SEKAR REPORTER

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O.P.NO.118 OF 2022   KRISHNAN RAMASAMY, J., order.  Regarding inter-country adoption of minor child. When this Court is the final authority to nod for inter-country adoption, virtually, it has become the guardian of the child and thereby, a duty is

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 order.  Regarding inter-country adoption of minor child.

When this Court is the final authority to nod for inter-country 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. 

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 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. 

….

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 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. As already stated above, this Court is the guardian of the child since this Court is the final authority to complete the process of adoption and paramount consideration of this Court is welfare of the child, it would be appropriate either by this Court or learned Master of this Court to monitor the progress of the child and to know the status of the child by contacting the child through video call once in a year till he/she attains the majority, so that the child feels secure and can express in case of ill-treatment by adoptive parents or his inconvenience to adjust in the adoptive family.

O.P.NO.118 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 female child, namely, Natasha, who was born on 15.10.2009 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 CARA Regulations 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 CARA Regulations.

 

  1. The facts as culled out from the petition filed by the petitioners, are briefly stated hereunder:

(a) The first petitioner, namely, Varshini Illam Trust, is a recognized Specialized Adoption Agency under Section 65 of the Juvenile Justice (Care and Protection of Children), 2015 (2 of 2016) by the State Government of Tamil Nadu, for rehabilitating orphans, abandoned and surrendered children through adoption in accordance with the provisions of the Juvenile Justice Act  and Adoption Regulations. The in-country license granted to the petitioner institution by the Government of Tamil Nadu has been renewed on 23.12.2016. The said recognition is valid for five years from the date of issue. Recently, the 1st petitioner has been granted interim recommendation from Commissioner of Social Defence for renewal from 23.12.2021 to 22.12.2026. The 1st petitioner is having the care and custody of the minor female child Natarasha.

(b) The minor female child Natasha was born on 19.01.2020 and she was declared legally free for adoption by the Child Welfare Committee, Chennai, vide order dated 08.04.2021 and the said child is registered in the Child Adoption Resource Information and Guidance System for the purpose of adoption. The petitioners 2 and 3 were matched for the above minor child through CARA OnLine system.

(c) The second petitioner and the third petitioner are Overseas Citizen of India, holding OCI Card, residing at No.8, Corbin Drive, Exton, PA 19341, USA.  They got married on 02.05.2012.  The second and third petitioners are blessed with a biological male child, namely, Avi Sundararajan and they wanted to adopt a female child.  They believe that they have much to offer a child, including their home, love and ability to financially care for a child.

(d) The second petitioner is working as Lawyer and his annual gross income is $ 228,474 and the third petitioner is working as a Clinical Program Manager and CEO of Ameriba and her annual gross income is $ 130,000. The financial position of the couple is good.

(e) Petitioners 2 and 3 stated that they accepted to adopt Minor child Natasha and also submitted all the particulars, called for from them, along with the home study report conducted on 01.12.2021.  The minor child was shown to the couple and they also decided to adopt the child. The child is one who requires special care as she was born premature and underweight.

(f) 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.

(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 Natasha as their own child and to accord the same status/rights/privileges to the child above named at par with the natural born child.

(g) The conditions laid down in Section 61(1) of the Juvenile Justice Act have been complied with in this adoption case.

(h) The givers and takers have no interest directly or indirectly adverse to that of the minor child.

(i) 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.

(j) 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.

(k) The second and third petitioners have not filed any other application for adoption of the above named minor child Natasha in any other Court of Law.

 

  1. Hence the petitioners have filed the present O.P. for the reliefs stated supra.

 

  1. One Mr.Sankar Raj, who is woking as Social Worker in the 1st petitioner Trust is examined as P.W.1 and marked Exs.P-1 to P-24.   Ex.P-1 is the Photocopy of the Trust Deed dated 09.04.2014 (compared with the original);  Ex.P-2 is the photocopy of the Certificate of recognition by State Government dated 23.12.2016 (compared with the original); Ex.P3 is the photocopy of the transfer letter dated 04.08.2020 (compared with the original);  Ex.P-4 is the photocopy of the power of attorney dated 29.09.2021 executed by the 1st petitioner (compared with the original); Ex.P-5 is the photocopy of the general power of attorney dated 27.01.2022 executed by the adoptive parents (compared with the original); Ex.P6 is photocopy of the letter dated 02.03.2022 issued by the Social Defence (compared with the original); Ex.P7 is the original surrender by the biological mother dated 03.03.2020; Ex.P8 is the original custody of the child dated 03.03.2021; Ex.P9 is the original CWC Clearance dated 08.04.2021; Ex.P10 is the original Child Study Report dated 03.01.2022; Ex.P11 is the original medical examination report of the child dated 03.01.2022; Ex.P12 is the photocopy of the no objection certificate from CARA dated 17.02.2022 (compared with the original); Ex.P13 is the notarized copy of the Home Study Report dated 01.12.2021; Ex.P14 is the notarized copy of the certificate of marriage of the adoptive parents; Ex.P15 (series 2 Nos.) are the notarized copies of the medical fitness of the 2nd and 3rd petitioners dated 19.11.2021 and 22.11.2021; Ex.P16 (series 3 Nos.) are the notarized copies of the proof of employment and income of the 2nd and 3rd petitioners; Ex.P17 is the notarized copy of the adoptive parents police clearance dated 23.11.2021; Ex.P18 is the notarized copy of the declaration of willingness of the adoptive parents dated 19.11.2021; Ex.P19 (series 2 Nos.) are the notarized copies of the passports of the adoptive parents; Ex.P20 is the notarized copy of the undertaking by sponsoring agency dated 03.12.2021; Ex.P21 is the notarized copy of the OCI cards of adoptive parents; Ex.P22 is the notarized copy of the family photographs; Ex.P23 is the notarized copy of the name change affidavit and Ex.P24 is the photograph of the minor child along with compact disc.
  2. On consideration of the above evidence and also keeping in mind that the minor child was abandoned 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.
  3. 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.
  4. When this Court is the final authority to nod for inter-country 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.
  5. 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.
  6. 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 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.
  7. 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 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.

 

  1. 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 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.
  2. 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 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. As already stated above, this Court is the guardian of the child since this Court is the final authority to complete the process of adoption and paramount consideration of this Court is welfare of the child, it would be appropriate either by this Court or learned Master of this Court to monitor the progress of the child and to know the status of the child by contacting the child through video call once in a year till he/she attains the majority, so that the child feels secure and can express in case of ill-treatment by adoptive parents or his inconvenience to adjust in the adoptive family.
  3. In the light of the above discussion, the Original Petition is ordered on the following terms:

(i) Petitioners 2 and 3 are hereby appointed as natural guardians/parents of the minor child Natasha,  whose date of birth is 15.10.2009, and they are hereby declared as the adoptive 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 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 in the website of High Court, addressing to the Registrar General.

  1. 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 years 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 reports through Online in the Child Adoption Resource Information and Guidance System in the format and also in the website of High Court, addressing to the Registrar General.

vii)  The adoptive parents are also directed to arrange video call with their adopted child as and when required once in a year till the child attains the majority and facilitate this Court or  the learned Master of this Court to have conversation with the minor child to enquire about his well-being in the hands of his adoptive parents and to know about his status, regarding his health, education and convenience/adjustment in the adoptive family, etc.

(viii) 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.

29.07.2022

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Note: The Registry is directed to place the matter before this Court and facilitate video conference for reporting compliance of direction contained in para 12 (v) every year till the child attains majority.
KRISHNAN RAMASAMY, J.,

 

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O.P.NO.118 OF 2022

 

 

 

 

 

 

 

 

 

 

 

29.07.2022

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