Madras High Court
7(1) Of The Adoption Regulations vs Unknown on 18 December, 2019
O.P.No. 351 of 2022 O.P.No. 351 of 2022 KRISHNAN RAMASAMY, J., This Petition is filed under Section 56(4) of the Juvenile Justice (Care and Protection of Children) Act,2015 r/w Regulations 12(2) and 17(1) of the Adoption Regulations, for giving the minor male child, namely, Thanigaivel, who was born on 21.01.2019 in adoption to the Petitioners 2 and 3 herein and for a declaration that they are the parents of the minor child and also for a direction to the Birth Certificate Issuing Authority to issue a birth certificate for the child within 5 working days from the date of receipt of the application under the provisions of Sub- regulation (5) of Regulation 18 and Regulation 36 of Adoption Regulations, 2017 and also for a direction to the Regional Passport Office concerned to issue Passport to the said child within 10 days from the date of receipt of application, as per Sub Regulation (4) of Regulation 18 and Regulation 38 of Adoption Regulations, 2017.
2. The facts as culled out from the petition filed by the petitioners, are briefly stated hereunder:
(a) The first petitioner, namely, Holy Apostles Convent, is a https://www.mhc.tn.gov.in/judis 1/15 O.P.No. 351 of 2022 recognized Specialized Adoption Agency under Section 65 of the Juvenile Justice (Care and Protection of Children), 2015 (2 of 2016) by the Commissionerate of Social Defence, under Proc no.14929/D2/2019 dated 18.12.2019 for rehabilitating orphans, abandoned and surrendered children through adoption in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2010) and Adoption Regulations, 2017. The 1st petitioner has no objection in placing the child in adoption as these parents have been matched by the international adoption agency through AFAA (Authorised Foreign Adoption Agency), namely Familglia Insieme Onlus Largo Amba Aradam, having its registered office at Italy in Online process. The 1 st petitioner is a registered child care institution, which is having the care and custody of the minor male child Thanigaivel.
(b) The minor male child Thanigaivel born on 21.01.2019 was surrendered to CWC and the child was entrusted to the care and custody of Holy Apostles Convent, and she was declared legally free for adoption by the Child Welfare Committee, Vellore, order dated 24.01.2022 as per provisions of Section 38 of Juvenile Justice Act and the said child is registered in the Child Adoption Resource Information and Guidance https://www.mhc.tn.gov.in/judis 2/15 O.P.No. 351 of 2022 System with the Registration No. RIPA/TN/2-0314, for the purpose of adoption as envisaged in Section 56(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2010).
(c) Both second and third petitioners are citizens of Italy and they got married on 30.08.2014 and doesnt have any biological or an adopted child and they wanted to adopt a child from India. At present, they are residing at 5411, Gunbarrel Circle, Longmont Colorado 80503, USA. The 2nd petitioner is working as a software developer of My Company at Italy and earning in Euros of 24,436,81 p.a. and the third petitioner is working as a Customer Care Service Manager at My Company and earning in Euros of 19,228,80 p.a. They believe that they have much to offer a child, including their home, love and ability to financially care for a child.
(d) Petitioners 2 and 3 stated that they registered for adoption in Online through CARA with Registration No. EITA2021091384532 by the Authorised Foreign Adoption Agency (AFAA), Italy, namely Familglia Insieme Onlus Largo Amba Aradam, Italy. Home Study Report was conducted and report prepared by AFAA dated 03.08.2021 . Through Online system of the matching as per new CARA guidelines 2015, minor child was matched Online and the 2 nd and 3rd petitioners https://www.mhc.tn.gov.in/judis 3/15 O.P.No. 351 of 2022 accepted to adopt her on 25.02.2022 by signing the declaration of willingness to adopt the minor child.
(e) The petitioners have signed the Child Study Report and Medical Examination Report pertaining to the minor child and all the relevant documents pertaining to the petitioners 2 and 3, viz., income certificate, marriage certificate are filed along with the petition.
(f) The Government of India Central Adoption Resource Authority (CARA ) has issued No Objection Certificate under no. ITA/2021/927/3242-CARA on 21.03.2022 for giving in adoption the minor male child to the 2nd and 3rd petitioners herein.
(g) The prospective adoptive parents have undertaken to submit post-adoption follow up to ascertain the progress and well-being of the child in the adoptive family, as envisaged under Section 59(11) of the Juvenile Justice Act. The petitioners 2 and 3 have also undertaken to up- bring the above named minor child Thanigaivel as their own child and to accord the same status/rights/privileges to the child above named at par with the natural born child.
(h) The conditions laid down in Section 61(1) of the Juvenile Justice Act have been complied with in this adoption case. https://www.mhc.tn.gov.in/judis 4/15 O.P.No. 351 of 2022
(i) The givers and takers have no interest directly or indirectly adverse to that of the minor child.
(j) The above named minor child is residing within the legal jurisdiction of this Court and hence, this Court has jurisdiction to pass Adoption Order as per the provisions of Sections 2(23), 59(7) and 61 of the Juvenile Justice Act.
(k) The second and third petitioners understand that the adopted child shall become their lawful child with all rights, privileges and responsibilities that are attached to a biological child.
(l) The second and third petitioners have not filed any other application for adoption of the above named minor child Thanigaivel in any other Court of Law.
3. Hence the petitioners have filed the present O.P. for the reliefs stated supra.
4. One Sr.Malar, who is working as Social Worker in the 1 st petitioner Trust is examined as P.W.1 and marked Exs.P1 to P21. Ex.P1 is the Photocopy of the General Power of Attorney given dated 25.02.2022 (compared with the original); Ex.P2 is the Original Home Study Report dated 03.08.2021. Ex.P3 (serious 2 Nos) are the Original https://www.mhc.tn.gov.in/judis 5/15 O.P.No. 351 of 2022 Child Study and Medical Reports dated 25.02.2022; Ex.P4 is the photocopy of the Child Welfare Committee order dated 28.02.2020; Ex.P5 is the photograph of the minor child Thanigaivel; Ex.6 is the original consent and willingness dated 25.02.2022. Ex.7 (series 2 Nos) are the Original birth certificates of prospective adoptive parents. Ex.8 is the Original marriage certificate of prospective adoptive parents. Ex.9 (series 2 Nos) are the original health certificates of prospective adoptive parents. Ex.10 (series 4 Nos.) are the original salary certificates and financial status of prospective adoptive parents dated 08.07.2021 and 09.02.2022; Ex.P11 (series 2 Nos.) are the original reference letters of prospective adoptive parents dated 06.07.2021 and 07.07.2021; Ex.12 (series 2 Nos.) are the original police clearance of prospective adoptive parents dated 02.07.2021; Ex.P13 is the original proof of residence dated 20.07.2021. Ex.P14 (series 2 Nos.) are the certified copies of Italian passports of prospective adoptive parents which were certified by Italian Republic. Ex.P15 is the original undertaking by authorized foreign adoption agency dated 06.04.2022. Ex.P16 is the original affidavit by chief functionary of adoption agency dated 10.05.2022; Ex.17 is the original permission of the receiving country dated 31.03.2022; Ex.P18 is https://www.mhc.tn.gov.in/judis 6/15 O.P.No. 351 of 2022 the online authorized certificate of CARA; Ex.P19 is the online copy of the no objection certificate issued by CARA; Ex.P20 (series 2 Nos.) are the photocopies of CARA recognition and certificate of registration under J.J.Act; Ex.P21 is the original undertaking for post-adoption follow up of prospective adoptive parents dated 25.02.2022.
5. On consideration of the above evidence and also keeping in mind that the minor child was surrendered and was declared free for adoption by the Child Welfare Committee, I am of the view that it is in the paramount interest of the child that this Petition should be allowed.
6. The right of the couple to adopt a son is a constitutional right guaranteed under Article 21 as the right to life includes those things which make life meaningful. The orphaned, the abandoned, the destitute and/or similarly situated child has the right to life, which is constitutional right guaranteed under Article 21 of the Constitution of India. Once such a right has been traced, the child cannot be denied the right to be adopted. In fact, in order to restore the family life to a child deprived of his or her biological family, the concept of adoption has been considered the best means.
7. When this Court is the final authority to nod for inter-country https://www.mhc.tn.gov.in/judis 7/15 O.P.No. 351 of 2022 adoption, virtually, it has become the guardian of the child and thereby, a duty is cast upon this Court to probe into the matter as to whether the adoption procedure has taken place properly and also see that the child would be safe in the hands of the prospective adoptive parents till the child attains majority. The desire of the adoptive parents to get a child on adoption is rather different from having intention to get an adopted child. No one can expect the real intention behind the adoptive parent/s to get an adopted child. If their intention is clear and good, then the child is so lucky, if not, he starts to curse his fate and his biological parents, who abandoned him/her heartlessly.
8. Having regard to the children enactments and in the interest of welfare of the abandoned children, this Court has no hesitation to give nod for adoption as sought for in the present petition under the impression that the children who are permanently separated from their biological parents, will become lawful children of their adoptive parents with all rights, privileges and responsibilities that are attached to biological children, for which, the adoptive parents also agreed to do so.
9. In a civilized society, welfare of a child has got the utmost importance. If welfare of a child is ignored, the same would destroy the https://www.mhc.tn.gov.in/judis 8/15 O.P.No. 351 of 2022 entire fabric and future of the civilized society. This Court's endeavour and paramount concern is to ensure the adopted child's welfare after adoption all along till he/she attains majority and that his/her life is free from fear and that he/she grows up in peace. In some adoptions, where already the prospective adoptive parents were having their biological children and despite the same, still they are showing interest to have an adopted child. No doubt, the desire to have an adopted child is laudable, but the adoptive parents shall act as biological parents and provide the best to their adopted children and shape their adopted child as a good citizen of the country.
10. Regulation 19(1) of the Adoption Regulations, 2017 provides follow-up of progress of adopted child by Non-Resident Indian, Overseas Citizens of India and foreign prospective adoptive parents. Clauses (1) and (7) of Regulation (19) are relevant and the same are extracted as under:
(1) The Authorised Foreign Adoption Agency or the Central Authority or Indian diplomatic mission or Government department concerned, as the case may be, shall report the https://www.mhc.tn.gov.in/judis 9/15 O.P.No. 351 of 2022 progress of the adopted child for two years from the date of arrival of the adopted child in the receiving country, on a quarterly basis during the first year and on six monthly basis in the second year, by uploading online in the Child Adoption Resource Information and Guidance System in the format provided in Schedule XII along with photographs of the child.
(2) to (6) ... ... ...
(7) The prospective adoptive parents shall furnish an undertaking to the effect that they would allow personal visits of the representative of Authorised Foreign Adoption Agency, the foreign Central Authority or Government department concerned, as the case may be, to ascertain the progress of the child with the adoptive parents or family at least for a period of two years from the date of arrival of the child in the receiving country.
11. From a perusal of the above, it is clear that in a case of inter- country adoption, it is made mandatory only for a period of two years for the Authorised Foreign Adoption Agency or the Central Authority or Indian Diplomatic Mission or Government Department concerned, as the case may be, to report progress of the adopted child from the date of https://www.mhc.tn.gov.in/judis 10/15 O.P.No. 351 of 2022 arrival of the adopted child in the receiving country, on a quarterly basis during the first year and on six monthly basis in the second year; and the prospective adoptive parents are under obligation only for a period of two years, to allow personal visits of representative of Authorised Foreign Adoption Agency, the foreign Central Authority or Government department concerned, as the case may be, to ascertain the progress of the child with them from the date of arrival of the child in the receiving country.
12. Therefore, in the absence of any statutory provision to monitor the child beyond two years from the date of adoption, this Court is of the view that it would be appropriate to direct the child welfare authorities to report the progress of the adopted child from the date of arrival of the adopted child in the receiving country along with detailed educational report and medical report of the adopted child through out till the child attains majority.
13. In the light of the above discussion, the Original Petition is ordered on the following terms:
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(i) Petitioners 2 and 3 are hereby appointed as natural guardians/parents of the minor male child Thanigaivel, whose date of birth is 21.01.2019, and they are hereby declared as the parents for the person of the said minor child and the petitioners 2 and 3 are permitted to take the child to their residence for up-bringing the child as their own child with the legal status of a biological child with all the rights of succession and inheritance.
(ii) The Birth Certificate issuing Authority is directed to issue Birth Certificate for the said minor child, within five working days from the date of application thereof, as per the provisions of Regulation 36 of the Adoption Regulations, 2017.
(iii) The Regional Passport Authority concerned is directed to issue Passport of the said minor Child within 10 days from the date of application as per the provisions of Regulation 38 of the Adoption Regulations, 2017.
(iv) The Authorised Foreign Adoption Agency or the Central Authority or Indian Diplomatic Mission or Government Department concerned, as the case may be, are directed to report progress of the adopted child from the date of arrival of the adopted child in the receiving country on a quarterly basis during the first year and thereafter on six https://www.mhc.tn.gov.in/judis 12/15 O.P.No. 351 of 2022 monthly basis along with detailed educational and medical reports of the adopted child through out till the child attains majority, by uploading Online in the Child Adoption Resource Information and Guidance System in the format and also file the same before this Court.
v) The adoptive parents are hereby directed to furnish an undertaking to the effect that they would allow personal visits of the representative of Authorised Foreign Adoption Agency, the foreign Central Authority or Government department concerned as the case may be, on a quarterly basis in every year till the child attains majority and co-
operate them to ascertain the progress of the child as regards his/her health, education and convenience/adjustment in the adoptive family.
vi) The concerned representatives of Authorised Foreign Adoption Agency, the foreign Central Authority or Government department concerned, as the case may be, are directed to make surprise personal visits of the residences of the adoptive parents on quarterly basis in every year till the child attains majority and ascertain the progress of the child as regards his/her health, education and convenience/adjustment in the adoptive family and upload the inspection reports through Online in the https://www.mhc.tn.gov.in/judis 13/15 O.P.No. 351 of 2022 Child Adoption Resource Information and Guidance System in the format and also file the same before this Court.
(vii) The adoptive parents are directed to furnish an Undertaking after the child in adoption to the effect that the child will inherit all moveable and immoveable properties as their inheritor as are available to their biological children.
18.08.2022 suk https://www.mhc.tn.gov.in/judis 14/15 O.P.No. 351 of 2022 KRISHNAN RAMASAMY, J., suk O.P.NO.351 OF 2022 18.08.2022 https://www.mhc.tn.gov.in/judis 15/15