Delhi District Court
Sos Childrens Village Of India vs Mr. Andre Jose Campos on 24 February, 2016
IN THE COURT OF MS. ANU MALHOTRA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
Guardianship Petition No. 02/15
ID No.: 02406C 0407422015
SOS Childrens Village of India,
SOS Upvan Home,
B5/21, Safdarjung Enclave, New Delhi
Through its Social Worker/AR
Ms. Nilofer ........ Petitioner
Versus
1. Mr. Andre Jose Campos,
son of Mr. Joseph Campos,
2. Mrs. Minakshi Campos,
wife of Mr. Andre Jose Campos,
Through her Attorney
Mrs. Vijay Raina, Director,
SOS Childrens Village of India,
A7, Nizamuddin (West),
New Delhi.
Both R/o 3, Blenmont Court, Phoenix,
Maryland 21131, Baltimore County,
USA. .......Respondents
Instituted on: 18.12.2015
Judgment reserved on: 12.12.2016
Judgment pronounced on: 24.02.2016
Guardianship Petition No. 02/15 Page 1 of 31
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 minor child Rahul (hereinafter to refer to as the child) born on 20.03.2008 be given in adoption to the respondents Mr. Andre Jose Campos, son of Mr. Joseph Campos and Mrs. Minakshi Campos, wife of Mr. Andre Jose Campos, both resident of 3, Blenmont court, Phoenix, Maryland 21131, Baltimore Country, USA as her son and that they be permitted to remove the minor child outside the jurisdiction of this Court for his upbringing to where the respondent resides, they being a resident of 3, Blenmont Court, Phoeniz, Maryland 21131, Baltimore Country, USA.
The petition is indicated to have been filed by the SOS Children Villages of India, SOS Upwan Home, B5/21, Safdarjung Enclave, New Delhi through its social worker and Authorised Representative Ms. Nilofer, the petitioner being a registered society, registered as a Charitable Organisation running its Orphanage Homes for abandoned/destitute/handicapped children and duly recognized as an agency for placing children in adoption by the Central Adoption Resource Authority, Ministry of Women and Child Development under the Juvenile Justice Act for giving them in adoption. It has been submitted through the petition that Ms. Nilofer, a social worker has been duly authorized by the petitioner/society to sign, verify and institute the petition and the petition Guardianship Petition No. 02/15 Page 2 of 31 has thus been signed, verified and instituted as such.
Through the petition, it has been submitted that on 15.03.2013, the minor male child namely Rahul born on 20.03.2008 was found abandoned by the police officials of PS Sunlight, Delhi 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 him for a considerable period whereafter the petitioner/society filed an application before the Child Welfare Committe, New Delhi for declaring the child as an abandoned child and free for adoption. It has been further submitted through the petition that the Child Welfare Committe after making inquiry, declared the child as an abandoned child and free for adoption vide certificate dated 17.12.2013 in case No. 426/13 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 no.1 was born on 09.04.1968 and that the respondent no.2 was born on 06.09.1971 and that they are approximately 47 & 41 years old respectively and are permanent residents of the USA being its citizens/nationals and that they were married to each other on 10.04.1999.
Inter alia,it has further been submitted through the petition that the respondent No.1 & 2 are both medically and physically fit and healthy and blessed with two boys but their two biological sons died from a congenital heart defect within three and five months of their birth and Guardianship Petition No. 02/15 Page 3 of 31 that the respondent nos. 1 & 2 adopted a child Kiran from India and their son Kiran has been one of the most rewarding experiences of their lives and now they wish to adopt another child from India to enlarge their family. It has further been submitted through the petition that the respondent no.1 was born in Hyderabad, India migrated in 1982 to USA and now working as Senior Vice President in GE Capital Markets, Danburu, CT with gross salary is US $ 167,750/ plus bonus and that the respondent no.2 is a homemaker and stays at home and that the respondent nos. 1 & 2 enjoy high status and sufficient means of livelihood and now have expressed their desire and intention to adopt the child Rahul now named Rahul Joy Campos as their son. It has inter alia, been submitted through the petition that the respondents have forwarded their documents in support of their desire to adopt the minor child Rahul born on 20.03.2008 through the recognized agency named World Association for World Association for Children & Parents (WACAP), USA who have furnished their necessary undertakings as per the directions of the Hon'ble Apex Court 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 by the petitioner that it has received a No Objection Certificate from the Central Adoption Resorce Authority, Ministry of Women and Child Development, Government of India, to seek persmission from the Court to give the minor in adoption to the respondents under the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended. Guardianship Petition No. 02/15 Page 4 of 31
Inter alia, the petitioner has submitted that the respondents after seeing the Child Study Report, photograph and medical report of the child in question, have approved the child for adoption and 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 these documents are duly notarized and authenticated. It has also been submitted through the petition that the respondents enjoys good health as per the medical certificate concerning their health which clearly reveals that they does not suffer, nor have they previously suffered from any mental or physical disease or incapacity detrimentally affecting their fitness to have the custody of the abandoned child as their son and that the respondents approached the World Association for Children & Parents (WACAP), USA for adopting the child and that the respondents have 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 respondents have now come forward from USA to adopt the minor child Rahul and have been found to be the most suitable persons for legal adoption of the child and CARA has issued NOC in favour of the respondents for adopting the child. Guardianship Petition No. 02/15 Page 5 of 31
It has further been submitted by the petitioner that as per law, the respondents have 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 respondents and that no person has been appointed as guardian of this child, neither has anyone else being granted permission to adopt the child and that the 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.
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 Guardianship Petition No. 02/15 Page 6 of 31 to the petition and of Ms. Vijay Raina, Director of the petitioner i.e. the SOS Children Village, SOS, Upwan Home in terms of the directions dated 27.01.2016 on 18.02.2016. The minor child was also produced on 27.01.2016 and was examined by the undersigned Presiding Officer in her chamber and the proceedings thus conducted were recorded and are reproduced as under:
"Statement of the Child Rahul, age 6 years, r/o B5/21, Safdarjung Enclave, New Delhi.
Q. Is it good to tell the truth?
Ans. Yes.
Q. Is it good to tell lie?
Ans. No. Q Will you speak the truth?
Ans. Yes.
Q What have you brought?
Ans. An Album.
(The child has shown an album with photographs, in which he identifies respondent no.1 as being his father, and respondent no.2 as being his mother and has also identified the photograph of another boy to be that of Kiran as his brother).
(The child states that he has met the two respondents in America, and wants to be with them, as he like them. The child is visible in the photographs with the respondent no.s 1 & 2 and appear happy. He states that the two respondents love him.).
Q. Do you go to school?
Ans. Yes.
Q What do you stduy in School?
Ans. English, Hindi, Maths.
Q. Which subject to you like best?
Ans. English.
Q What to do want to become after you grow up?
Guardianship Petition No. 02/15 Page 7 of 31 Ans. A doctor because a doctor 'theek karta hai'.
The above contents are the true on account of the examination of the child Rahul."
Ms. Nilofer, the authorized signatory and a social worker of the petitioner and Ms. Vijay Raina, the Director of the petitioner were produced as witnesses by the petitioner who were examined on18.02.2016 as PW1 & PW2 respectively qua their affidavits submitted on record, as Ex.PW1/A and Ex.PW2/A respectively.
Arguments were addressed on behalf of the petitioner by Ld. Counsel Shri Mohinder Singh and submissions were also made.
It was submitted on behalf of the petitioner through oral arguments addressed that the minor child Rahul be given in adoption to the respondents who were not present before the Court.
PW1 Ms. Nilofer was further examined by the Court and her testimony is reproduced as under: (The whereabouts of the natural parents of the minor child are not known. The child had come to ask through CWC. in reply to a specific court query.). This child is legally free for adoption and the order to that effect of the CWC is Ex.PW.1/1. The No Objection Certificate issued by CARA is Ex.PW.1/2. The child study report of the child has been prepared by Ms. Akshita, social worker of the petitioner and I recognize her signatures thereon at point A on Ex.PW.1/3. I recognize her signatures as I have seen her writing and signing during the course of my official duties as she has worked with me and furthermore she writes the ledger A in the form of a Guardianship Petition No. 02/15 Page 8 of 31 Star. The photographs of the minor is there at point X on the child study report and the said photograph is Ex.PW.1/4 (I recognize the photograph of the child as the child stays with me at Upvan - in reply to a specific court query).
(There is no Indian family that has come forward to adopt the child. The child is aged six years. The child has met the respondents no.1 & 2 about five / six months ago i.e. Mr. Andre Jose Campos and Mrs. Meenakshi Campos. They met the child at the Upvan home. The respondents no.1 &2 had come to Delhi for about 15 days and had met the child two/three times during this period. I had seen the interaction between the child and the two respondents and the behaviour of the respondents no.1 & 2 was good. The child is aware that the respondents no.1 & 2 are his parents and that he has to go with them. The child wants to go with the respondents and has so informed himself. It would be in the interest of the child if the child lives with the respondents. The child here is living under adoption programme and with the respondents he would be living with parents which would be better for his future - in reply to a specific court queries).
Ms. Nilofer through his affidavit Ex.PW1/A has further testified to her affidavit Ex. PW 1/A that every attempt was made to place the above said child in an Indian family but no suitable Indian family came forward to adopt the child as the child is about 7 years old and as such Central Adoption resource Authority (CARA) has cleared the child for foreign adoption. It has further been testified to her affidavit that in Guardianship Petition No. 02/15 Page 9 of 31 view of the fact that as adoption is permitted under the said Act, it will be in the interest and for the welfare of the minor that he be given in adoption to the respondent nos.1 & 2 as on completion of the process of adoption, he will get complete security by acquiring inheritance rights as that of a biological son of respondent nos. 1 & 2. She, inter alia, testified to the effect that the contents of her affidavit dated 06.01.2016 were true and correct to her knowledge and testified to Ex. PW1/A to the effect that the order for declaring the child Rahul legally free for adoption was received from the Child Welfare Committee and testified to the same being Ex. PW1/1. The No Objection Certificate issued by the Central Adoption Resource Authority in relation to the minor child Rahul was produced as Ex. PW1/2, the updated child study report of the minor child Rahul was testified by the witness to have been prepared by Ms. Akshita, Social Worker whose signatures PW1 identified having stated that she had seen her writing several times during the course of her official duties as she writes the ledger A in the form of a Star. The said document was exhibited in view of the certificate in terms of the verdict of the Hon'ble Apex Court in the Case Laxmi Kant Pandey Vs. Union of India & Other 2010 (12) SCC 735 and directions in paragraph 6 of the said verdict directing the Courts of competent jurisdiction dealing with adoption / guardianship cases to accept documents authenticated by officers competent to issue certification by Apostille in the country of their execution as provided and covenanted in the Hague Apostille Guardianship Petition No. 02/15 Page 10 of 31 Convention and taking into account the certificate at page 17 No. CK 7469209 indicated to have been issued in Spain as an Apostille in terms of the Hague Convention dated 05.10.1961.
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 respondents as on completion of the process of adoption he would get living with parents which would be better for his future and it was further submitted by the witness PW.1 hat the whereabouts of the natural parents of the minor child are not known. The child had come to us through CWC, in reply to a specific court query; that this child is legally free for adoption and the order to that effect of the CWC is Ex.PW.1/1; that No Objection Certificate issued by CARA is Ex.PW.1/2 and the child study report of the child has been prepared by Ms. Akshita, social worker of the petitioner and that she recognized her signatures thereon at point A on Ex.PW.1/3 as she had seen her writing and signing during the course of her official duties as she had worked with me and furthermore she writes the letter A in the form of a Star. The photograph of the minor was identified by the witness there at point X on the child study report and the said photograph is Ex.PW.1/4 and she stated that she recognized the photograph of the child as the child stays with her at Upvan.
The witness PW.1 further stated that there is no Indian family that has come forward to adopt the child; that the child is aged six years and that the child has met the respondents no.1 & 2 i.e. Mr. Andre Jose Campos Guardianship Petition No. 02/15 Page 11 of 31 and Mrs. Meenakshi Campos. about five / six months ago; and that they met the child at the Upvan home. She further stated that the respondents no.1 &2 had come to Delhi for about 15 days and had met the child two/three times during this period; and that she had seen the interaction between the child and the two respondents and the behaviour of the respondents no.1 & 2 was good. She further stated that the child is aware that the respondents no.1 & 2 are his parents and that he has to go with them; and that the child wants to go with the respondents and has so informed himself. She further stated that it would be in the interest of the child if the child lives with the respondents and that the child is living there under adoption programme and with the respondents he would be living with parents which would be better for his future.
PW2 examined by the petitioner was Ms. Vijay Raina, Director of the petitioner/society and testified to the effect that she was the duly constituted attorney of the respondent Nos. 1 & 2 and testified to Ex.PW2/1 being the power of attorney in her favour executed by the respondents. She further testified that the contents of her affidavit Ex. PW2/B bearing her signatures thereon are were true and correct to her knowledge. She testified to the home study report of the respondents having been received from CARA and duly authenticated and authorised with the certificate of Apostille (i.e. the home study report as Ex. PW2/1). She further testified to the effect that Ex. PW 2/3 Colly, were photographs of the respondents, and their adopted son Kiran. She further testified to Guardianship Petition No. 02/15 Page 12 of 31 the apostilled medical certificates of the respondents Ex.PW2/4 (colly) and the medical certificate of Kiran as being ex.PW2/5 which medical certificate indicates that the respondent nos. 1 & 2 and their adopted son Kiran Campos are in good health. The income and asset declaration of the respondents was testified to be Ex.PW2/6 (colly) by the PW2. She further testified that the respondent no.1 has studied finance and is working as a Senior Vice President with a company at the United States. The earning of the respondent no.1 is US $ 1,67,000 per annum and he also gets yearly perks. Inter alia, PW2 testified to the effect that the respondent no.2 Meenakshi Campos has studied Psychology but is a home maker since the adoption of the first child Kiran. PW2 testified to Ex.PW2/7 being the employment certificate of the respondent no.1 which certificate indicates that the respondent no.1 is currently working as a Senior Vice President in Capital Markets Organization of GE Capital Markets, Inc. and has an annual salary of US $ 167,750 equivalent to Rs. 10,068,355/ and also got incentive compensation bonus US $ 136,300 equivalent to Rs.8,180,726/ based on then current exchange rates $1 to $ 60.02. Ex.PW2/7 has been issued by the Managing Director of GE Capital Markets, Inc. The income tax returns of the respondent no.1 have also been placed on the record as Ex.PW2/8. The bank reference of the respondent nos. 1 & 2 was testified by PW2 to be Ex.PW2/9 which indicates that the M&T Bank at Burke Ave. Branch/Assistant Branch Manager, 32 York Rd. Towson, MD 21204, the respondents had been the customers since 20.08.2013 and that they had a good standing.
Guardianship Petition No. 02/15 Page 13 of 31
The reference letters issued by Sh. V.Arjun Reddy and B.Mazine Reddy, Ranakdevi Londoner and Kiran N.Brucker placed on record indicate to the effect that the respondents share a strong matrimonial bond and alongwith their son Kiran an adopted child are a happy family together and that they had been spending life hours preparing their home for the second child and that they are excellent parents and that the respondent no.2 is a loving and tender mother and with her teaching background also disciplines her child when necessary. The police clearance certificate of the respondent nos. 1 & 2 Ex.PW2/11(Colly) indicates that there is no criminal history found under the Maryland statute or regulation against the two respondents. The marriage certificate of the respondent nos. 1 & 2 is the authenticated copy of the marriage certificate of the two respondent is placed on record as Ex.PW2/12. The certificate issued by the United States Citizenship and Immigration Services is Ex.PW2/13.
The undertaking issued by the World Association for Children & Parents (WACAP), USA is placed on record as Ex.PW2/14, the duly recognized adoption agency to the effect that :
1. We assure that the adoptive parents Andreand Minakshi Campos, residing at 3 Blenmont Court Phoenix MD 211311, USA, will adopt the minor, Rahul, born 20 March 2008 proposed for them for adoption within 2 years from date of arrival of the minor to their home here.
2. We further undertake and assure that we shall send progress reports of the minor after the minor arrives here in the home of the adoptive Guardianship Petition No. 02/15 Page 14 of 31 parents, quarterly during the first 2 years and half yearly for the subsequent 3 years.
3. We further undertake in case of death, separation for disruption of the adoptive family before adoption can be effected, we shall take care of the minor and find a suitable alternative placement for it with the approval of the institution whose inmate the minor is, and report such alternative placement to the Honorable Court, who has passed the order of the guardianship."
Ex. PW2/15 placed on record is issued by the World Association for Children & Parents (WACAP), USA i.e. a certificate that the respondents proposed guardians and/or adoptive parents of an Indian child were permitted to adopt a child according to law of their country. The agency consent of World Association for Children & Parents (WACAP), USA given to the two respondents residing at 3, Blenmont court, Phoenix, Maryland 21131, Baltimore Country, USA to receive in their home children for adoption based on the facts related to the attached Adoption Preplacement Report, is on the record as Ex. PW2/16. Ex.PW2/17 is the certification of the applicants suitability for adoption of the child of Indian origin. Copies of birth certificates of the two respondents are on the record as Ex.PW2/15 (colly). The birth certificate along with the adoption certificate and the adoption order dated 18.08.2008 of the adopted child Kiran is on the record which is Ex.PW2/19 (colly), the copies of the passport of the respondent nos. 1 & 2 are placed on record is Guardianship Petition No. 02/15 Page 15 of 31 Ex.PW2/20 (colly) and the copies of the OCI of the two respondents are on the record as Ex.PW2/21 vide which the two respondents have agreed to the following :
I agree to a minimum of two agency post placement home visits after the minor child's arrival and submit an informative letter by the following anniversaries of child's arrival on after three months, six months, nine months, 12 months, 18 months and 24 months and to provide World Association for Children & Parents (WACAP), USA with proof of the child's United States citizenship.
The renewal of certificate for enlargement of World Association for Children & Parents (WACAP), USA indicating the validity of the renewal for process of inter country adoption relating to USA and matter is indicated to be valid for the period from 18.02.11 to 27.02.16. The final declaration is placed on record as Ex.PW2/24 and the declaration of the respondent nos. 1 & 2 as Ex.PW2/25 to the effect that the two respondents is residing currently at 3, Blenmont court, Phoenix, Maryland 21131, Baltimore Country, USA declared that they desired to adopt the minor child Rahul, born on 20.03.2008 at present being brought up at SOS Udayan in New Delhi India and that they had both mutually decided that Minakshi Campos, adoptive mother, would be the primary full time caregiver at home and will not take an office/external job after two years after Rahul's arrival and that Andre Campos i.e the adoptive father would assist in childcare when he was home from work and Andre Guardianship Petition No. 02/15 Page 16 of 31 & Minakshi's parents have agreed to assist as often and as long as necessary with Rahul's care and the safety and well being of their child will at all times be uppermost in their minds and they undertake never to leave Rahul alone or unsupervised.
The declaration of willingness to adopt of the respondents is on the record as Ex.PW2/29. The child approval is on the record as Ex.PW2/28. The consent of the older child Kiran is on the record as Ex.PW2/30 and the acceptance of the proposed adoptive parents is Ex.PW2/31 and the certified copy of the order dated 03.12.2015 of the Ld. District & Sessions Judge, Patiala House courts in Guardianship Petition No.4/15 is ex.PW 2/32, wherein the previous petition filed by the petitioner was withdrawn with liberty to file afresh in view of lack of territorial jurisdiction and the present petition has thus been filed as the present petition under consideration. All documents placed on record as Ex.PW2/1 to Ex.PW2/31 are duly notrised and apostille The witness PW2 testified to the effect that:
"The child is aware of the proceedings pending in this Court. The child just knows that he has to go to his parents and that he also has a brother. The child has met the prospective father. I have seen the interaction between the child and the prospective father. The prospective mother has not met the child yet. The child wants to go with his prospective parents. It is in the interest of the child that he goes to his prospective parents. It would be in the interest of the child if the child goes to his prospective parents. Though the Upvan Hone looks after the minor to the best of its ability, it cannot substitute for parents - in reply to specific court queries."
Ld. counsel for the petitioner has placed reliance on the Guardianship Petition No. 02/15 Page 17 of 31 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 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 Guardianship Petition No. 02/15 Page 18 of 31 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 whether or not he has his own biological son or daughter, can adopt a child;
Guardianship Petition No. 02/15 Page 19 of 31
(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 Guardianship Petition No. 02/15 Page 20 of 31 vide Rule 10 of the said guidelines.
The guidelines also provide for the follow up progress of the adopted child to the effect : "The specialised adoption agency shall report the progress of the child online in the format as provided in Schedule11 in the Child Adoption Resource Information and Guidance System along with photographs of the child on six monthly basis for two years from the date of preadoption foster placement with the prospective adoptive parents; and in case the child is having adjustment problem with the adopting parents, the specialised adoption agency shall arrange necessary counselling for such adoptive parents and the child and if such counselling efforts do not succeed, the specialised adoption agency shall make effort for placing the child temporarily in alternative care."
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 Guardianship Petition No. 02/15 Page 21 of 31 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 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. Guardianship Petition No. 02/15 Page 22 of 31 (6) The specialized adoption agency shall obtain the birth certificate of the child from the birth certificate issuing authority and provide it to the prospective adoptive parents within ten days from the date of availability of adoption order, with the name of adoptive parents, as parents, and date of birth as recorded in the adoption order.
Rule 20 of the said guidelines provides for the follow up progress of the adopted child and specifically vide Rule 20 (6) it has been provided that the prospective adoptive parents shall furnish an undertaking to the effect that they would allow personal visit of the representative of authorised foreign adoption agency, the Foreign Central Authority or the concerned Government Department, as the case may be to ascertain the progress of the child with the adoptive parents/family at least for a period of two years from the date of arrival of the child in the receiving country.
The verdicts of the Hon'ble Apex Court in the catena of judgments in the case of 'Laxmi Kant Pandey Vs. Union of India & Others' referred to hereinabove lay down the normative and procedural safeguards for protecting the interest and promoting the welfare of the minor child given in adoption to foreign parents and specify that the application filed by a foreigner for taking a child in adoption should be 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 Guardianship Petition No. 02/15 Page 23 of 31 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 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 Guardianship Petition No. 02/15 Page 24 of 31 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 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 Guardianship Petition No. 02/15 Page 25 of 31 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 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 parents, the respondents which includes her social and economic status and family background descriptive of their Guardianship Petition No. 02/15 Page 26 of 31 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 20.03.2008 and the date of birth of the respondent No.1 is 09.04.1968 and that of the respondent no.2 is 06.09.1971 which brings forth that the child is seven years of age and that the age of the respondents is now 47 & 44 years respectively 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 16.09.2015 in relation to the minor child being placed with the prospective adoptive parent i.e. the respondent, and as indicated vide the said no objection certificate Ex. PW1/2 on the record, the foreign adoption agency World Association for Children & Parents (WACAP), USA is authorised by the CARA and the Special Power of Attorney executed by the respondents 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 respondents have ratified all acts, deeds and things done and have agreed to remain bound by all the said by the executors of the Special Power of Attorney coupled with undertaking submitted by World Association for Children & Parents (WACAP), USA, adoption agency in relation to the respondent seeking adoption of the minor whereupon World Association for Children & Parents (WACAP), USA which has already been adverted to hereinabove.
Taking also into account the absence of any criminal record against the respondents as indicated vide Ex. PW2/11 (Colly) and the Guardianship Petition No. 02/15 Page 27 of 31 letter of acceptance Ex. PW2/31 executed by the respondents confirming their willingness to be appointed as guardian of the minor preparatory to his final adoption according to the local laws of her country at USA 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 respondents Ex. PW2/2 which bring forth that taking into account the psychosocial report for adoption in relation to the respondent which indicates that the respondents are healthy and have the financial and professional means and the respondent no.1 is 5ft 9 inches toll and is a financial graduate and works as a Senior Vice President in Capital Markets Organization of GE Capital Markets, Inc. and has an annual salary of US $ 167,750 equivalent to Rs. 10,068,355/ and also got incentive compensation bonus US $ 136,300 equivalent to Rs.8,180,726/ based on then current exchange rates $1 to $ 60.02. Ex.PW2/7 has been issued by the Managing Director of GE Capital Markets, Inc. being appropriate to fulfil her child's needs and lives in a comfort surroundings and the factum that the respondents are financially sound and have a good relationship between themselves, and taking into account the reference letters issued by Sh. V.Arjun Reddy and B.Mazine Reddy, Ranakdevi Londoner and Kiran N.Brucker to the effect that the respondents are helpful, attentive and ready to help and are very excited to adopt a child, coupled with the examination of the child which indicates that he is looking forward to go to the respondents and the factum that the child has been declared legally free Guardianship Petition No. 02/15 Page 28 of 31 for adoption by the Child Welfare Committee and taking into account the NOC issued by CARA, coupled with the undertaking of the foreign agency, the World Association for Children & Parents (WACAP), USA already detailed hereinabove, coupled with the factum that there are no criminal records against the two respondents and the interaction of the minor child with the undersigned and the testimony of PW1 & 2 and the record bring forth that the respondents are happy to adopt the minor child, coupled with the minor's response and there being nothing adverse against the respondents, it is considered appropriate to allow the petition in as much as of requisite guidelines of the year 2015 and the verdicts of the Hon'ble Apex Court in the case of 'Laxmi Kant Pandey Vs. Union of India & Others' in the series of judgments ordered thereby have been fulfilled. The available record also indicates that it would be expedient and proper and in the interest of the welfare of the minor child that he is given into adoption to the respondents as they were desirous of adopting a child and undertakes to look after the child to the best of her ability.
Taking the totality of the circumstances, thus, into account and also taking into account all the legal parameters in terms of the verdict of the Hon'ble Apex Court and the Hague Convention on Protection of Children and Cooperation In Respect Of Intercountry Adoption and the Convention on the Rights of the Child dated 20.11.1989 and taking into account the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 i.e Rule 41(6) thereof, which prevents Guardianship Petition No. 02/15 Page 29 of 31 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 World Association for Children & Parents (WACAP), USA 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 ten years and it would be appropriate that an expeditious adoption is permitted so that he integrates into his new family, it is considered appropriate to allow the petition and the minor child is allowed to be given in adoption to the respondents to comply with the following directions:
1. The respondents who are also appointed as 'guardian' of the person of the minor child Rahul 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 Rahul 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 Rahul along with recent photographs quarterly during the first two years and half yearly for the next three years from the Guardianship Petition No. 02/15 Page 30 of 31 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 World Association for Children & Parents (WACAP), USA and its cooperative entity i.e. Catalian Institute of Foster Care and Adoption, Government of USA to ascertain the progress of the child Rahul 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. USA The respondents are 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 of the minor child born on 20.03.2008 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.02/15 be consigned to the Record Room.
Announced in open Court today (ANU MALHOTRA)
on this 24rd day of District & Sessions Judge (South)
February, 2016 Saket/New Delhi.
Guardianship Petition No. 02/15 Page 31 of 31