that in case of disruption of the family of the foreigner before legal adoption has been effected, we will take care of the child and will find a suitable alternative placement for the child with the approval of Central Adoption Resource Agency. After seeking the necessary approval from CARA it will report alternative placement to the concerned Indian court handling guardianship proceedings with the help of concerned RIPA and such information shall be passed on to all concerned
4. We further undertake and assure that we will reimburse all expenses to the concerned Indian Social or Child Welfare Agency as fixed by CARA towards maintenance of the child and processing charges fees.
5. We further certify that adoptive parents are permitted to adopt a child according to the law of our country and that the child will Guardianship Petition No. 01/15 Page 25 of 34 receive an entry permit/visa" and taking also into account the absence of any criminal record against the respondent as indicated vide Ex. PW2/15 and the letter of acceptance Ex. PW2/16 executed by the respondent confirming her willingness to be appointed as guardian of the minor preparatory to his final adoption according to the local laws of her country at Spain and also the acceptance by the respondent to accept the minor child in the condition mentioned in the Child Study Report and the child approval submitted by the respondent Ex. PW2/17 which bring forth that taking into account the psychosocial report for adoption in relation to the respondent which indicates that the respondent is healthy and has the financial and professional means available with same characteristics as described in Ex. PW2/1 and that she is educated with a degree in English Philology and is working by granting private English lessons and that she has a gross income of 22422 Euros with her financial capacity being appropriate to fulfil her child's needs and lives in a 65 square metres flat in Barcelona, Spain owned by her mother comprising of a dining living room, one kitchen, one bathroom and three bedrooms with good hospitality conditions with all living services and facilities in the performance of any activity with appropriate social environment for a minor of another ethnical group, and the factum that the other PsychoSocial Report of the respondent Ex. PW2/1 also indicates that the respondent also Guardianship Petition No. 01/15 Page 26 of 34 owns a flat in the same building as her mother and sister and that she is independent, open and sociable with a pleasant and friendly treatment and has a wide group of friends, is efficient in skills, serious and responsible and has an excellent and frequent relationship with her original family and that she is a traditional woman and that she is suitable for adoption of one minor only to whom she would provide all support.
The reference letters Ex. PW2/3 colly. of Salvadar Coll Ruiz, Susana Vilella Romeo and Jordi Bandia Prio and indicate that the respondent has fair values and skills to adopt a child, is helpful and attentive and ready to help and has always desired to have a child and is very excited to adopt a child The updated Child Study Report of the minor child 'S' Ex. PW 1/3 indicates that the social functioning of the child is average as per his age due to his delayed speech development and limited social exposure but with regular stimulation, love and care of the family will help him to grow as a confident and content individual and that the child has normal motor skills and loves to play with other children and obeys the commands of the caretaker and needs regular love and warmth to help him to bloom into a normal human being. It has also been detailed through the said updated Child Study Report prepared by Ms. Akshita, Social Worker, MSW, SOS Childrens Village of India whose signatures have been identified by PW1 Ms. Nilofer, a Social Worker, through whom the Guardianship Petition No. 01/15 Page 27 of 34 petition has been filed on behalf of the petitioner i.e. SOS Children's Village of India, SOS Upvan Home, a charitable organization running its Orphanage duly recognized by CARA, Ministry of Woman and Child Development, the child with parental support and guidance would develop logical skills, reasoning skills and is confident and is open to society.
The Ex. PW 1/1 placed on the record is the order of the Child Welfare Committee, Lajpat Nagar, New Delhi declaring the child vide order dated 04.04.2013 legally free for adoption and that the child 'S' born on 21.01.2011 had been placed in the custody of the Authorised Adoption Agency Upvan, B5/21, Safdarjung Enclave, New Delhi vide order No. 614/12 dated 23.05.2012 of the Child Welfare Committee, Lajpat Nagar, New Delhi.
Ex. PW 2/10 placed on the record is the no objection certificate issued by the Embassy of India, Madrid conveying to CARA, the no objection of the Embassy Of India, Madrid to the renewal of authorisation for ECAI BALBALIKA ADOPCIONES INTERNACIONALES for their renewal of authorisation by CARA.
The terms and conditions of responsibility imposed on the authorised foreign adoption agency i.e. ECAI BALBALIKA ADOPCIONES INTERNACIONALES, Spain authorised by CARA are detailed in Ex. PW1/2.
The Ex. PW 2/12 is the certificate issued by the Catalan Guardianship Petition No. 01/15 Page 28 of 34 Institute of Foster Care and Protection, Government of Catalonia certifying to the effect that the Catalan Institute of Foster Care and Protection shall, on being officially notified on the referral of the minor to Natalia Folch Molero i.e., the respondent shall:
1. Furnish the family with the means necessary to fulfil the responsibility to provide periodic information on the adaptation of the minor/s, according to article 11 of law 54/2007, dated 28 December, on international adoption and to article 91 of decree 2/1997, dated 7 January, passing the regulations on defenceless children's protection and adoption. The follow up report will be done with the frequency established by the relevant agencies in India, which is the country of origin of the adopted minor.
2. Supervise the report and ensure that they are sent to the competent body in the minor's country of origin.
Ex. PW2/15 is the certificate issued by the Ministry of Justice Central Criminal Record Registry of Barcelona to the effect that there appears no criminal record related to the respondent with Tax ID No. 36986857M and that a certificate has been issued in order to reflect the interested person's situation on the date of issuance i.e 23.11.2012 for the purposes of an international adoption in India.
The interaction of the undersigned with the minor on 20.11/2015 in the presence of Miss Nilofer, a social worker with the SOS Upvan Home i.e the petitioner in the case that the child was happy in the Guardianship Petition No. 01/15 Page 29 of 34 society of Miss Nilofer with whom he has had interaction residing in the SOS Village since 21.05.2012 and the interaction on the said date also brought forth that Miss Nilofer informed that the respondent was aware of the condition of the child and the testimony of Miss Vijay Raina, Director of the petitioner also indicates that she has met the respondent and that the respondent is in a fit mental and physical state and that the respondent is very happy to adopt the child and that the child's response to the respondent was very good. The testimony of PW2 also states to the effect that she found nothing adverse in the respondent and that the respondent has no interest adverse to the minor and that the child has been chosen by CARA to be given in adoption to the respondent and that CARA puts up children on the website who are identified by the agency for specific families and that after seeing the Child Study Report and the medical records, acceptance of the child comes from the family who seeks to adopt the child. The testimony of PW2 also indicates that the respondent has come in September and October, 2015 to meet the child.
The testimony of Miss Nilofer, PW1 also indicates that the respondent had come to India and met the minor child at SOS Children's Village and her behaviour for the child was good and that she had met the child for one/one and a half/two hours and that the child was comfortable with her in as much as he was playing with the respondent as the child has a speaking problem the respondent was Guardianship Petition No. 01/15 Page 30 of 34 able to understand what the child spoke through signs.
The testimonies of both the witnesses examined by the petitioner are categorical to the effect that it would be in the interest of the minor, if permission is granted to the respondent for adoption of the minor child.
On a consideration of the entire available record, it is apparent that there is no impediment to the petition being allowed. This is so in as much as all requisite requirements in terms of the guidelines of 2015 and the verdicts of the Hon'ble Apex Court in the case of '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 he is given into adoption to the respondent as she was desirous of adopting a child and undertakes to look after the child to the best of her 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, 2000 i.e Rule 41(6) thereof, which prevents the Court to allow a child to be given in adoption to a person irrespective of marital status and taking into account the factum that the petitioner is Guardianship Petition No. 01/15 Page 31 of 34 duly recognized by CARA and the factum that the organisation referred to the Organisation of the National Concern at Spain 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 respondent also and the factum that the child is still below the age of five years and it would be appropriate that an expeditious adoption is permitted so that he integrates into his new family, it is considered appropriate to allow the petition and the minor child is allowed to be given in adoption to the respondent with directions to the respondent to comply with the following directions:
1. The respondent shall execute a personal bond to the tune of Rs.
10,000,00/ (Rs. 10 lacs); that she shall take good care of the minor child Shikhar to the best of her ability and shall educate him and shall look after his well being and health and as and when required and necessary for the child to be repatriated to India, she shall produce the child before the Court as and when directed or shall forfeit the sum of Rs. 10,000,00/ (the said condition is imposed in terms of the practice directions issued by the Hon'ble High Court of Delhi as detailed in the case of 'Laxmi Kant Pandey Vs. Union of India & Others' AIR 1984 SC 469);
2. The respondent who is also appointed as 'guardian' of the person Guardianship Petition No. 01/15 Page 32 of 34 of the minor child Shikhar 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 is declared as the 'guardian' of the minor child Shikhar and in terms of the directions of the Hon'ble Apex Court, is 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 child Shikhar along with 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.
3. The respondent shall also furnish an undertaking to the effect that she would allow personal visits of the representative of the authorized foreign adoption agency i.e. ECAI BALBALIKA ADOPCIONES INTERNACIONALES (International Adoption) Badalona, Barcelona (Spain) and its cooperative entity i.e. Catalian Institute of Foster Care and Adoption, Government of Catalonia, BALBALIKA ADOPCIONES to ascertain the progress of the child Shikhar with her i.e. the respondent for at least a period of two years from the date of arrival of the child in the receiving country i.e. Spain.
The respondent is thus directed to execute an adoption deed in respect of the minor and place an attested copy thereof on the record of this Court within three months from the date of the order. The photograph Guardianship Petition No. 01/15 Page 33 of 34 of the minor child born on 21.01.2011 is directed to be affixed on the certificate which is to be issued in terms of this verdict.
The petition was instituted on 20.10.2015 and it was to be disposed of by 19.12.2015 and is now disposed of today i.e. 23.12.2015 as there were 19 non working days i.e. Court holidays and the undersigned was on leave on three dates, thus, there was a reduction of 22 days from the total number of the working days from the date of the institution of the petition.
The records of the Guardianship Petition No.01/15 be consigned to the Record Room.
Announced in open Court today (ANU MALHOTRA)
on this 23rd day of District & Sessions Judge (South)
December, 2015 Saket/New Delhi.
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