Delhi District Court
Sos Children'S Villages Of India vs Ms. Sharmila Prakash Khare on 24 February, 2016
IN THE COURT OF MS. ANU MALHOTRA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
Guardianship Petition No. 03/15
ID No.: 02406C0407412015
SOS Children's Villages of India,
SOS Upvan Home,
B5/21, Safdarjung Enclave, New Delhi
Through its Social Worker/AR
Ms. Nilofer ........ Petitioner
Versus
Ms. Sharmila Prakash Khare,
D/o Mr. Prakash H. Khare,
R/o 49, Spruce Street,
Ottawa, Ontario, Canada
Through her Attorney
Mrs. Vijay Raina, Director,
SOS Children's Villages of India,
A7, Nizamuddin (West),
New Delhi. .......Respondent
Instituted on: 18.12.2015
Judgment reserved on: 03.02.2016
Judgment pronounced on: 24.02.2016
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. 03/15 Page 1 of 31 minor child Dholu born on 16.11.2008 (hereinafter referred to as 'the child') be given in adoption to the respondent Ms. Sharmila Prakash Khare, D/o Mr. Prakash H. Khare, R/o 49, Spruce Street, Ottawa, Ontario, Canada 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 Ottawa, Ontario, Canada.
The petition is indicated to have been filed by the SOS Children Villages of India, SOS Upvan 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, 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 08.11.2012, the minor male child namely Dholu born on 16.11.2008 was found abandoned by the police officials of PS Nabi Karim, New Delhi, who on the same day, 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 Guardianship Petition No. 03/15 Page 2 of 31 claim him 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 been further 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 29.08.2013 in case No. 277/13 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 30.09.1971 and is now about 47 years old and she is a permanent resident of Canada being its citizen/national and that she is a single lady and has not married and that she had previously adopted one female child namely Khanchan Anushal Sharmila Khare, whose date of birth is 27.10.2004 who is now 11 years old, and goes to school in 4th grade and has been properly adjusted with the family and has given her consent to the petitioner for adoption and that now the petitioner 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 Federal Government in the Department of Finance, Canada and her annual salary is $124,300/ and that she enjoys a high status with sufficient means of livelihood and wishes to adopt the minor male child Dholu 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 Guardianship Petition No. 03/15 Page 3 of 31 adopt the minor child Dholu born on 16.11.2008 through a recognized agency "The Children's Bridge International Adoption Consultants, Canada" who has furnished the necessary 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 'The Children's Guardianship Petition No. 03/15 Page 4 of 31 Bridge International Adoption Consultants, Canada' for adopting the child and that the respondent has been recommended by the aforesaid Foreign Adoption 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 Ottawa, Ontario, Canada to adopt the minor child Dholu 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 been 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 Guardianship Petition No. 03/15 Page 5 of 31 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 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, Upvan Home in terms of the directions dated 18.12.2015 on 06.01.2016. The minor child was also produced on 27.01.2016 and was examined by the undersigned Presiding Officer in her chamber.
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. Ms. Nilofer Gul and Ms. Vijay Raina were examined on 03.02.2016 as PW1 and PW2 respectively qua their affidavits submitted on record.
Arguments were addressed on behalf of the petitioner by Ld. Counsel Shri Mohinder Singh.
Guardianship Petition No. 03/15 Page 6 of 31
It was submitted on behalf of the petitioner through oral arguments addressed that the minor child Dholu be given in adoption to the respondent who was not present before the Court.
Through her testimony, Ms. Nilofer Gul testified to her affidavit Ex. PW 1/A bearing her signatures and relied upon the order for declaring the child whose photograph is affixed on the certificate dated 29.08.2013 legally free for adoption was issued to Upwan. The said abandonment certificate was produced as Ex. PW1/1. The No Objection Certificate issued by CARA qua the child was produced as Ex. PW1/2. She further testified that she knows Akshita, the social worker as she works with her. She also recognized the signatures of Akshita as she stated she writes her name with the letter 'A' as a star. The Child Study Report bears the signatures of Ms. Akshita, the social worker at point A on Ex. PW1/3. She further recognized the photograph of the minor child in relation to whom the Child Study Report has been prepared at point X on Ex. PW 1/4. (In reply to a specific court query, she stated that the child is approximately seven years of age. She further stated that she is not aware of the existence of the natural parents of the minor and no one has come forward to the petitioner for taking custody of the minor child. She further stated that she has not met the respondent. She further stated that the photographs that the minor child brought on 27.01.2016 in Court are retained in the Guardianship Petition No. 03/15 Page 7 of 31 custody of the petitioner and stated that the children are given the photographs 2/3 months before they are brought to the Court. She further stated that the child had been informed by her that the person in those photographs were his mother and sister and that he had to go to them and the child wants to go to them. She further stated that she is not aware of any Indian family having come forward to adopt the minor child. She also stated that the child is happy even at the Upvan Home).
Through her affidavit, she further reiterated the submissions made in the petition 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 Dholu 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 testified to the effect that the contents of her affidavit Ex. PW2/A bearing her signatures thereon are were true and correct to her knowledge. (In reply to a specific court query, she has stated that she knew the respondent only on papers as her Guardianship Petition No. 03/15 Page 8 of 31 application was sent to them by CARA). The Apostille power of attorney in her favour executed by the respondent was produced as Ex. PW2/1. The Home Study Report and the updated Home Study Report of the respondent also apostilled were produced as Ex. PW2/2 colly. The medical report of the respondent was produced as Ex. PW2/3. The apostilled license of the Foreign Adoption Agency was produced as Ex. PW2/4. The renewal certificate issued by CARA was produced as Ex. PW2/5. The birth certificate of the respondent was produced as Ex. PW2/6. (In reply to a specific Court query, PW2 has stated that the respondent is about 47 years of age). The references sent by the respondent and her family through the agency were produced as Ex. PW2/7 colly. of Kalyani Pandiya, Jenifer Harpar and Levina Ramessar Austen at pages 5254. (In reply to a specific Court query, PW2 has stated that the respondent works with the Canadian Government in the Finance Department with emoluments of 1.5 lacs Canadian dollars per annum). The financial statement of the respondent was produced as Ex. PW2/8. The statement of account of the respondent was produced as Ex. PW2/9 pages 5864. The Employment Certificate of the respondent was produced as Ex. PW2/10. The RCMP Report and Interpole Certificate of the respondent are at pages 68 and 69 as Ex.PW2/11 colly. The copy of the passport of the respondent was produced as Ex. PW2/12. The OCI card of the respondent is at page 72 Ex. PW2/13. In Guardianship Petition No. 03/15 Page 9 of 31 reply to a specific Court query, PW2 stated that the respondent has one adopted daughter, and that the respondent has not married, and has her close family members living in Canada. The photograph of the respondent with the previously adopted child was produced as Ex. PW2/14. The property assessement notice of the respondent was produced as Ex. PW 2/15. The consent of the previously adopted child was produced as Ex. PW2/16. The Adoption Decree of the previously adopted child was produced as Ex. PW2/17. The Guardianship Statement of the respondent was produced as Ex. PW2/18. The certificate of undertaking by the Foreign Adoption Agency was produced as Ex. PW2/19. The letter of approval of the respondent for approval of adoption was produced as Ex. PW2/20.
In reply to a specific Court query, PW2 stated that the child was born in 2008 and is above eight years now and it is difficult to get an Indian family as persons residing in India are not open to adopt older children, and that the child had also been assigned by CARA for the said adoption. She further testified that on receipt of the dossier from the Foreign Agency, they start preparing the child on receipt of the photo album of the family concerned. She further testified that the child is eager to go as there are several children in the Upvan Home and they keep preparing the child that his or her parents would come, and that would be in the interest of child if the child is Guardianship Petition No. 03/15 Page 10 of 31 sent in adoption to the respondent).
Through her affidavit, PW2 reiterated that it would be in the interest and welfare of the minor child Dholu 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. 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.
Guardianship Petition No. 03/15 Page 11 of 31
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.' 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;
Guardianship Petition No. 03/15 Page 12 of 31
(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 Guardianship Petition No. 03/15 Page 13 of 31 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 : "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 Guardianship Petition No. 03/15 Page 14 of 31 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 proceeded 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 Schedule8 within seven working days from the date of receipt of Guardianship Petition No. 03/15 Page 15 of 31 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 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 Guardianship Petition No. 03/15 Page 16 of 31 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 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 Guardianship Petition No. 03/15 Page 17 of 31 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 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 Guardianship Petition No. 03/15 Page 18 of 31 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 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 Guardianship Petition No. 03/15 Page 19 of 31 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 16.11.2008 and the date of birth of the respondent is 30.09.1971 which brings forth that the child is less than eight years of age and that the age of the respondent is now 44 years four months on the date of institution of the petition i.e. 18.12.2015 and taking into account the no objection certificate issued by CARA dated 01.12.2015 in relation Guardianship Petition No. 03/15 Page 20 of 31 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 The Children's Bridge International Adoption Consultants, Canada 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 2/1 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 The Children's Bridge International Adoption Consultants, Canada, adoption agency in relation to the respondent seeking adoption of the minor whereupon The Children's Bridge International Adoption Consultants, Canada has submitted their undertaking to the effect:
"I, A notary public, in and for the Province of Ontario, by Royal Authority duly appointed, residing at the City of Ottawa, in the Province of Ontario, Dominion of Canada, Do Certify and Attest that the paperwriting hereto annexed are original documents or copies of original documents purporting to be the CERTIFICATE OF UNDERTAKING BY CHIILDREN'S BRIDGE OR SHARMILA PRAKASH KHARE an act whereof being requested I have granted under my Notarial Form and Seal of Office to serve and avail as occasion shall or may require."
Children's Bridge is a licensed agency in the province of Guardianship Petition No. 03/15 Page 21 of 31 Ontario. The agency certifies the following:
"In accordance with Article 17 of the Hague Convention, the Ontario Ministry of Children and Youth Services, after reviewing the child's proposal, will issue a "Notification of Agreement" to Children's Bridge stating that the child proposed and accepted by Sharmila Khare can be entrusted and adopted according to the law of the country and subject to Citizenship and Immigration Canada having determined that the child is eligible to be admitted to Canada will receive an entry visa/permit."
The Children's Bridge also undertates the following:
1) To forward the post placement reports of the child of Sharmila Khare, residing at 49 Spruce Street, Ottawa, ON KIR 6N, 8 along with his /her recent photographs relating to the progress.
2) To send the post placement reports quarterly during first two years and half yearly for the next two years to the City Civil Court and Indian Council of Social Welfare as directed by the Honorable Court, in the prescribed Performa through India's Diplomatic Mission abroad.
The Children's Bridge is a licensed agency in the province of Ontario. The agency undertakes the following:
1. In the case of a disruption of the foreigner's family before the adoption is effected or in case the child is not properly looked after or is maltreated or abused in the adoptive family, Children's Bridge Guardianship Petition No. 03/15 Page 22 of 31 will inform the Director of the Ministry of Child and Youth Services both verbally and in writing under section 72 of the Child and Family Services Act and will inform the Children's Aid Society that will take the child into its care. The Children's Bridge will immediately inform the Indian Diplomatic Mission, the Central Adoption Resouce Agency, Ministry of Welfare and thte concerned Indian recognized placement agency.
2. The Children's Aid Society will inform Children's Bridge of a suitable alternative palcement. Children Bridge will in concurrence with the recognized Indian placement agency that processed the case, report such alternative placement to the Indian Court, which made the order for guardianship and also to Central Adoption Resource Agency.
and taking also into account the absence of any criminal record against the respondent as indicated vide Ex. PW2/11 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 Ottawa, Ontario, Canada 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 Guardianship Petition No. 03/15 Page 23 of 31 which indicates that the respondent is healthy and has the financial and professional means available with same characteristics as described in Ex. PW2/8 and that she is educated with a Masters Degree in Economics and a Bachelors Degree in Mathematics and has assets worth dollars 1009000 and she has an income of dollars 140000 including her investments and savings and she has no liablities and is covered for all contingencies from the Federal Public Services where she works and deem to be in the top income bracket of the Canadian Society and there are no financial constraints in terms of her ability to adopt and raise a child coupled with the factum that the respondent is reported to have demonstrative excellent parenting skills by having already taken one child previously into adoption named Anusha and has a financial capacity appropriate to fulfil her prospective adoptive children's needs and also of the child Anusha whom she has already adopted coupled with the Home Study report showing the respondent to be an open and sociable with a pleasant and friendly treatment and has a wide group of friends and being connected also with her original family and that she would be suitable for adoption one minor The reference letters Ex. PW2/7 colly. of Kalyani Pandya, Jennifer Harper, Levina Ramessar Austin also indicate that the respondent has fair values and skills to adopt a child, is helpful and attentive and Guardianship Petition No. 03/15 Page 24 of 31 ready to help and has always desired to have a child and is very excited to adopt a child.
Through the updated Child Study Report of the minor child 'Dholu' Ex. PW 1/3 indicates that the child is lively and affectionate and a responsive child and loves to play with the other children of the house and his physical and mental growth is normal as per his age and that he is minor problems in the motor skills but is able to express himself well and shows emotions well and is an energetic and playful child.
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 29.08.2013 legally free for adoption and that the child 'S' born on 16.11.2008 had been placed in the custody of the Authorised Adoption Agency Upvan, B5/21, Safdarjung Enclave, New Delhi vide order No. 277/13 dated 28.02.2013 of the Child Welfare Committee, Lajpat Nagar, New Delhi.
Ex. PW 2/5 placed on the record is a Renewal
Certificate of Enlistment issued by the Ministry of Women and Child Development, Government of India whereby CARA has renewed the certificate with Children's Bridge International Adoption Consultants from the year 2006.
The terms and conditions of responsibility imposed on the authorised foreign adoption agency i.e. The Children's Bridge Guardianship Petition No. 03/15 Page 25 of 31 International Adoption Consultants, Canada authorised by CARA are detailed in Ex. PW1/2.
The interaction of the undersigned with the minor on 27.01.2016 in the presence of Ms. Nilofer, a social worker with the SOS Upvan Home i.e. the petitioner in the case that the child was happy to go to his mother and sister whose photographs he has brought and stated that he had been informed by Ms. Nilofer i.e. Neelu Aunty that ehey were his mother and sister and that he wanted to go to them . To the same is the testimony of PW2 Ms. Vijay Raina, the Director of SOS Upvan Home that the child is eager to go as there are several children in the Upvan Home and they also keep preparing the children that his parents would come and that it would be in the interest of the child if he is sent to the adoptive home.
The testimony of PW 2 also indicates that the respodent is keen and desirous of adopting the minor child and shall bring him up as a natural born child and that she would get parental rights over the child after the adoption of the child and that it would be in the interest of the child if he is given into adoption.
Ex. 2/19 is the Certificate of Undertaking issued by the Chilren's Bridge Adoption Consultants to the effect that in accordance with Article 17 of the Hague Convention, the Ontario Ministry of Children and Youth Services, after reviewing the child's proposal, will issue a "Notification of Agreement" to Children's Bridge stating that the Guardianship Petition No. 03/15 Page 26 of 31 child proposed and accepted by Sharmila Khare can be entrusted and adopted according to the law of the country and subject to Citizenship and Immigration Canada having determined that the child is eligible to be admitted to Canada will receive an entry visa/permit and that the Children's Bridge has also undertaken vide its undertaking to the effect that:
1. To forward the post placement reports of the child of Sharmila Khare, residing at 49 Spruce Street, Ottawa, ON KIR 6N, 8 along with his /her recent photographs relating to the progress.
2. To send the post placement reports quarterly during first two years and half yearly for the next two years to the City Civil Court and Indian Council of Social Welfare as directed by the Honorable Court, in the prescribed Performa through India's Diplomatic Mission abroad.
The Children's Bridge is a licensed agency in the province of Ontario. The agency undertakes the following:
1. In the case of a disruption of the foreigner's family before the adoption is effected or in case the child is not properly looked after or is maltreated or abused in the adoptive family, Children's Bridge will inform the Director of the Ministry of Child and Youth Services both verbally and in writing under section 72 of the Child and Family Services Act and will inform the Children's Aid Society that will take the child into its care. The Children's Bridge will Guardianship Petition No. 03/15 Page 27 of 31 immediately inform the Indian Diplomatic Mission, the Central Adoption Resouce Agency, Ministry of Welfare and thte concerned Indian recognized placement agency.
2. The Children's Aid Society will inform Children's Bridge of a suitable alternative palcement. Children Bridge will in concurrence with the recognized Indian placement agency that processed the case, report such alternative placement to the Indian Court, which made the order for guardianship and also to Central Adoption Resource Agency.
Ex. 2/11Colly. is the certificate issued by the Royal Canadian Police of Ontario to the effect that there was no criminal record of conviction related to the respodent found as per the Canadian National repository.
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 Guardianship Petition No. 03/15 Page 28 of 31 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 permits 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 duly recognized by CARA and the factum that the organisation referred to the Organisation of the The Children's Bridge International Adoption Consultants, Canada 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 eight 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 Guardianship Petition No. 03/15 Page 29 of 31 child Dholu is allowed to be given in adoption to the respondent with directions to the respondent to comply with the following directions:
1. The respondent who is appointed as 'guardian' of the person of the minor child Dholu 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 Dholu 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 Dholu 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.
2. 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. The Children's Bridge International Adoption Consultants, Canada ascertain the progress of the child Dholu 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. Canada.
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. 03/15 Page 30 of 31 of the minor child born on 16.11.2008 is directed to be affixed on the certificate which is to be issued in terms of this verdict.
The records of the Guardianship Petition No.03/15 be consigned to the Record Room.
Announced in open Court today (ANU MALHOTRA)
on this 24th day of District & Sessions Judge (South)
February, 2016 Saket/New Delhi.
Guardianship Petition No. 03/15 Page 31 of 31