IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
G.P. NO. 19/2017
SOS CHILDREN’S VILLAGES OF INDIA,
SOPAN 374, MANDAKINI ENCLAVE,
ALAKNANDA, NEW DELHI 110019
THOUGH ITS SOCIAL WORKER MRS. NELOOFER
…APPLICANT
VERSUS
1. MR ALFREDO GARCIA BLANCO
S/O MR CLAUDIO GARCIA GIL
2. MRS MARIA YOLANDA SECO CORRAL
WIFE OF MR ALFREDO GARCIA BLANCO
BOTH R/O CALLE JUSTICIA NUM. 17,4,
DCHA SANTANDER, 39008, CANTABRIA,
SPAIN.
THROUGH ATTORNEY
MR. KRIPA SHAKAR DUBEY
SOS CHILDREN’S VILLAGES OF INDIA
A7, NIZAMUDDIN WEST,
NEW DELHI – 110003.
…PROPOSED ADOPTIVE PARENTS
APPLICATION UNDER SECTION 59 (7) OF
JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, 2016
AND REGULATIONS 12 (2) AND 17 (1) OF
THE ADOPTION REGULATIONS
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 1 of 19 pages
Date of filing : 10.08.2017
First date before this court : 11.08.2017
Arguments concluded on : 12.10.2017
Date of Decision : 14.10.2017
APPEARANCE : Shri Mohinder Singh, counsel for applicant
J U D G M E N T
1. Applicant, a recognized Specialized Adoption Agency
under the provisions of Section 65, Juvenile Justice (Care and
Protection of Children) Act 2015 has brought this application under
the provisions of Section 59 (7) of the Act and Regulations 12 (2)
and 17 (1) of the Adoption Regulations, seeking declaration of the
Prospective Adoptive Parents namely Mr Alfredo Garcia Blanco and
his wife Mrs Maria Yolanda Seco Corral, both residents of
Cantabria, Spain as parents of child Saniya (hereinafter referred to
as “the said child”), born on 30.11.2009 and permission to take the
said child to the country of their residence for bringing up the said
child as their natural child. Applicant has also sought directions to
the Registrar, SDMC for issuance of birth certificate of the said
child and directions to the Regional Passport Office to issue passport
to the said child. Since an adoption case is nonadversarial in
nature, in view of clause 12(5) of the Adoption Regulations, 2017,
nobody was arrayed as respondent or as opposite party in the present
proceedings and as mandated by Regulation 12 (6) of the said
Regulations, proceedings in this case were held in camera.
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 2 of 19 pages
2. Upon institution and registration of the petition, I
recorded the testimony of Ms. Nelofer, a social worker of the
applicant agency as well as testimony of Shri Kripa Shankar Dubey,
attorney of the proposed adoptive parents. Thereafter, I interacted
with the said child.
3. In my interaction with the said child Saniya who is
aged about 8 years, I found her a healthy and happy child, presently
studying in second standard in Don Bosco School. Saniya identified
the photograph Ex. RW1/5 (colly) to be that of proposed adoptive
parents and she described them as Mummy and Papa, residing in
Spain. Saniya also informed that she has spoken with her proposed
adoptive mother by way of video chat on mobile phone and is eager
to join their company.
4. After conclusion of proceedings, I heard learned
counsel for applicant, who took me through record.
5. The factual matrix as pleaded in the application is as
follows.
5.1 The applicant agency has been recognized by the
Government of NCT of Delhi for rehabilitation of orphaned,
abandoned and surrendered children through adoption in accordance
with the provisions of the Juvenile Justice Act and the Adoption
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 3 of 19 pages
Regulations. Applicant is also registered as a Child Care Institution
(CCI) and the said child being in their care and custody, applicant
intends to give the said child in adoption to the proposed adoptive
parents (PAPs) in accordance with Section 66 of the Juvenile Justice
Act.
5.2 The said child was declared legally free for adoption by
the Child Welfare Committee, SouthEast District, New Delhi under
the provisions of Section 41(4) of the Juvenile Justice Act and the
said child is registered in the Child Adoption and Resources
Information and Guidance System for the purposes of adoption as
envisaged under section 56 (1) of the Juvenile Justice Act.
5.3 The PAPs are foreign nationals, residing in Cantabria,
Spain and have been found eligible and suitable to adopt by the
Authorized Foreign Adoption Agency namely Namaste Spain, based
in Spain on the basis of Home Study Report. Proposal of the PAPs
to adopt a child from India has been recommended by the
Authorized Foreign Adoption Agency and has been approved by
the concerned Central Authority. The PAPs have been registered in
the Child Adoption Resource Information and Guidance System by
the Authorized Foreign Adoption Agency / Central Authority and
they have been found eligible by the Central Adoption Resource
Authority (CARA) as per the criteria laid down in Section 57 of the
Juvenile Justice Act and Regulation 5 of the Adoption Regulations.
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 4 of 19 pages
5.4 The said child was referred to the PAPs online in Child
Adoption Resource Information and Guidance System through
Authorized Foreign Adoption Agency ‘Namaste Spain’ / Central
Authority concerned and was accepted by the PAPs by signing the
Child Study Report and Medical Examination Report on
16.05.2017.
5.5 The Central Adoption Agency issued No Objection
Certificate dated 10.07.2017 in favour of the PAPs.
5.6 The PAPs have undertaken that they will allow the
applicant or functionary of Authorized Foreign Adoption Agency /
Central Authority / Concerned Government Department to visit their
home in order to carry out post adoption followup to ascertain the
progress and the well being of the said child in the adoptive family,
as envisaged under Section 59 (11) of the Juvenile Justice Act. The
PAPs have also undertaken to bring up the said child as their own
and to accord her status, rights and privileges at par with the natural
child. The PAPs have given consent to take the said child in
adoption, as desired by the applicant.
5.7 Conditions laid down under section 61 (1) of the
Juvenile Justice Act have been complied with. The Central
Adoption Resource Authority has issued No Objection Certificate
for the proposed adoption.
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 5 of 19 pages
5.8 Neither the applicant nor the PAPs have any interest
directly or indirectly adverse to the said child.
5.9 Hence the present application, seeking that the PAPs be
declared as the parents of the said child born on 30.11.2009 for all
purposes allowed by law and the PAPs be permitted to take the said
child to the country of their origin for her upbringing as their own
child and for directions to the concerned authorities to issue birth
certificate and passport in the name of the said child.
6. The application was signed, verified and instituted by
Ms. Nelofer, working as a Social Worker with the applicant agency.
Ms. Nelofer appeared as PW1 and deposed on oath the above
mentioned contents of the application and proved on record the
necessary documents as Ex. PW1/1 to Ex. PW1/5.
7. The PAPs were represented in the present proceedings
through their attorney, namely Shri Kripa Shankar Dubey, Director
of the applicant agency. Shri Dubey appeared in the witness box as
RW1 and deposed that PAP no. 1 is 52 years old while PAP no. 2 is
42 years old and both of them are residents of Spain; that the PAPs
got married on 27.05.2006; that the PAPs are physically fit and
healthy and they desire to adopt child to extend their family; that
PAP no. 1 is working as Librarian in the Library in the University of
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 6 of 19 pages
Cantabria with an annual income of 20,539.94 Euros while PAP no.
2 is working as a Journalist with an annual income of 19915.89
Euros and they enjoy high status and sufficient means of livelihood;
that Namaste Spain, a recognized International Adoption Agency
has found the PAPs fit and suitable on the basis of Home Study
Report to adopt the said child; that it would be in the interest and
welfare of the said child, if the applicant is permitted to give her in
adoption to the PAPs as their daughter. RW1 proved on record the
necessary documents as Ex. RW1/1 to RW1/25.
8. During arguments, learned counsel for applicant took
me through the above described factual matrix and documentary
record in the light of relevant legal provisions.
9. Statutory law related to adoptions is dealt with,
amongst other enactments, by chapter VIII of the Juvenile Justice
(Care and Protection) Act, 2015, the basic purpose behind the
process of adoption being to ensure the right to family for the
orphaned, abandoned and surrendered children. Earlier, adoptions
were fundamentally governed by the Hindu Adoption and
Maintenance Act, the Guardian and Wards Act and guidelines laid
down by the Hon’ble Supreme Court of India in the case titled
Lakshmi Kant Pandey vs. Union of India, AIR 1984 SC 469, on
the basis whereof, Central Adoption Resource Authority (CARA)
came into existence. Upon enactment of the Juvenile Justice (Care
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 7 of 19 pages
and Protection) Act, 2015, the Central Adoption Resource Authority
was granted legislative recognition and was reconstituted as Central
Adoption Resource Authority (CARA) vide Section 68 of the said
Act. In the exercise of powers conferred by clause (c) of Section 68
read with clause (3) of Section 2 of the Juvenile Justice (Care and
Protection) Act, 2015, Central Adoption Resource Authority framed
Adoption Regulations, 2017, which have been notified by the
Central Government on 04.01.2017.
10. Sections 56 to 73 of the Juvenile Justice Act, 2015,
forming chapter VIII of the Act deal with various aspects related to
adoption and lay down the mandate of law to operate as the testing
parameters to adjudge legality of an adoption. All intercountry
adoptions have to be in strict adherence with the provisions of
chapter VIII of the Act and a person who takes or sends a child to a
foreign country or takes part in any arrangement for transferring the
care and custody of a child to another person in a foreign country,
without a valid order from the court is liable to punishment under
the provisions of Section 80 of the Act.
11. Section 57 of the Act lays down the eligibility of the
prospective adoptive parents, to the effect that PAPs must be
physically fit, financially sound, mentally alert and highly motivated
to adopt a child for providing good upbringing to the child; that in
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 8 of 19 pages
case of couple, consent of both spouses for adoption is required
while a single or divorced person can adopt subject to fulfillment of
the criteria and in accordance with the adoption regulations framed
by the authority, though a single male is not eligible to adopt a girl
child.
12. Section 59 of the Act, relevant for present purposes,
lays down in details the procedure to be adopted for intercountry
adoption of an orphan or abandoned or surrendered child. If an
orphan or an abandoned or surrendered child could not be placed
with an Indian or a nonresident Indian PAP, despite the joint efforts
of the Specialized Adoption Agency (SAA) and State Agency (SA)
within 60 days from the declaration of the child to be legally free for
adoption, the said child shall be free for intercountry adoption,
provided that children with physical and mental disabilities, siblings
and children above 5 years of age may be given preference over
other children for such intercountry adoption in accordance with
the regulations. An eligible nonresident Indian or overseas citizen
of India or persons of Indian origin have to be given priority in
intercountry adoption of Indian children.
13. Person(s), who is or are PAP(s) living abroad,
irrespective of their religion, if interested to adopt an orphan,
abandoned or surrendered child from India, may apply for the same
to an Authorized Foreign Adoption Agency or Central Authority or
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 9 of 19 pages
a concerned Government department in the country of their habitual
residence in the manner as provided in the Adoption Regulations.
The Authorized Foreign Adoption Agency / Central Authority
concerned shall prepare a Home Study Report of such PAPs and
upon finding them eligible, will sponsor their application to the
authority for adoption of a child from India. Upon receipt of such
application of PAPs, if the authority finds the PAPs suitable, it will
refer the application to one of the SAA where children legally free
for adoption are available. The SAA shall match the legally free for
adoption child with the PAPs and send the Child Study Report and
the Medical Report of the child to the PAPs, who may accept the
child and return the Child Study Report and Medical Report, duly
signed by them to the said agency. Upon receipt of acceptance of the
child from the PAPs, the SAA shall file an application in the court
for obtaining the adoption order in the manner as provided under the
Adoption Regulations. On receipt of certified copy of the court
order, the SAA shall send the same immediately to the authority,
State Agency and PAPs and obtain passport for the child. The
authority shall intimate about the adoption to the immigration
authorities of India and the receiving country of the child. The
PAPs shall receive the child in person from the SAA as soon as the
passport and visa are issued to the child. The Authorized Foreign
Adoption Agency or Central Authority concerned shall ensure the
submission of progress report of the child in the adoptive family and
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 10 of 19 pages
shall be responsible for making alternate arrangement in case of any
disruption, in consultation with the authority and concerned Indian
Diplomatic Mission.
14. Section 61 of the Juvenile Justice Act, 2015 lays down
that before issuing an adoption order, the court shall satisfy itself
that the adoption is for welfare of the child; that due consideration
has been given to the wishes of the child, having regard to the age
and understanding of the child; that there has been no monetary
transaction or reward in consideration of the adoption, except by
way of adoption fees or service charges or child care corpus, as
contemplated by the Adoption Regulations.
15. The Specialized Adoption Agencies (SAA) derive their
existence from the recognition granted by the State Government in
accordance with the Adoption Regulations vide Section 65 (1) of the
Juvenile Justice Act for the purposes of rehabilitation of orphan,
abandoned and surrendered children through adoption and non
institutional care. It is the duty of SAAs to get an orphan or
abandoned or surrendered child declared legally free for adoption
from the concerned Child Welfare Committee and also to complete
the Home Study Report of the PAPs and to move application for
obtaining adoption order from the court within stipulated time.
Failure on the part of SAAs in fulfilling the said duties entails
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 11 of 19 pages
punishment and derecognition, as contemplated by Section 65 (4)
of the Act.
16. Section 66 of the Juvenile Justice Act, 2015
contemplates that all the institutions registered under the Act shall
ensure that all orphan or abandoned or surrendered children under
their care are reported, produced and declared legally free for
adoption by the Child Welfare Committee.
17. In that regard, Section 38 of the Act lays down the
procedure for declaring a child legally free for adoption. In case of
an orphan and abandoned child, the Child Welfare Committee is
under a duty to make efforts for tracing out the parents or guardian
of the child and if after such enquiry, it is established that the child
is either an orphan or abandoned, the Committee shall declare the
child legally free for adoption and such a declaration has to be made
within a period of two months from the date of production of the
child aged upto two years and within four months for the child aged
above two years. In case of a surrendered child, the SAA or the
child supervising authority where the child has been placed by the
Committee on an application for surrender, shall bring the case
before the Committee immediately upon completion of two months
of surrender, as contemplated by Section 35 (3) of the Act and the
committee shall declare the child legally free for adoption.
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 12 of 19 pages
18. Falling back to the present case, as mentioned above,
the said child namely Saniya is in care and custody of the applicant
SOS Children’s Villages of India, which is recognized as SAA and
the said child has been declared legally free for adoption by the
Child Welfare Committee; on the other hand, the PAPs are
foreigners residing in Cantabria, Spain and on the basis of Home
Study Report, they have been found eligible and suitable to adopt a
child and their proposal to adopt a child from India has been
recommended by the Authorized Foreign Adoption Agency, namely
Namaste Spain, Spain. As also mentioned above, the reference of
the said child has been accepted for adoption by the PAPs by way of
signing the Child Study Report and Medical Examination Report
and Central Adoption Resource Authority has issued No Objection
Certificate.
19. PW1 and RW1 have brought on record the necessary
documentary evidence, as follows.
19.1 Ex. PW1/1 is the Certificate issued by the Child
Welfare Committee, SouthEast, New Delhi, declaring the said child
Saniya in care of the SAA namely SOS Children’s Villages of India,
legally free for adoption. Ex. PW1/2 is the No Objection
Certificate dated 10.07.2017 issued by Central Adoption Resource
Authority to the effect that there is no objection to the authority if
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 13 of 19 pages
the said child namely Saniya is given in adoption to the PAPs
namely Mr Alfredo Garcia Blanco and his wife Mrs Maria Yolanda
Seco Corral by the applicant. Ex. PW1/3 is the
Registration/Recognition Certificate of the applicant society issued
by the Government of Delhi. Ex. PW1/4 is the Child Study Report
and Medical Examination Report dated 16.05.2017 of the said child.
Both the said reports Ex. PW1/4 have been duly signed by the PAPs,
certifying that they have understood the contents of the said reports
and are willing to accept the said child as their adopted child. Both
the said reports Ex. PW1/4 are duly supported with apostle and are
notarized. Ex. PW1/5 is the latest photograph of the said child.
19.2 The social worker of the applicant, who is the duly
constituted attorney of the PAPs appeared as RW1 and proved on
record the Special Power of Attorney executed by PAPs in his
favour as Ex. RW1/1; adoption Home Study Report with its English
translation as Ex. RW1/2; suitability certificate of the PAPs made by
Central Adoption Agency with its English translation is Ex. RW1/3
(colly); undertakings to follow up and to take care of minor by
Central Adoption Agency with its English translation is Ex. RW1/4
(colly); family photographs of PAPs as Ex. RW1/5 (colly); medical
certificate of PAP no. 1 and PAP no. 2 with its English translation
is Ex. RW1/6 and Ex. RW1/7 respectively; photocopy of passports
of the PAPs as Ex. RW1/8 (colly); proof of residence of PAPs are
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 14 of 19 pages
Ex. RW1/9, birth certificates of PAPs with English translation as
Ex. RW1/10 and Ex. RW1/11 (colly) respectively; marriage
certificate of PAPs with English translation as Ex. RW1/12; police
clearance certificate of PAPs with English translation as Ex.
RW1/13(colly); Income Tax Certificates of PAPs with English
translation as Ex. RW1/14 (colly); Employment Certificates of
PAPs with English translation as Ex. RW1/15 and Ex. RW1/16;
Bank Certificate of PAP No. 2 as Ex. RW1/17; Property Certificate
of PAPs with English translation as Ex. RW1/18 (colly); Reference
Letters of PAPs with English translation as Ex. RW1/19 (colly);
State Police Certificates with English translation as Ex. RW1/20
(colly); permission of the receiving country with English translation
as Ex. RW1/21 (colly); undertaking of the adoption agency as Ex.
RW1/22 (colly); child acceptance and family approval letter as Ex.
RW1/23; letter of consent as Ex. RW1/24; and the child care plan as
Ex. RW1/25.
20. Besides, on 07.10.2017, I personally interacted with the
said child Saniya and recorded the proceedings as follows:
“From 11:25 am to about 11:45 am, I interacted
with the child namely Saniya who is aged about 8
years. Saniya is a healthy and happy child,
presently studying in second standard in Don
Bosco School. Saniya identified the photograph
of proposed adoptive parents Ex. RW1/5 (colly),G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 15 of 19 pages
describing them as Mummy and Papa, residing in
Spain. Saniya also informed that she has spoken
with her proposed adoptive mother by way of
video chat on mobile phone and is eager to join
their company.”
21. As mentioned above, before issuing adoption order, this
court has to satisfy itself that adoption is for welfare of the said child
Saniya; that due consideration has to be given to the wishes of the
said child Saniya; and no monetary transaction or reward in
consideration of the adoption is being undertaken.
22. As regards welfare of the said child, Home Study
Report Ex. RW1/2 reflects that PAP no. 1, presently aged about 52
years, is having a university degree in History and is employed as
Librarian in the Library at the University of Cantabria while PAP
no. 2, presently aged about 42 years, is having a degree in Social
and Information Sciences and is working as Journalist. The social
worker who carried out the Home Study Report of PAPs has
recorded extensive details of the parental families of both PAPs,
finding the said families close knit and successful. After recording
extensive details related to personal, professional and family history
of PAPs, traversing through their social and family environment,
motivation to adopt, health and housing etc, the social worker who
carried out the Home Study Report of PAPs concluded that the
PAPs are suitable to face upbringing and education of child and they
would give all their affection, resources and capacity to help the
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 16 of 19 pages
child grow in comprehensive manner since at a personal level PAPs
have high level of maturity and stability; PAPs have a very
harmonious relationship as a family; PAPs do not suffer from any
infectious, contagious or mental illness that could prevent them from
adopting a minor; PAPs have a good and stable occupation, which
would allow them to bring up child without any difficulty; PAPs
live in excellent conditions and environment, favourable for perfect
development of a child; and PAPs have no criminal record. Home
Study Report Ex. RW1/2 coupled with photograph Ex. RW1/5 and
suitability certificate Ex. RW1/3 amply establish that PAPs are
physically fit, financially sound, mentally alert and highly motivated
to adopt a child for providing her a good upbringing.
23. As regards wishes of the said child Saniya, as
mentioned above, in my personal interaction, I found the said child
is a healthy and happy child. The said child is presently studying in
second standard in Don Bosco School appears brilliant and happy
child and quite well acquainted with the proposed adoptive parents
and identified the photograph of proposed adoptive parents
describing them as Mummy and Papa. In the course of the said
interaction the said child informed that she has spoken with her
proposed adoptive mother by way of video chat on mobile phone
and is eager to join their company.
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 17 of 19 pages
24. As also reflected from the above described record, both
PAPs have expressed their consent and willingness to adopt the said
child Saniya after going through the Child Study Report and
Medical Examination Report Ex. PW1/4 which describe Saniya as
friendly towards other children and alert physically and mentally.
25. Going by the above circumstances, I am satisfied that it
would be in welfare of the said child Saniya to give her in adoption
to the PAPs for being brought up as their child.
26. Therefore, the adoption application is allowed and it is
ordered that the said child Saniya, born on 30.11.2009 be given in
adoption to the PAPs Mr Alfredo Garcia Blanco and his wife Mrs
Maria Yolanda Seco Corral as their daughter with effect from
14.10.2017 and thereby, henceforth the said child Saniya has
become the adopted child of the PAPs namely Mr Alfredo Garcia
Blanco and his wife Mrs Maria Yolanda Seco Corral, who have in
turn henceforth become adoptive parents of the said child Saniya.
As regards prayer clauses (b) (c) of the application, for issuance
of birth certificate and passport, necessary steps in accordance with
clauses 18 and 36 of the Adoption Regulations, 2017 be taken by the
concerned authorities.
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 18 of 19 pages
27. The requisite certificate in respect of adoption of the
said child bearing photographs of the said child and the adoptive
parents be issued. In order to maintain confidentiality, as laid down
in the case of Lakshmi Kant (supra), the entire record pertaining to
the present case be placed in sealed cover, not to be opened without
permission of the court and the entire sealed record be consigned to
record room.
Announced in the open court on
this 14th day of October, 2017 (GIRISH KATHPALIA)
District Sessions Judge
South East, Saket Courts
New Delhi 14.10.2017 (a)
G.P. No. 19/17 SOS Children Vs. Mr Alfredo Garcia Blanco Page 19 of 19 pages
