Delhi District Court
Sos Children'S Villages Of India vs Mr. Minarini Roberto on 3 November, 2016
IN THE COURT OF MS. ANU MALHOTRA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
Guardianship Petition No. CISGP58232016
CNRDLST010040582016
SOS Children's Villages of India,
UPVAN, 21/5, Safdarjung Enclave,
New Delhi
Through its Social Worker
Ms. Nelofer ........ Petitioner
Versus
1. Mr. Minarini Roberto
S/o Mr. Giordano Minarini
2. Mrs. Lovallo Pia
W/o Mr. Minarini Roberto
Both Resident of :
VIA CALABRIA, 140139,
Bologna (BO),
Italy
Through their Attorney
Mrs. Vijay Raina, Director,
SOS Children's Villages of India,
A7, Nizamuddin (West),
New Delhi. .......Respondents
Instituted on: 02.09.2016 Judgment reserved on: 28.10.2016 Judgment pronounced on: 03.11.2016 J U D G M E N T This judgment shall dispose of a petition u/s. 59 (7) of the Guardianship Petition No. CISGP58232016 Page 1 of 30 Juvenile Justice (Care and Protection of Children) Act, 2015 filed by the petitioner SOS Children's Villages of India Upvan on 02.09.2016 through its Social worker Ms. Nelofer whereby the petitioner has sought that the minor female child Bulbul born on 23.03.2011 (hereinafter referred to as 'child') be permitted to be given in adoption to the respondents no.1 & 2 i.e. Mr. Minarini Roberto and Mrs. Lovallo Pia, both Resident of VIA CALABIA 140139, Bologna (BO), Italy (hereinafter referred to as respondent no.1 & 2) as their daughter (the respondents no.1 &2 are arrayed on record through their attorney Mrs. Vijay Raina, Director, SOS Children's Villages of India) and to permit the respondent Nos. 1 & 2 to remove the minor child outside the jurisdiction of this Court for her upbringing to where the respondents no.1 & 2 reside.
The petition is indicated to have been filed by the SOS Children's Villages of India, SOS Upwan, 21/5, Safdarjung Enclave, New Delhi through its social worker and authorized representative Ms. Nelofer, the petitioner being a registered society, registered as a Charitable Organisation running its Orphanage Homes for abandoned/destitute/handicapped children and duly recognized as an agency for placing children in adoption by the Central Adoption Resource Authority (CARA), Ministry of Women and Child Development under the Juvenile Justice Act for giving them in adoption. It has been submitted through the petition that Ms. Nelofer, a social worker has been duly authorized by the petitioner/society to sign, verify and institute the petition and the petition has thus been signed, verified and instituted as such.
Through the petition, it has been submitted that on 22.12.2013, a female child born on 23.03.2011 was found abandoned by the offcial of Guardianship Petition No. CISGP58232016 Page 2 of 30 the police station, New Delhi Railway Station and Child Line, who handed over the care and custody of the child to the petitioner / society and that the parents of the said child did not come to claim her for a considerable period whereafter the petitioner/society filed an application before the Child Welfare Committee, New Delhi for declaring the child as an abandoned child and free for adoption. It has further been submitted through the petition that the Child Welfare Committee after making inquiry, declared the child as an abandoned child and free for adoption vide order dated 16.06.2015 in case No. 698/14 and that the date of birth of the said child was determined by medical examination and the child is free for adoption.
It has further been submitted through the petition that the respondent no.1 was born on 09.10.1967 and is now about 49 years old and that respondent no.2 was born on 14.06.1969 and is now about 47 years old and that respondent Nos. 1 & 2 are permanent residents of Italy being its citizens/nationals.
It has further been submitted through the petition that the respondent nos. 1 & 2 got married on 04.10.2013 and that they are medically and physically fit and healthy but do not have a biological child of their own till date and thus wish to adopt the child to complete their family. It has also been submitted through the petition that the respondent no.1 is employed with Group Formula S.P.A as a Manager on permanent basis with last year gross income being 36.879,80 Euros and that the respondent no.2 is employed in the Municipality of Bologna as a teacher of a Primary Public School on permanent basis and that her last year gross income was 22.957,39 Euros and that the respondent nos. 1 &2 enjoy high status and have sufficient means of livelihood and wish to adopt the minor Guardianship Petition No. CISGP58232016 Page 3 of 30 child Bulbul as their daughter and expressed their desire and intention to adopt the child in accordance with law and they forwarded their documents in support of their desire to adopt the minor child through the recognized agency named "Associazione I'Bambini Dell' Arcobaleno Adozioni Internationali, Italy" which recognized agency has furnished the necessary requisite undertaking in terms of the directions of the Hon'ble Supreme Court of India to look after the interest of the minor, in case the respondent nos. 1 &2 failed to do so for any reason whatsoever.
It has further been submitted through the petition that the petitioner received the 'No Objection Certificate' from the Central Adoption Resource Authority, Ministry of Women and Child Development, Government of India to seek permission from the Court to give the minor child in adoption to the respondents under the Juvenile Justice (Care and Protection of Children) Act, 2015.
It has further been submitted through the petition that the respondents after seeing the Child Study Report, photograph and medical report of the child in question, have approved the child in question for adoption and that the respondents have several documents showing their status, employment and family background etc. besides a Power of Attorney in favour of the Director/official of the petitioner and that all the documents are duly notarised/authenticated and the respondents are enjoying good health as per the medical certificate concerning their health which clearly reveals that they do not suffer, nor have previously suffered from any mental or physical disease or incapacity detrimentally affecting their fitness to have custody of the adoptive child as parents and that the respondents approached the Agency 'Associazione I'Bambini Dell' Guardianship Petition No. CISGP58232016 Page 4 of 30 Arcobaleno Adozioni Internationali, Italy" for adopting the child and that the respondents have been recommended by the said adoption agency which is recognized by the Government of India and is competent to sponsor them.
It has further been submitted through the petition that every attempt has been made by the petitioner to place the minor child in the Indian family but no suitable Indian family came forward to adopt the minor child and the Central Adoption Resource Authority (CARA) declared the child for foreign adoption and that the respondents have come forward from Belgium to adopt the minor child in question and have been found most suitable persons for legal adoption of the child and the CARA has issued the No Objection Certificate in favour of the respondents for adopting the child.
It has further been submitted through the petition that as per law, the respondents have undertaken to send a progress report and photograph of the child to the petitioner quarterly for the first two years and half yearly for the next three years until adoption is complete and also undertake to bring up the child according to their status. It has also been submitted by the petitioner that it is in the interest and welfare of the minor female child if she is given in adoption to the respondents and that no person has been appointed as a guardian of this child, neither has anyone else been granted permission to adopt the child and that the respondents have no interest adverse to that of the minor child and that the petitioner is satisfied that the adoption of the child by the respondents would be in the interest and welfare of the child who would have loving parents and a house to live in and a sense of belonging.
Guardianship Petition No. CISGP58232016 Page 5 of 30Inter alia, through the petition, it has been submitted that the child owns no property and it is in her interest and welfare if she is placed and adopted in a financial and otherwise sound family where she would have a sense of belonging.
Inter alia, the petitioner has submitted that this Court has jurisdiction over the minor since adoption is permissible in terms of the Juvenile Justice (Care and Protection of Children) Act, 2015, as amended.
It has further been submitted through the petition that the petitioner has its office within the territorial jurisdiction of this Court in terms of the Clause 12 of the Guidelines framed by the Government of India and that this Court has jurisdiction to entertain this petition.
In support of the averments made in the petition, the petitioner has placed on record original documents and affidavits of Ms. Nelofer, a social worker who is the signatory to the petition and of Ms. Vijay Raina, Director of the petitioner i.e. the SOS Children Village, Upwan, both dated 16.09.2016. The minor child was also produced on 16.09.2016 and was examined by the undersigned Presiding Officer in her chamber and the proceedings thus, conducted were recorded and are reproduced as under:
"Examination of the minor child Bulbul without oath in the chamber of the undersigned;
"Q. What is your name?
Ans. Bulbul.
Q. How old are you?
Ans. Five years.
Q. Where do you live?Guardianship Petition No. CISGP58232016 Page 6 of 30
Ans. B5/21, Safdarjung Enclave.
Q. With whom do you live there?
Ans. I live with Nilo Aunty, Chika Aunty, Meena Aunty, Anisha Aunty, Lily Aunty, and children, with my friends Khusboo, Savita, Shaboo, Sushmita.
Q. Do you go to School?
Ans. Yes, to the Dakshini Delhi Nagar Nigam Prathmik Vidayalya, Arjun Nagar, New Delhi29. Q What do you study there?
Ans. Poem. (The child has recited a poem about a camel in Hindi).
The child has also recited ABCD to Z. She says she know counting till 100 and that she know tables till 10.
Q. Since when you are living at B5/21, Safdarjung Enclave. Ans. I do not know.
The child is looking a book in her hand.
Q. What is this book?
Ans. It is an album of 'mere Mummy and Pappa ki'.
Q Who gave this Album to you?
Ans. Nilo Aunty.
Q Where do your Mummy and Pappa live?
Ans. At Italy.
Q Where is Italy.
Ans. I do not know.
Q Do you want to go to Italy?
Ans. Haan.
Guardianship Petition No. CISGP58232016 Page 7 of 30Q. Kyun Jana Hai?
Ans. Because Mummy Pappa ki bahut yaad aati hai.
(The child has identified the photographs of the respondents as being her Mummy and Pappa and has identified the parents of respondent no.1 as her Dada and Dadi.
Q Are you happy to go to Italy?
Ans. Yes.
Ms. Nelofer, the authorized signatory and a social worker of the petitioner and Ms. Vijay Raina, the Director of the petitioner were produced as witnesses by the petitioner and were examined as PW1 and as PW2 respectively qua their affidavits submitted on record on 06.10.2016 and 28.10.2016.
Arguments were addressed on behalf of the petitioner by Ld. Counsel Shri Mohinder Singh.
It was submitted on behalf of the petitioner through oral arguments addressed that the minor child Bulbul be given in adoption to the respondents who were not present before the Court.
PW1 Ms. Nelofer, Social Worker of the SOS Children's Village of India, SOS Upvan Home who has vouched to the veracity of her affidavit Ex.PW1/A and the averments contained therein as being true and correct to her knowledge stated that the petition has been filed in relation to the minor child Bulbul aged about 5 ½ years or six years, the whereabouts of whose natural parents are not known. She further stated that the said child came to them through the police and the child wants to go to Italy and that she has never met the respondents and that the child wants to go to her Guardianship Petition No. CISGP58232016 Page 8 of 30 parents. PW1 further testified that the child had been shown the album that had been received from the respondents along with gifts i.e. a teddy bear and other toys and stated that the child wants to go to the respondents. PW1 further submitted that the child is happy in SOS Upvan Home but submitted that it would be in the welfare of the child if the child is given in adoption to the respondents.
PW1 Ms. Nelofer further testified to the order declaring the child legally free for adoption as being Ex.PW1/1 and testified to the photograph of the child on Ex.PW1/3 (Colly), the child study report and further testified that the No Objection Certificate was issued by CARA Ex.PW1/2. Inter alia, PW1 testified that the Child Study Report.
The document Child Study Report Ex.PW1/3 (Colly) duly apostilled and the power of attorney of the adoptive parents and all other apostilled documents referred to in this judgment are accepted in evidence 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 the officers competent to issue the certification by Apostille in the country of their execution as provided and covenanted in the Hague Apostille Convention and taking into account the Apostilled certificate No. 2043/2016 in relation to the medical examination of the minor child and the apostille certificate No. 2047/2016 in relation to the Special Power of Attorney executed by respondent nos 1 & 2 i.e. Mr. Minarini Roberto and Mrs. Lovallo Pia, wife of Mr. Minarini Roberto in favour of Ms. Vijay Raina, Director of SOS Children's Villages of India to Guardianship Petition No. CISGP58232016 Page 9 of 30 do all necessary acts for the adoption.
The petitioner further examined Ms. Vijay Raina, Director of SOS Children's Villages of India as PW2 who vouched to the veracity of the contents of her affidavit Ex.PW2/A and this affidavit related to the minor child in question whose natural parents are not known and this child came to them from the CWC after production before the CWC by the police.
PW2 further testified to the effect that she never met the respondent nos. 1 & 2 and that the minor child Bulbul is born in 2011 and is aged about five years and that the child never met the respondent nos. 1 &2, and that the child wants to go to the respondents and is well prepared to go to them to Italy in view of the photo album which she has seen. PW2 further testified that the respondent nos. 1 &2 wanted to adopt the child and thus they have been designated by the agency CARA for adoption of the child and they have no interest adverse to that of the minor. PW2 further testified that the respondents had seen the photographs of the child but they never had the opportunity to interact with the child. It was also testified by the PW2 that the whereabouts of the natural parents of this child are not known but it would be in the interest and welfare of the child if she is given in adoption to the respondent nos. 1 &2 as presently she is in an orphanage and even if the best care is provided in the orphanage, the child would continue to be an orphan and by giving the child in adoption to the respondents, she would would have a family.
Inter alia, PW2 testified to the special power of attorney executed in her favour by the respondent nos. 1 & 2 placed at page nos. 32 and that the apostille certificate on the reverse of page 15, which certificate Guardianship Petition No. CISGP58232016 Page 10 of 30 bears No. 2047/2016 and thus, the special power of attorney has been exhibited as Ex.PW1/2 in view of the verdict of the Hon'ble Apex Court in the case Laxmi Kant Pandey Vs. Union of India & Other 2010 (12) SCC 735 as already adverted to hereinabove.
Inter alia, PW2 testified to the attested copies of the Passports of the respondent nos. 1 & 2 being duly apostilled with the certificate on the reverse of page 57 and 64 exhibited as Ex.PW1/5 and Ex.PW1/6. PW2 testified to the birth certificate of the respondent no.1 in Italian being at page 65 with the translated version at page 67 and 68 duly apostilled at pages 66 and the reverse of page 68 respectively and are collectively exhibited as Ex.PW1/7 Colly (Pages 65 to 68). PW2 further testified to the birth certificate of the respondent no.2 in Italian being at page 69 with translated version at pages 71 and 72 duly apostilled at pages 70 and the reverse of page 72 as Ex.PW1/8 Colly (Pages 69 to 72), Ex.PW1/9 Colly (Pages 73 to 76) the marriage certificate of the respondents in Italian being at page 73 with its translated version was testified by the witness to be at pages 75 and 76 duly apostilled at page 74 and the reverse of page 76. PW2 further testified to the police clearance report in Italian in relation to the respondent no.1 being at page 77 with its translated version at page 79 and 80 duly apostilled at page 78 and the reverse of page 80 respectively and was testified to be exhibited as Ex.PW1/10 Colly (pages 77 to 80) and further testified the police clearance report in Italian in relation to the respondent no.2 being at page 81 with its translated version at page 83 and 84 duly apostilled at page 82 and on the reverse of page 83 and are collectively exhibited as Ex.PW1/11 colly (pages 81 to 84). PW2 further testified to the medical reports in relation to the respondent nos. 1 and 2 in Guardianship Petition No. CISGP58232016 Page 11 of 30 Italian with translated versions duly apostilled on the reverse of pages 87,88,90,94,95 and 96, on page 98 and on the reverse of pages 99 and 100 being collectively exhibited as Ex.PW1/2 Colly (pages 85 to 100). PW2 further testified to the income certificates of the respondent nos. 1 & 2 are at pages 101 to 120 which are duly apostilled being collectively exhibited as Ex.PW1/13 Colly (Pages 101 to 120). PW2 testified to the total income certificate of the respondent nos. 1 &2 being at pages 121 in Italian with the apostille at 122 and the translated version in English at pages 123 and 124 apostilled on the reverse of 123 and 124 and Ex.PW1/14 Colly (pages 121 to
124) and testified to the bank statements of the respondent nos. 1 and 2 in Italian being at page 125, duly apostilled thereof at page 126 with the translated versions at pages 127 and 128 duly apostilles on the reverse of pages 127 and 128 and collectively exhibited as Ex.PW1/15 Colly. The child arrangement was testified to be exhibited as Ex.PW1/6 Colly (pages 129 to 132) in Italian being at page 129 duly apostilled at page 130 with its translation at page 131 and 132 with the apostills on the reverse of pages 131 and 132. the reference letters in relation to the respondent nos. 1 &2 in Italian with its English translations duly apostilled and collectively exhibited as Ex.PW1/17. The adoption guarantee letter with the photographs of the respondent nos. 1 & 2 with duly apostilled was testified by the witness to be Ex.PW1/18. The photographs of the family of the respondent nos. 1 & 2 are duly apostilled at page 163 was testified by the witness as Ex.PW1/19 Colly. The child approval certificate duly apostilled on the reverse thereof was testified by PW2 to be exhibited as Ex.PW1/20. The child proposal form duly apostilled on the reverse thereof was testified by the witness to be exhibited as Ex.PW1/21 and the declaration of Guardianship Petition No. CISGP58232016 Page 12 of 30 willingness with authentication with apostilled on the reverse and was testified to be Ex.PW1/22 with the undertaking of the adoptive parents as being Ex.PW1/23.
Vide the undertaking Ex.PW1/23, the respondent nos. 1 and 2 undertook to the effect that they would legally adopt the minor child Bulbul born in India on 23.03.2011 and would intimate to the SOS Children's Villages of India at New Delhi and would provide their child with necessary education and up bringing according to their status as adoptive parents and that they would send to the Court processing their case and also to the Institution where the child progress report along with the photographs of the minor child to the process agency on a quarterly basis during the first year and six monthly basis in the second year from the date of arrival of the adopted child in Italy.
The said undertaking of the respondent nos. 1 and 2 and the authentication of the said undertaking is duly apsotilled on the reverse vide apostilled no. 2011/2016.
PW2 also testified to the home study report of the prospective adoptive parents being Ex.PW1/3 and testified to the certificate issued by the Juvenile Court for adoption permitting the adoption of a child through international adoption by the respondents as Ex.PW1/4 (Colly).
The No Objection Certificate issued by CARA Ex.PW1/2 dated 29.07.2016 indicates that the CARA has no objection for the placement of the minor child Bulbul, born on 23.03.2011 with the prospective parents Mr. Minarini Roberto and Mrs. Lovallo Pia i.e. the respondent nos. 1 and 2 in terms of Article 17.c of the Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Guardianship Petition No. CISGP58232016 Page 13 of 30 Adoption 1993 and in conformity with the "Guidelines Governing Adoption of Children, 2015" subject to the fulfillment of Terms & Conditions mentioned on the reverse of the certificate which are to the effect:
(i)This NOC is nontransferable and issued with an ultimate view of adoption of the child as per Juvenile Justice (Care & Protection of Children) Act, 2000 as amended in 2006.
(ii)The Specialised Adoption Agency (SAA), as mentioned overleaf, will file the application in the Competent Court within 5 days from the date of receipt of this NOC for an appropriate Adoption Order. It shall return the original NOC to CARA with reasons, in case the adoption is not getting through.
(iii)In accordance with the directions of the Hon'ble Supreme Court of India in L.K. Pandey vs. Union of India (WP No. 1171 of 1982), the competent courts are to dispose off the case within a maximum period of two months from the date of filing.
(iv)The proceeding in the case should be held by the Competent Court in camera and should be regarded as confidential as desired by Hon'ble Supreme Court in the said Judgment.
(v)When the adoption order concerning the child is made by the concerned Court, immediate intimation of the same shall be given to Central Adoption Resource Authority and the State Government concerned.
(vi)The SAA shall apply for passport for the adopted child after the court order is received and the application shall include documents mentioned in Paragraph 83(3) of these guidelines.
(vii)The date of birth of the child as mentioned in the court order Guardianship Petition No. CISGP58232016 Page 14 of 30 would be taken as the date of birth.
(viii)The concerned Authorized Foreign Adoption Agency/Government Department/Central Authority/Indian Diplomatic Mission in the receiving country will taken the responsibility in the case of disruption in the adoption of the child as laid down in the Guidelines 'Governing Adoption of Children2015' and Art.21 of the Hague Convention, as the case may be.
It has also been specified through the said No Objection Certificate Ex.PW1/2 that the Foreign Adoption Agency 'Associazione I'Bambini Dell'Arcobaleno Adozioni Internationali, Italy is authorized by CARA and that the Specialised Adoption Agency (SOS Children's Villages India (Upvan), Delhi is recognized by the State Government to place the children in Adoption. That the legal procedure has to be completed in terms of Section 41 (3) of the Juvenile Justice (Care & Protection of Children) Act, 2000.
The Child Study Report Ex.PW1/3 in relation to the minor child Bulbul indicates that the child has a good rapport with them where she lives. The examination of the minor child by this Court on 16.09.2016 indicates that the child wants to go to Italy and that she has identified the respondents on the photographs to be her parents and has also identified the parents of the respondent no.1 as Dada and Dadi (grand parents) and that she stated that she is happy to go to Italy. The minor child stated her age as being 5 years and could recite poem in Hindi and could recite the ABC from A to Z and stated that she could count till 100 and she knew the tables till 10 but did not know since when she was living with the SOS Villages of India. Ex.PW1/1, the order of the Child Welfare Committee indicates that Guardianship Petition No. CISGP58232016 Page 15 of 30 the child has been declared legally free for adoption. The medical examination of the child on the record indicates that she has fully developed motor skills and is medically fit both physically and mentally and does not suffer from any chronic disease or disability.
The undertaking of the Agency also exhibited as Ex.PW1/2 placed on record at page 33 of the documents states categorically that the Foreign Adoption Agency has assured that the respondents, the adoptive parents would legally adopt the minor child Bulbul born on 23.03.2011 in accordance with the law of the Italy within a period not exceeding two years from the arrival of the child and would send three certified copies of the adoption order each to the Social or Child welfare agency in India through which the application for guardianship is processed for filing in the Court and one copy would be sent to the CARA and that the adoptive child would be authorized to enter and reside permanently in Italy, according to the Italian law, through a Permit of Entry under Article 32.1 of Hague Convention on intercountry Adoption of 1993, released by Italian Central Authority upon submission of due documents.
Ex.PW1/3, the Home Study Report of the prospective parents indicates that they were well placed and well educated and whereas the respondent no.1 works in a company, the respondent no.2 is a teacher with both having adequate accommodation comprising of a flat comprising of an entrance, living room with a little kitchen, two bedrooms, a bathroom, a balcony and a kitchen and that the house is an area of the first suburbs, well served with the public means of transports and services with the hospital within area of ten minutes and there are facility of school, sports activities, library and playground also and that the respondents being in a good Guardianship Petition No. CISGP58232016 Page 16 of 30 marital relationship inter se and that they had also made their anticipated plans for the adopted child for rearing her into the family and have also provided for the rehabilitation plan for the child in the event of any eventuality for the adoptive parents and that both the respondents are in good state of health and do not have any medical pathologies and are not under any psychologist therapy or psychiatrist therapy.
Placed on record is also the Police Clerance Report in relation to both the respondents indicating that they do not have any criminal antecedents.
On behalf of the petitioner, reliance was placed by the Ld. Counsel for the petitioner on the verdicts of the Hon'ble Apex Court in the cases 'Laxmi Kant Pandey Vs. Union of India & Other' AIR 1984 SC 469; 'Laxmi Kant Pandey Vs. Union of India & Other' AIR 1986 SC 272; 'Laxmi Kant Pandey Vs. Union of India & Other' AIR 1987 SC 232; 'Laxmi Kant Pandey Vs. Union of India & Other' AIR 1992 SC 118; 'Laxmi Kant Pandey Vs. Union of India & Other' 2010 (4) SCC (Civil) 736.
Reliance was also placed on behalf of the petitioner on the notification dated 17.07.2015 numbered SO 1945 (E) issued by the Ministry of Women and Child Development as the guidelines governing adoption of child, which guidelines govern the adoption procedure of orphan/abandoned and surrendered child in the country from the date of the notification and which guidelines replaced the guidelines governing the adoption of child 2011. The said guidelines refer and draw support from The Juvenile Justice (Care and Protection of Children) Act, 2000 & Rules framed thereunder; Judgment dated 08.02.2013 of the Hon'ble Supreme Guardianship Petition No. CISGP58232016 Page 17 of 30 Court in the case of Stephaine Joan Becker Vs. State and Anr. (Civil Appeal No. 1053 of 2013); Judgment of the Hon'ble Supreme Court in the case L.K. Pandey Vs. Union of India in WP (Crl.) No. 1171 of 1982; UN Convention on the Rights of the Child, 1989; and The Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, 1993.
The Guidelines Governing Adoption of Children 2015 now in force w.e.f. 17.07.2015 define in terms of Section 2 (2) thereof an 'abandoned' child means 'an unaccompanied and deserted child who is declared abandoned by the Child Welfare Committee after due inquiry.' The fundamental principles governing adoption have been 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 Guardianship Petition No. CISGP58232016 Page 18 of 30 whether or not he has his own biological son or daughter, can adopt a child;
(c) single female is eligible to adopt a child of any gender;
(d) single male person shall not be eligible to adopt a girl child;
(e) in case of a couple, the consent of both spouses shall be required;
(f) no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship;
(g) the age of prospective adoptive parents as on the date of registration shall be counted for deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of different age groups shall be as under 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. CISGP58232016 Page 19 of 30 "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 provided in Rule 18 of the said guidelines which is as under : (1) The specialised adoption agency shall file an application in the competent Court with relevant documents as mentioned in Schedule Guardianship Petition No. CISGP58232016 Page 20 of 30 8 within seven working days from the date of receipt of acceptance of the child by the prospective adoptive parents, for obtaining the adoption order from Court and the specialised adoption agency shall enclose the documents in original along with the application; (2) In case the child is from a child care institution, which is located in another District, the specialised adoption agency shall file the adoption petition in the concerned Court of that district;
(3) The Court will hold the adoption proceedings incamera and dispose of the case within a period of two months from the date of filing of the adoption petition by the specialised adoption agency; (4) The specialised adoption agency shall obtain a certified copy of the adoption order from the Court and will forward it to the prospective adoptive parents within ten days, besides posting a copy of such order and making necessary entries in the Child Adoption Resource Information and Guidance System.
(5) Registration of a deed of adoption shall not be necessary. (6) The specialized adoption agency shall obtain the birth certificate of the child from the birth certificate issuing authority and provide it to the prospective adoptive parents within ten days from the date of availability of adoption order, with the name of adoptive parents, as parents, and date of birth as recorded in the adoption order.
Rule 20 of the said guidelines provides for the follow up progress of the adopted child and specifically vide Rule 20 (6) it has been provided that the prospective adoptive parents shall furnish an undertaking to the effect that they would allow personal visit of the representative of Guardianship Petition No. CISGP58232016 Page 21 of 30 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 inter country adoption and all applications by foreigners for taking the Indian child in adoption which are to be forwarded by social or child welfare agency in the foreign country to such Central Adoption Resource Agency which in turn is to forward them to one or other recognized or child welfare agency in the country. It has also been laid down by the Hon'ble Apex Court in the said cases to the effect that the needful must be made to ascertain an Indian family to take the child in adoption and it is only if no Indian family comes forward to take the child in adoption, the child may be regarded as available for intercountry adoption. The Hon'ble Apex Court further directed the recognized social or central welfare agency to file applications for appointment of the foreigners as guardian of the child with directions further that it would be recommended that the applications must Guardianship Petition No. CISGP58232016 Page 22 of 30 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/herself in the family and community of the foreigner and would be able to get the warmth and affection of the family life and also whether it would be in the interest of the child to be taken in adoption of the foreigner, it is only if the Court is satisfied that it would be making an order of adoption permitting him/her to remove the child to his own country and with a view to eventual adoption and that the Court shall also introduce a condition in the order that the foreigner who is appointed guardian shall make proper provision by way of deposit or bond or otherwise to enable the child to be repatriated to India and should it become necessary for any reason with further directions that the foreigner who is Guardianship Petition No. CISGP58232016 Page 23 of 30 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 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 Guardianship Petition No. CISGP58232016 Page 24 of 30 submissions made on behalf of the petitioner, the Child Study Report of the child Ex.PW1/3 Colly indicates that the child has fine motor skills, is intelligent child and capable to catch/learn anything quickly and is a keen observer about her surroundings, she is loud and clear in her voice, able to articulate herself and speaks Hindi very well. The Senior Social Worker of SOS Adoption Services has also reported that she is a bright and active child and she can easy socialize herself by taking part in different group activities and enjoys the company of her peer group, is being toilet trained and does most of her routine work without much support and is also being trained for table manners and she is a child with good energies and charismatic aura that can catch the attention of anyone towards her and proper care, warmth and love would channelize her energies and help her to bloom into a confident individual in future.
The date of birth of the minor child is 23.03.2011, the Home Study Report of the prospective parents i.e. respondent nos. 1 & 2 which includes their social and economic status, family background, description of their home, standard of living, other family members and health status and the testimonies of PW1 & PW2 examined in the Court on 06.10.2016 and 28.10.2016 bring forth that the date of birth of the minor child is 23.03.2011 (aged 5 years 8 months & 03 days as of today) and that the respondent no.1 & 2 are aged about 49 years and 47 years approx respectively and taking into account the NOC issued by the CARA Ex.PW1/2 dated 29.07.2016 qua the no objection of the CARA in relation to the minor child in question being placed with the prospective adoptive parents i.e. respondent nos. 1 & 2 and as indicated vide the said NOC Ex.PW1/2, the Foreign Adoption Agency Associazione I'Bambini Dell' Guardianship Petition No. CISGP58232016 Page 25 of 30 Arcobaleno Adozioni Internationali, Italy is authorized by the CARA coupled with the special power of attorney executed by the respondent nos. 1 & 2 in favour of Ms. Vijay Raina, Director, SOS Children's Villages of India i.e. Ex.PW1/1 whereby respondents have ratified all acts, deeds and things done and have agreed to remain bound by all the acts by the executors of the special power of attorney coupled with the undertaking issued by the Foreign Adoption Agency Associazione I'Bambini Dell' Arcobaleno Adozioni Internationali, Italy Ex.PW1/2, whereby the said Foreign Adoption Agency has made a commitment that in case of disruption or repatriation of the minor child, the foreign adoption agency would abide by the specific provisions laid down in the Indian Guidelines and taking into account the absence of any criminal record against the respondent nos. 1 & 2 as indicated vide Ex.PW1/10 and Ex.PW1/11, declaration of the respondent nos. 1 & 2 vide Ex.PW1/22 that they would take care of the minor child to the best of their ability, the agreement on the child proposal Ex.PW1/20 Colly issued by the President of the Associazione I'Bambini Dell' Arcobaleno Adozioni Internationali, Italy for the adoption proposal by the respondents of the minor child, the Home Study report of the respondents Ex.PW1/3 which brings forth that the respondent nos. 1 & 2 are in good health and motivated to adopt the minor child, coupled with the examination of the minor child which indicates that she is looking forward to go to with the respondents and that on seeing an album maintained by the respondents, she states that she wants to go home and to her parents and she identified the photographs of the respondent nos. 1 & 2 as being her parents and has also identified the parents of the respondent no.1 being Dada and Dadi (grand parents), coupled with the Guardianship Petition No. CISGP58232016 Page 26 of 30 factum that the minor child has been declared legally free by the Child Welfare Committee vide Ex.PW1/1 dated 26.05.2014, coupled with the undertaking given by Foreign Adoption Agency already detailed hereinabove, coupled with the factum that there is no criminal record against the respondents and taking into account the interaction of the minor child with the undersigned and the testimonies of PW1 & PW2 and the record which all bring forth that the respondents are happy to adopt the minor child, coupled with the minor's child response and there being nothing adverse against the respondents, on a consideration of the submissions made through the Child Study Report, Home Study Report of the prospective adoptive parents, examination of the minor child, the No Objection Certificate issued by CARA qua the minor child being placed with the adoption to the prospective adoptive parents i.e. the respondent nos. 1 and 2, the factum that the foreign adoption agency Associazione I'Bambini Dell' Arcobaleno Adozioni Internationali, Italy is authorised by CARA coupled with the Special Power of Attorney executed by the respondent nos. 1 & 2 i.e. Ex.PW2/1 whereby the respondents have ratified all acts, deed and things done and have agreed to remain bound by all the acts by the executors of the special power of attorney coupled with the undertaking issued by the Foreign Adoption Agency Associazione I'Bambini Dell' Arcobaleno Adozioni Internationali, Italy which had made a commitment that in case of disruption or repatriation of the minor child, the foreign adoption agency would abide by the specific provisions laid down in the Indian Guidelines before they would take care of the minor child with the approval of the CARA and after seeking necessary information from CARA they would report the alternative place to the Guardianship Petition No. CISGP58232016 Page 27 of 30 concerned Court and would reimburse the expenses of the Indian and Social welfare agency as fixed by the Court towards the maintenance and processing charge fee. The home study report of the respondents Ex.PW1/3 indicates that the respondents are in good health and motivated to adopt the minor child coupled with the factum that the minor child is likewise in good health and she identifies the respondent's parents as her grand parents as she identified the parents of the respondent no.1 as being her Dada and Dadi coupled with the factum that the minor child is legally free for adoption by the Child Welfare Committee with the declaration Ex.PW1/1 and the undertaking of the Foreign Adoption Agency and the factum that there is no criminal record against the respondents and taking into account the testimonies of the respondent nos. 1 & 2 and the records which brings forth that the respondents are eager to adopt the minor child coupled with the minor's child response and there being nothing adverse against the respondents, it is considered appropriate to allow the petition in as much as the requisite guidelines of the year 2015 and the directions in the verdicts of the Hon'ble Apex Court in the cases 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 she is given into adoption to the respondents as they are desirous of adopting a child and undertake to look after the child to the best of their ability.
Taking the totality of the circumstances, thus, into account and also taking into account all the legal parameters in terms of the verdict of the Hon'ble Apex Court and the Hague Convention on Protection of Children and Cooperation In Respect Of Intercountry Adoption and the Guardianship Petition No. CISGP58232016 Page 28 of 30 Convention on the Rights of the Child dated 20.11.1989 and taking into account the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 which permits the Court to allow a child to be given in adoption to a person and taking into account the factum that the petitioner is duly recognized by the CARA and the factum that the organisation referred to the Associazione I'Bambini Dell' Arcobaleno Adozioni Internationali, Italy is also duly recognized and also the factum that the Child Welfare Committee has declared the child 'abandoned' and has certified that the child may be given in adoption and that the child is legally free for placement in adoption as an abandoned child and taking into account the fitness of the respondents also and the factum that the child is still below the age of seven years and it would be appropriate that an expeditious adoption is permitted so that she integrates into her new family, it is considered appropriate to allow the petition and the minor child is allowed to be given in adoption to the respondents with directions to the respondent to comply with the following directions:
1. The respondent no.s 1 & 2 i.e. Mr. Minarini Roberto and Mrs. Lovallo Pia, both Resident of VIA CALABRIA 140139, Bologna (BO), Italy who are also appointed as 'guardians' of the person of the minor child Bulbul in terms of Section 7 (1) (a) of the Guardian and Wards Act, 1890 and in terms of Section 7 (1) (b) of the said enactment are declared as the 'guardians' of the minor child Bulbul and in terms of the directions of the Hon'ble Apex Court, are directed to submit to the Court and also to the petitioner i.e. SOS Childrens Village of India, UPVAN, 21/5, Safdarjung Enclave, , New Delhi and to the CARA, progress reports of the minor child Guardianship Petition No. CISGP58232016 Page 29 of 30 Bulbul along with her recent photographs quarterly during the first two years and half yearly for the next three years from the date of the arrival of the adopted child in the receiving country.
2. The respondents shall also furnish an undertaking to the effect that they would allow personal visits of the representative of the authorized foreign adoption agency i.e. Associazione I'Bambini Dell' Arcobaleno Adozioni Internationali, Italy to ascertain the progress of the child Bulbul with them i.e. the respondents for at least a period of two years from the date of arrival of the child in the receiving country i.e. Italy.
The respondents are thus directed to execute an adoption deed in respect of the minor child and place an attested copy thereof on the record of this Court within three months from the date of the order. The photograph of the minor child born on 23.03.2011 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. CISGP5823 2016 be consigned to the Record Room.
Announced in open Court today (ANU MALHOTRA)
on this 3rd day of District & Sessions Judge (South)
November, 2016 Saket/New Delhi.
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