Delhi District Court
Mr.Juan Luis Egido De La Iglesia vs The Indian Council For Child Welfare on 23 November, 2010
IN THE COURT OF SHRI RAKESH KAPOOR :
DISTRICT JUDGE-1 : DELHI
GUARDIANSHIP CASE No. 161/2010
Unique ID No. 02401C0454612010
IN THE MATTER OF:
1. Mr.Juan Luis Egido De La Iglesia
2. Mrs. Maria Arantzazu CVasaus Munoz
Both residents of
Teruel Avenue,
24, 2o D, Zaragoza
Spain.
Through their attorney,
Mrs. Kamla Lekhwani, Adoption Officer,
Mamta -Children of the World
A-5/5, Vasant Vihar,
New Delhi.
.....Petitioners
Versus
1- The Indian Council for child welfare
4- Deendayal Upadhyaya Marg
New Delhi
2- Mamta -Children of the World
Plot No.5, PSP Pocket, Sector-8,
Dwarka, New Delhi.
....Respondents
Date of institution of petition : 27.09.2010
Date on which judgment was reserved : 23.11.10
Date of pronouncement of judgment :23.11.10
JUDGMENT:
The case of the petitioners as disclosed in the petition is that they are Spanish nationals. They were married on 17.11.2001. Due to medical reasons, they could not have their own biological child. They have not adopted any child so far.
(GP No. 161/10) Page 1 of 5They are very fond of children. They have decided to adopt a minor child from India. It is stated that minor male child Master Amit (born on 17.04.2004) was found abandoned by Delhi Police and was transferred to Child Care Centre of respondent No.2 institution on 14.09.2009. The date of birth of the minor has been assessed as 17.04.2004 after medical examination. Child Welfare Committee has declared the minor child as an abandoned child and free for adoption. Hence, the petitioners through their Attorney Mrs. Kamla Lekhwani have applied under Sections 7 & 26 of the Guardians & Wards Act, 1890 for their appointment as the joint guardians of minor male child namely Master Amit (born on 17.04.2004) and for permission to take the said child outside the jurisdiction of this court for adopting him according to local laws of their country.
2- Notice of the petition was issued to the respondents and citation was also affixed on the Notice Board of the Court House. Both the respondents have filed their respective replies stating therein that they have no objection if the petition is allowed.
3- In support of the petition, Mrs. Kamla Lekhwani Attorney of petitioners proved Power of Attorney executed by the petitioners in her favour as Ex.P-1. She tendered her evidence vide affidavit Ex.P1/A wherein she has reaffirmed all the averments made in the petition. She has placed & proved on record medical certificates of petitioners as Ex.P2 & P3; sterility certificate of petitioner No.2 as Ex.P4; income declaration of the petitioners as Ex.P5; employment certificate of petitioner No.2 as Ex.P6; Tax certificates of the petitioners as Ex.P7 & P8; Home Study Report Ex.P9; photographs of the petitioners as Ex.P10; declaration of willingness as Ex.P11; child approval as Ex.P12;
(GP No. 161/10) Page 2 of 5sponsoring agency letter issued by Namaste Association Aragonesa Para La Promocion De La Infancia, Spain as Ex.P13 and marriage certificate of the petitioners as Ex.P14.
4- Ms. Soumya Prateek, Social Worker of Respondent No.2 Institution tendered her evidence vide affidavit Ex.RW1/A. She has testified that minor male child Master Amit (born on 17.04.2004) was found abandoned by Delhi Police and was transferred to Child Care Centre of respondent No.2 institution on 14.09.2009. The date of birth of the minor has been assessed as 17.04.2004 after medical examination. Child Welfare Committee vide its order Ex.R-5 has declared the minor child as an abandoned child and free for adoption. She testified that no Indian family living in India or abroad, came forward to adopt the child because the child is above six years old. She also proved on record the child study report as Ex.R-1, digital photograph of the minor as Ex.R-2; certificate of clearance issued by CVARA as Ex.R-3; No objection certificate issued by CARA in favour of the petitioners as Ex.R-4; and Abandonment certificate issued by Child Welfare Committed as Ex.R-5. She also testified that respondent No.2 has no objection if the petitioners are appointed as guardians of minor male child.
5- I have heard the learned Counsel for the petitioners and have gone through the record.
6- Section 7 of the Guardians & Wards Act provides that for appointment of the guardian, paramount consideration is the welfare of the minor. An application under Section 7 must be decided in the discretion of the court after due consideration of the matters provided under Section 17 of the Act, namely the (GP No. 161/10) Page 3 of 5 personal law of the minor, the age, sex and religion of the minor, the character and capacity of the proposed guardian, the wishes if any, of a deceased parent, any existing or previous relations of the proposed guardian with the minor or his property and the wishes of the minor if he is old enough to form an intelligent preference. Section 26 relates to the removal of ward/minor outside the jurisdiction of the court. Permission to remove the minor outside the jurisdiction of the court may be granted for good and sufficient grounds especially for the welfare of the minor.
7- It is manifest from the pleadings and evidence adduced on record that the petitioners were married on 17.11.2001. They could not have their own biological children due to infertility in petitioner No.2. Medical Certificate Ex.P-4 depicts that the petitioner No.2 has fertility problems. Perusal of statement of RW1, coupled with Child Study Report Ex.R-1 shows that minor male child Master Amit (born on 17.04.2004) was found abandoned by Delhi Police and was transferred to Child Care Centre of respondent No.2 institution on 14.09.2009. The date of birth of the minor has been assessed as 17.04.2004 after medical examination. The said minor child has been declared as an abandoned child and is certified as legally free for adoption, by the Child Welfare Committee vide order Ex.R-5. It is apparent from the Document Ex.R-3 that CVARA has given its clearance for placement of the minor child in inter-country adoption because there is no family on waiting list for six years' old child. Document Ex.R-4 shows that CARA has given its no objection for the placement of the minor child with the adoptive parents/ petitioners. There is statement of RW-1 that no Indian family living in India or abroad, came forward to adopt the child because the child is above six years old. As regards the (GP No. 161/10) Page 4 of 5 petitioners, documents Ex.P6 to P8 depict that petitioner No.1 is working as a Draughtsman in the technical office of a company whereas petitioner No.2 is working as an Administrative & in the customer service field in a company and that their gross annual income is Euros 17,910.39 & Euros 21,166.78. Thus, it can be inferred that the petitioners are capable to maintain themselves and the male child to be adopted and it will be in the welfare of the minor male child if the prayer of the petitioners is allowed.
8- In the result, I allow the petition and appoint petitioners as guardians of minor male child Master Amit (born on 17.04.2004). Petitioners and/or their attorney are also permitted to remove the child outside the jurisdiction of this court to the place/country, to which the petitioners are the subject. The petitioners are directed to execute a surety bond in the sum of Rs.5,00,000/- (Rupees Five Lakhs) with an undertaking to produce the said child before this Court as and when required and to send his quarterly progress reports to this court, as also to respondent No.1untill his adoption is complete or he attains the age of majority, whichever is earlier. Necessary certificate be issued in favour of the petitioners.
Pronounced in open court (RAKESH KAPOOR)
23.11.2010 DISTRICT JUDGE:
DELHI
(GP No. 161/10) Page 5 of 5