Delhi High Court - Orders
Michelle Camilleri & Anr vs Central Adoption Resource Authority ... on 12 April, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14069/2022 and CM APPL. 56395/2022, 56460/2022,
56471/2022, 56477/2022, 12300/2023
MICHELLE CAMILLERI & ANR. ..... Petitioners
Through: Ms. Tara Narula, Advocate.
versus
CENTRAL ADOPTION RESOURCE AUTHORITY (CARA) &
ANR. ..... Respondents
Through: Ms Monika Arora (CGSC) with Mr
Yash Tyagi, Adv. for CARA.
Mr. Anil Mittal and Mr. Shaurya
Mittal, Advocate for R-3 (M-
9810064432).
Mr. Veer Vikrant Singh, Adv. for
NCPCR.
Mr. Arun Sri Kumar, Ms. Mehaak
Jaggi & Mr. Abhyudaya, Advocates
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 12.04.2023
1. This hearing has been done through hybrid mode. CM APPL. 56395/2022 (seeking impleadment), CM APPL. 56460/2022 (directions), CM APPL. 56471/2022 (seeking directions for compliance of order dated 25/11/2022), CM APPL. 56477/2022 (intervention); CM APPL. 12300/2023 (early hearing)
2. The present application is an early hearing application and also for the disposal of all other applications. Vide judgment pronounced on 25th November, 2022, this Court had allowed the present writ petition filed by the Petitioners and had quashed the communication dated 10th August, 2022 issued by Respondent No. 1-CARA. In effect, the adoption of the child by the Petitioners was approved by the Court. The operative portion of the said Signature Not Verified Digitally Signed By:DEVANSHU JOSHI W.P.(C) 14069/2022 Page 1 of 6 Signing Date:15.04.2023 16:49:55 order reads as under:
"58. Accordingly, and for the aforesaid reasons, the writ petition stands allowed. The impugned communication of 10 August 2022 issued by CARA shall stand quashed and set aside. CARA is consequently directed to take further steps to complete the process of adoption in accordance with the No Objection Certificate which has been issued by it. Bearing in mind the fact that Child "S" was abandoned in 2019, it is expected that all concerned authorities shall aid and assist in the expeditious conclusion of all legal formalities relating to her adoption by the petitioners."
3. Subsequently, applications were filed before the Court in the present petition alleging that an FIR was registered in Bareilly, Uttar Pradesh against the Specialised Adoption Agency (SAA), Warne Baby Fold which had enabled the adoption and against the Petitioners, being FIR No. 543/2022 dated 15th December, 2022. The said application was considered by this Court on 23rd December, 2022 and impleadment of the State of Uttar Pradesh was allowed as Respondent No.3. In the application for interim relief, it was directed on 23rd December 2022 that the further proceedings FIR No. 543/2022 shall remain stayed.
4. The Court was thereafter informed of an Special Leave Petition ('SLP') which was filed against the original order dated 25th November, 2022. The said SLP being, SLP(C) No. 717/2023 titled Amit Kumar Mishra v. National Commission for Protection of Child Rights ('NCPCR') was decided by the Supreme Court on 3rd March, 2023. The Supreme Court has, recognized the adoption which was permitted by this Court and the SLP filed against the order of this Court was dismissed. The operative portion of Signature Not Verified Digitally Signed By:DEVANSHU JOSHI W.P.(C) 14069/2022 Page 2 of 6 Signing Date:15.04.2023 16:49:55 the order of the Supreme Court is set out below:
"xxx xxx xxx The entire process of declaring Child 'S' as free for adoption was undertaken twice. But re-examination process was initiated at the instance of the petitioners which resulted in the communication dated 10.08.2022 being issued by CARA for withdrawal of the adoption petition no. 1248 of 2022 till the complaint was being investigated. The petitioners had approached the Delhi High Court invoking its writ jurisdiction seeking quashing of the said communication. In the judgment delivered on 25.11.2022 which is impugned in this petition, the Delhi High Court had allowed the petition of the FPAPs and quashed the aforesaid communication. The effect of this judgment, in substance, is that Child 'S' would be free for adoption through subsisting process on compliance of requisite formalities.
On behalf of the respondent No. 1 i.e., 'NCPCR' and 2 i.e., 'CARA', Mr. K.M. Nataraj, learned Additional Solicitor General has submitted that the enquiry may be continued but, as regards the procedure adopted by CARA, his submission is that the same was in accordance with law. He has also pointed out in course of hearing that there was no problem with the portal also. The contention of the petitioners, who are represented before us by Dr. Manish Singhvi, learned Senior Counsel, is that they could not have the access to the portal. But we are unable to accept this contention as the Learned Additional Solicitor General has made a clear submission before this Court that there was no problem with the portal. All apprehensions of the petitioners in this regard are not correct. The High Court in the judgment assailed has come to a finding that as per the applicable regulations, there was evidence that the child was suffering from various ailments which merited her being placed in Special needs category. The High Signature Not Verified Digitally Signed By:DEVANSHU JOSHI W.P.(C) 14069/2022 Page 3 of 6 Signing Date:15.04.2023 16:49:55 Court failed to find any justification for ordering a review medical examination. We have no reason to take a contrary view.
As regards submission of the petitioners that the FPAP had initially expressed unwillingness to take a child with epilepsy for adoption, Ms. Menaka Guruswamy, learned Senior Counsel appearing for the respondent nos. 3 and 4 has submitted that such unwillingness was at the preliminary level only. They were aware that Child 'S' had this medical condition and were still willing to adopt her. We do not find any reason to interfere with the impugned judgment for this reason. The other point highlighted was that there were too many cases of adoption from Malta. But the statute lays down a robust scrutiny process in each case of inter-country adoption. On mere suspicion based on such statistics, we cannot interfere with the judgment of the High Court.
As the statutory provisions stand complied with, we are not inclined to interfere with the judgment of the High Court, which we find to be a well-reasoned order which has dealt with all the relevant issues. The present petition stands dismissed.
Pending application(s), if any, shall stand disposed of."
5. The Respondent No. 3-State of U.P has filed a counter-affidavit dated 3rd April 2023. The said Affidavit notes that pursuant to the above order passed by the Supreme Court, the DM, Bareilly also approved the adoption on 22nd March 2023 and the child has since been handed over to the prospective parents- the Petitioners and who are residents of Malta. The child is stated to have already been taken to Malta.
6. The only issue that remains now is in respect of the FIR which is registered in Bareilly, U.P. In respect of the same, an affidavit was called for Signature Not Verified Digitally Signed By:DEVANSHU JOSHI W.P.(C) 14069/2022 Page 4 of 6 Signing Date:15.04.2023 16:49:55 from the Respondent No. 3-State of U.P. The Sub-Inspector, Police Station Kotwali, Bareilly, U.P. has filed an affidavit stating as under:
"3. I state that pursuant to the registering of the FIR the Investigating Officer recorder the statement of the complainant Sh. Anshu s/o Sh. Surender Kumar on 18-12-2023, who maintained and endorsed his complaint.
4. I state that thereafter order dated 23-12-2023 passed by this Hon'ble court was received at Police Station Kotwali, Bareilly, U.P on 6-1-2023 and in compliance of the said order further investigation of the FIR was stopped.
5. I state that thereafter pursuant to orders dated 3-3- 2023 passed in SLP (C) No.717 of 2023 by the Hon'ble Supreme Court of India and order dated 15-3-2023 passed by this Hon'ble court, the District Magistrate, Bareilly, U.P, passed adoption order dated 22-3-2023 concerning baby girl Sita in favour of the petitioners, herein. The said adoption order dated 22-3-2023 was produced before this hon'ble court on 27-3-2023.
6. I state that pursuant to the stay order dated 23-12- 2022, no further investigation is being carried out in the above said FIR. The answering respondent shall proceed with the investigation of the FIR as per direction of this hon'ble court"
7. Heard. In view of the fact that the adoption of the child has now been upheld by the Supreme Court and the child has also been handed over to the Petitioners, i.e the adoptive parents and in view of order dated 23rd December 2022, ld. Counsel for the State of U.P. informs the Court that the investigation is currently stopped in the FIR. However, since the FIR is registered in Bareilly, U.P., this Court may not have the jurisdiction to deal with the said FIR. Vide order dated 23rd December, 2022, this Court had stayed the further proceedings in the FIR. The said order is as follows:
Signature Not Verified Digitally Signed By:DEVANSHU JOSHI W.P.(C) 14069/2022 Page 5 of 6 Signing Date:15.04.2023 16:49:55"CM APPL. 56471/2022 (for directions)
15. This is an application filed by Ms. Primrose Edmond, seeking directions for compliance with order of this Court dated 25th November, 2022.
16. List on 31st January, 2023.
17. In the meantime, it is made clear that no harassment shall be caused to the Applicant Ms. Primrose Edmond, till further orders of this Court.
18. Further proceedings in FIR No. 543/2022 shall also remain stayed till the next date of hearing".
8. On behalf Ms. Primrose Edmond, it is submitted that the order dated 23rd December 2022 may be continued till the closure of the investigation in the FIR.
9. Ms. Primrose Edmond, who is the Superintendent of the SAA- Warne Baby Fold is also impleaded in the matter. Both Ms. Primrose and the SAA, are permitted to avail of their remedies in accordance with law before the competent forum in respect of the FIR registered in Bareli against them. The stay order granted on 23rd December, 2023 shall continue for a period of six weeks to enable them to avail of their remedies.
10. With these observations, all the applications filed with this petition are disposed of. No further orders are called for.
PRATHIBA M. SINGH, J.
APRIL 12, 2023 Rahul/dn Signature Not Verified Digitally Signed By:DEVANSHU JOSHI W.P.(C) 14069/2022 Page 6 of 6 Signing Date:15.04.2023 16:49:55