Delhi District Court
Sos Children'S Villages Of India vs Mr. Jose Antonio Vinao Hernandez on 1 February, 2016
IN THE COURT OF SHRI AMAR NATH: DISTRICT & SESSIONS JUDGE
NEW DELHI
GP No. 11/2015
SOS Children's Villages of India
Udayan, 1 Doctor Lane,
Gole Market, New Delhi 110001
Through it's Social Worker:
Ms. Nelofer ........ Petitioner
Versus
1. Mr. Jose Antonio Vinao Hernandez
S/o Mr. Jose Antonio
2. Mrs. Maria Ascension Armanac Prad,
W/o Mr. Jose Antonio Vinao Hernandez
Both R/o Pasaje Jilgueros,
N 4, 4A Huesca 22004,
Spain
Through their attorney:
Ms. Vijay Raina, Director
SOS Children's Villages of India
A7, Nizamuddin (West)
New Delhi. ....... Respondents
Date of Institution of petition : 16.12.2015
Judgment reserved on : 01.02.2016
Judgment announced on : 01.02.2016
PETITION UNDER SECTION 41(6) READ WITH SEC.2 (aa)OF JUVENILE JUSTICE
(CARE AND PROTECTION OF CHILDREN) ACT, AMENDED 2006 READ WITH
RULES FRAMED THEREIN, FOR GIVING IN ADOPTION A MINOR FEMALE CHILD
"JYOTI", BORN ON 10.04.2007.
J U D G M E N T
The petitioner has filed the present petition under subsection (6) of section 41 read with section 2 (aa) of Juvenile Justice (Care and Protection of Children) GP No. 11/15 page 1 of 8 Act, Amended 2006 read with Rules framed therein (hereinafter referred to as "The Act") seeking permission to give minor female child Jyoti in adoption to the respondent no. 1 & 2 after obtaining 'No Objection Certificate' from Central Adoption Resource Authority (CARA), Ministry of Women and Child Development under the Guardians and Wards Act, 1890 interalia on the ground that the petitioner is a registered society as a Charitable Organization and running an orphanage home for the abandoned/ destitute and handicapped children. The present petition has been filed under the signature of Ms. Nelofer, Social Worker being conversant with the facts and circumstances of the case who has been duly authorized to sign and verify the petition. The minor female child namely Jyoti, born on 10.04.2007 (hereinafter referred to as "Child") was found abandon by the official of Police Station Jama Masjid who handed over the custody of the child to the petitioner society as per the directions of the Child Welfare Committee. The parents of the said child did not come to claim her for considerable period. It is averred that an application was moved before the Children Welfare Committee, New Delhi for declaring the child as an abandoned child and free for adoption, who declared the above named child as an abandoned child free for adoption after making the enquiry vide order dated 24.03.2014. The date of birth of the child was determined by the medical examination. The Child Study Report alongwith the photograph and medical record have also been annexed with the petition.
2. It is further averred 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 9 years old and as such Central Adoption Resource Authority (CARA) has cleared the child for foreign adoption. The respondent no. 1 and 2 are Christan in religion and faith and live in Spain who expressed their desires and intention to adopt the child above named according to the local laws of their country. They are enjoying good health as per the medical certificates concerning their health which clearly reveals that neither they suffered previously nor presently from any mental or GP No. 11/15 page 2 of 8 physical disease or incapacity detrimentally affecting their fitness to have custody of the intending adoptive child as their daughter. The respondent no. 1 and 2, after seeing the Child Study Report, photographs and medical report of the child, have approved the above said child for adoption and they have several documents showing their status, employment and family background etc. duly notarised/authenticated. The necessary documents for the adoption of the said minor child were received from sponsoring agency "Namaste" (Asociacion Aragonesa Para Lal Promotion De La Infancia), Spain which is recognized by Government of India. The respondents are aware that no person has been appointed as guardian of the abovesaid child previously and no application was moved in this court for appointment of guardians of the aforesaid child. They have no adverse interest against the interest of the minor child. The respondents have been found fit and suitable to adopt the minor female child Jyoti as per the home study report. It would be in the interest and for the welfare of the minor child if the permission is granted by this court to give the minor female child Jyoti in adoption to the respondent no. 1 and 2 who would enable the minor to receive parental love and affection. It is also averred that the respondent no. 1 and 2 be appointed as the guardian of the minor female child Jyoti born on 10.04.2007 with the liberty to take her out of India to Spain for adopting her according to the local Laws of their country.
3. No notice was issued as per the amended guidelines dated 01.08.2015 and as such the notice was dispensed with. The petition has not been resisted on behalf of the respondents who were being represented through their attorney Ms. Vijay Raina. In fact they were keen and desirous to take the minor in adoption under Juvenile Justice (Care and Protection of Children) Act, 2006 and to bring up ' the minor ' as their own natural born child and had no interest adverse to that of ' the minor '.
4. In order to prove its case, the petitioner examined one witness in all and closed the evidence thereafter.
GP No. 11/15 page 3 of 8 PW1 Ms. Nelofer had deposed in the shape of affidavit Ex. PW1/A as averred to in the petition being authorized representative. It is testified that she is working as a social worker with the petitioner society which is a registered society as a charitable organization and running its orphan home for the abandoned/destitute and handicapped children. It is further testified that on 01.04.2013, a minor female child namely Jyoti, born on 10.04.2007 was found abandon by the official of Police Station Jama Masjid, New Delhi who hand over the custody of the child to the petitioner society as per the directions of the Child Welfare Committee. The parents of the said child did not come to claim her for considerable period. 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, who declared the abovenamed child as an abandoned child, free for adoption after making the inquries vide order dated 24.03.2014 in case No. 11854. She proved the Abandonment Certificate Ex. PW1/1, NOC from the Central Adoption Resource Authority, Ministry of Women and Child Development, Government of India Ex. PW1/2, Child study report Ex. PW1/3 (colly.) and recent photograph of the minor child Ex. PW1/4. In her deposition, she stated that it would be in the interest and for the welfare of the minor, if the petitioner is granted the permission to give the minor child above named to the respondent no.1 and 2.
5. On the other hand, RW1 Ms. Vijay Raina being the Attorney of the respondents, had deposed in the shape of affidavit Ex. RW1/A. In her such deposition, she has proved the Power of Attorney Ex. RW1/1 vide which she was authorized by the respondents to appear and pursue the matter on their behalf. She further deposed that the respondent no.1 was born on 29.06.1966 and respondent no.2 was born on 23.05.1968 and they both are permanent residents of Spain being its citizens. They both got married on 07.10.1995 and both are medically and physically fit and healthy however till date they do not have a biological child of their own and now they wish to adopt the child in question to complete their family. She further deposed that GP No. 11/15 page 4 of 8 respondent no.1 is employed with DGT Spanish General Directorate of Traffic, Provincial Traffic Office of Huesca as Information Operator and his annual gross income is 20,807.64 Euros and the respondent no.2 is employed with San Jorge General Hospital as Hospital Attendant and her annual gross salary is 20,844.08 Euros. They both enjoy high status and sufficient means of livelihood. She proved the Home Study Report in Spanish language alongwith its English translation Ex. RW1/2 (colly.), Photographs of the Respondents and their house Ex. RW1/3 (colly.), Birth certificate of Respondent Nos. 1 and 2 in Spanish language alongwith its English translation Ex. RW1/4 and Ex. RW1/5 (colly.), marriage certificate is Spanish language alongwith its English translation Ex. RW1/6 (colly.), medical Certificate of Respondent Nos.1 and 2 in Spanish language alongwith its English translation Ex. RW 1/7 and Ex. RW1/8 (colly.) respectively, Employment certificate of Respondent Nos. 1 and 2 in Spanish language alongwith its English translation Ex. RW1/9 and Ex. RW 1/10 (colly.) respectively, Income Tax Return alongwith its English translation Ex. RW 1/11, Bank certificate in Spanish language alongwith its English translation Ex. RW 1/12 (colly.), Property certificate in Spanish language alongwith its English translation Ex. RW1/13. She also proved the copies of Passports of Respondent nos. 1 and 2 alongwith its English Translation Ex. RW1/14 and EX. RW1/15, Census Registration in Spanish language alongwith its English translation Ex. RW1/16, State Police Certificate and Criminal Report Certificates Ex. RW1/17 (colly.) and Ex. RW1/18 (colly.), three Reference Letters alongwith its English translation Ex. RW1/19 (colly.), Child Approval Ex. RW1/20, Declaration of Willingness Ex. RW1/21. She also proved the Suitability Certificate issued by the Central Authority of Aragon Ex. RW1/22, undertaking to promote adoption Ex. RW1/23, undertaking to followup Ex. RW1/24, Letter stating that Respondent Nos. 1 and 2 fulfill requisites to adopt Ex. RW1/25, Undertakingcumletter of disruption Ex. RW1/26, (Ex. RW1/22 to Ex. RW1/26 are all issued by the Institute of Social Services of Aragon, Spain), Undertaking by Adoption Agency 'Namaste' Ex. RW1/27 and Statement of conformity to the referral GP No. 11/15 page 5 of 8 by the Central Authority as per Section 17C of Hague Convention Ex. RW1/28. She deposed that the documents Ex. RW1/1 to RW1/28 are authentic and notarised. She further deposed that it would be in the interest and welfare of the minor Jyoti if the petitioner is permitted to give the minor in adoption to the respondents as their daughter. "Namaste" (Asociacion Aragonesa Para Lal Promotion De La Infancia), Spain has found them fit and suitable on the basis of Home Study Report of the respondent no. 1 and 2 to adopt the minor as per the directions of the Hon'ble Supreme Court of India. Thereafter, RE was closed.
6. I have heard the arguments advanced by the Ld. Counsel for the petitioner in the light of the material including the evidence documentary or otherwise and have carefully perused the same.
7. From the pleadings including the evidence adduced on record, it stands established that the respondent no.1 and 2 were married on 07.10.1995 as per the marriage certificate alongwith its English translation Ex. RW1/6 but no child was born from the wedlock. The health certificates of the respondent no. 1 and 2 alongwith its English translation Ex. RW1/7(colly.) and Ex. RW1/8 also confirm that the respondents do not suffer from any kind of ailment detrimental to their fitness to adopt a foreign child. Other relevant documents produced by the respondents substantiate their willingness, capacity physical and financial and also genuineness in the caring, maintenance and welfare of the minor child which are all in the interest of this minor child.
8. Statement of PW1 Ms. Nelofer, coupled with the Child Study Report Ex. PW1/3 (colly.) shows that the minor female child Jyoti was born on 10.04.2007. As per her statement, the respondents have been found to be the most suitable persons for legal adoption of the child. The Central Adoption Resource Agency (CARA) has GP No. 11/15 page 6 of 8 issued "No Objection Certificate" in favour of the respondents allowing them for Inter country adoption.
9. As regard the respondents, it is evident from photographs of their house Ex. RW1/3(colly.), the employment certificates of the respondent no. 1 and 2 alongwith its English translation copies Ex. RW1/9 (colly.) and Ex. RW1/10 (colly.) and the Income Tax Returns of respondent no. 1 and 2 alongwith its English Translation Ex. RW1/11 (colly.) that the respondents are having sound financial status. Thus, it can be well said that the respondents are the persons of means to maintain themselves and the female child to be adopted. There is nothing on record to indicate that the respondents have any interest adverse to the welfare of this minor female child. Evidence adduced establishes the fact that the minor was an abandoned child and that the respondent no.1 and 2 are capable to maintain the minor child.
10. As per the Guidelines for Adoption from India - 2006 issued by the Central Adoption Resource Authority based on the norms, principles and procedures relating to the adoption of children laid down by the Hon'ble Supreme Court in their Judgment dated 6th February, 1987, 27th September, 1985 and 3rd December, 1986 in Writ Petition L.K. Pandey Vs. Union of India (No. 1171) of 1982, the Government of India had issued guidelines vide Ministry of Welfare (now Ministry of Social Justice and Empowerment Resolution no. 1333/85CH(AC) dated 4th July, 1989, the composite age of prospective adoptive parents of foreign origin should be less than 90 years to adopt infants and young children. However, the same are allowed to be suitably relaxed in exceptional cases, such as older children and children with special needs. In the case in hand, the female child Jyoti intending to be adopted is about 9 years old, born on 10.04.2007. She is not an infant or young child. Therefore, I agree with the Attorney for the respondents that the aforesaid guidelines regarding composite age of the foreign prospective adoptive parents coming for intercountry adoption can be relaxed.
GP No. 11/15 page 7 of 8
11. In the result, I allow the petition permitting the petitioner to give minor female child Jyoti in adoption to the respondent no.1 and 2 with all rights, privileges and responsibilities attached to such relationship. Both the parties are directed to execute an Adoption Deed in respect of the minor and place an attested copy of the same on record of this court within two months from the date of this order. The respondent no.1 and 2 are also directed to produce the minor child before this court as and when required and to send her half yearly progress reports through the agency concerned to this court and the petitioner as well for a period of five years. Necessary certificate be issued in favour of the respondents.
File be consigned to the record room.
Announced in the open court on this 1st day of February, 2016 (AMAR NATH) District & Sessions Judge New Delhi GP No. 11/15 page 8 of 8 IN THE COURT OF SHRI AMAR NATH: DISTRICT & SESSIONS JUDGE NEW DELHI GP No. 11/2015 SOS Children's Villages of India Vs. Mr. Jose Antonio Vinao Hernandez & Anr.
01.02.2016
Present: Sh. Ankur Goel, ld. Counsel for the petitioner.
Ms. Vijay Raina, Attorney for the respondent no. 1 & 2.
Arguments heard. Put up at 4 pm for order.
(AMAR NATH)
District & Sessions Judge
New Delhi/01.02.2016
At 4 pm
Present: None.
Vide separate order of even date, the petition under subsection (6) of section 41 read with section 2(aa) of Juvenile Justice (Care and Protection of Children) Act, Amended 2006 read with Rules framed therein is allowed the petition permitting the petitioner to give minor female child Jyoti in adoption to the respondent no.1 and 2 with all rights, privileges and responsibilities attached to such relationship. Both the parties are directed to execute an Adoption Deed in respect of the minor and place an attested copy of the same on record of this court within two months from the date of this order. The respondent no.1 and 2 are also directed to produce the minor child before this court as and when required and to send her half yearly progress reports through the agency concerned to this court and the petitioner as well for a period of five years. Necessary certificate be issued in favour of the respondents.
File be consigned to the record room.
(AMAR NATH)
District & Sessions Judge
New Delhi/01.02.2016
GP No. 11/15 page 9 of 8