SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Jose Solomon & Anr. vs Central Adoption Resource … on 26 July, 2021

Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: July 06, 2021
Pronounced on: July 26, 2021

+ W.P. (C) 3187/2021, CM APPL.9662/2021 (by the petitioners
u/S 151 CPC for ex parte ad interim orders)

JS ANR. …..Petitioners
Through: Mr. Samar Bansal, Mr. Kartik
Nagarkatti, Ms.Devahuti Pathak,
Mr. Sachin Mishra, Mr. Aman
Vishal, Ms.Harsheen Madan Palli,
Advocates
Versus

CENTRAL ADOPTION RESOURCE AUTHORITY ANR.
…..Respondents
Through: Ms. Biji Rajesh, Advocate for
respondent No.1/CARA.
Mr. Arnav Kumar, Senior Panel
Counsel for respondent No.2/UOI

CORAM:
HON’BLE MS. JUSTICE ASHA MENON

JUDGMENT

[VIA VIDEO CONFERENCING]

ASHA MENON, J.

1. The petition has been filed by Mr.JS and Mrs.MS, who describe
themselves as the adoptive parents of a minor named JJS, seeking
directions to the Central Adoption Resource Authority (“CARA”, for

W.P. (C) 3187/2021 Page 1 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
short) to issue a „No Objection Certificate‟ (“NOC”, for short) to them,
which would enable them to take their “adopted child”, the above-said
minor, to the United States of America (USA). Directions have also been
sought to Union of India (“UOI”, for short) for issuance of a passport to
the minor mentioning the petitioners as her parents.

2. This case reflects how easily it is possible to set at naught the law
intended to protect the welfare, well-being and the rights of the minors. A
complete go by has been given to the provisions of the Juvenile
Justice (Care and
Protection of Children) Act, (“JJ Act”, for short),
whether of 2015 or of 2000.

3. After having so carelessly flouted the law of this land, a plea of
humanitarian concerns is flashed before the court, expecting the court to
discharge the burden of undoing the wrongs and simultaneously
exonerating the wrongdoers!

4. Child trafficking is a pernicious practice that the State has sought
to address by various legislative means. Since trafficking occurs also for
the purpose of adoption, in addition to all other reasons, actions,
internationally and nationally, have been taken, to prevent it happening,
by prescribing the method and process for adopting a child. Despite that,
people, who are well educated, circumvent all such provisions for their
private gain.

5. The JJ Act, as also the Adoption Regulations, 2017, notified by the
UOI on 4th January, 2017 and which came into force w.e.f 16th January,
2017, and before that, the CARA Guidelines issued in the light of the
judgment of the Supreme Court in Lakshmi Kant Pandey v. Union of

W.P. (C) 3187/2021 Page 2 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
India (1984) 2 SCC 244, were all aimed at ensuring that the sourcing of
the child is known and no trafficking occurs during adoption, particularly
international adoptions. These essentially follow the Hague Convention
on Protection of Children and Co-operation in respect of Inter-country
Adoption, 1993 (hereinafter referred to as the “Hague Convention”), in
cases of foreign adoptions. The Hague Convention seeks to also ensure
that the adopted child is not left in the lurch in a foreign land, in the event
the adoption does not work out or subsequently, some problems arise.

6. The CARA has been set up as the Central Agency to regulate
adoption within the country and facilitate international adoption as per the
recommendation of the Hague Convention. CARA is the National
Agency as defined in the JJ Act. There are State Adoption Resource
Agencies (“SARA”, for short) also defined in JJ Act. Their counterparts
have been set up by the respective governments in several other countries
and it is through them that CARA ensures that children, who are adopted
from this country, are well taken care of. As required under the Hague
Convention, CARA has recognized certain agencies to facilitate “in-
country” and “inter-country adoption”.

7. The Guidelines/Rules provide that before adoption, the Child
Welfare Committee (“CWC”, for short) has to be satisfied that the child
is fit for adoption [Regulation 4(a) of the Adoption Regulations, 2017].
The fitness for adoption would be on account of the child being an orphan
or having been abandoned or surrendered. In the case of surrender, the
CWC is required to assure itself that the biological parents have willingly
surrendered the child and for good reason. When the CWC is determining

W.P. (C) 3187/2021 Page 3 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
the fitness of an abandoned child, they are obligated to ensure that a
proper inquiry and search for the biological parents is made. If none is
traceable, then such a child is also declared fit for adoption. Pending
adoption, the CWC may authorize any fit institution, fit person or Foster
parent to take custody/charge of the child. In some cases, pre-adoption
foster care is given to the prospective adoptive parents. Foster care is
governed by the Model Guidelines for Foster Care, 2016.

8. The CWC usually assigns the surrendered or abandoned child to a
Child Care Institution (“CCI”, for short) and obtains periodic reports
from such CCIs on the health and progress of the child. Once the child is
declared “fit for adoption” by the CWC, the CCI if it is the Specialised
Adoption Agency (“SAA”, for short) registers the child for adoption. If it
is not, then it will inform the SAA that the child was available for
adoption. The SAA would ensure the preparation of a Child Study
Report, which would also include an assessment as to whether the child is
one with special requirements.

9. Since 2015, CARA has introduced the new system of Child
Adoption Resource Information and Guidance System (known as
“CARINGS”), which entails the registration of a child fit for adoption in
a common list. Those people who are interested in adopting a child have
also to register themselves on the same site. As per their registration
number and their turn reaching, the Prospective Adoptive Parents
(“PAPs”, for short) are given an option of 3 children, who are awaiting
adoption, in accordance with their age preference or preference for
special children. The PAPs are sent the Child Study Reports in order to

W.P. (C) 3187/2021 Page 4 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
facilitate the exercise of their options. Simultaneously, the Home Study
Report and the Background Report of the PAPs are obtained through
recognized agencies and submitted to the SAA. The PAPs no longer have
direct access to the CCI to choose from amongst children housed there,
the child they wish to adopt.

10. All of this material, i.e., the Child Study Report, the Home Study
Report, the Background Report, the orders of the CWC declaring the
child fit for adoption, the orders whereby the CWC had handed over the
child to the CCI and other requisite certifications, if it is a case of
international adoption, are all submitted by the SAA to the District Judge.
The District Judge would interact with the PAPs as well as the child, and
consider all the documentation and on being satisfied that the adoption is
in the welfare of the child, put its seal of approval and declare the PAPs
to be the parents of the adopted child and the adopted child to be the child
of the PAPs for all legal purposes, also declaring, in the case of an
abandoned child, the date of birth, in order to enable the registration of a
birth certificate and issuance of other legal documents.

11. The District Judge would also direct the submission of regular
reports from the local authorised agencies, who had submitted the Home
Study Report, to report to it on the welfare of the adopted child initially
after every 3 months for one year and thereafter, once in 6 months for the
next year. When a foreign adoption takes place, the court also ensures
that issues of citizenship are worked out immediately, so that no lapse
occurs on the part of the adoptive parents leading to future complications
for the adopted child several years later. Though, it may be underlined,

W.P. (C) 3187/2021 Page 5 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
that it is the obligation of the CARA to collect all the reports, including to
ensure citizenship of the adoptive country is granted the adopted child.

12. Such a detailed procedure is to ensure that the adopted child, who
leaves our country, remains protected and in case the adoption goes
wrong, the child is not left in the lurch in a foreign country. This follow
up is crucial even with adoptions within India. A failed adoption is
extremely traumatic for a child and counselling and protection have to be
extended immediately. The local agency, who watches over the progress
of the adoption process, is required to visit the family and submit a
detailed report on the progress of the adopted child in the adopted family
and report to CARA/court any indication of a problem in the process. The
local agency is also required to intervene on its own to resolve issues
wherever possible, as the aim of all concerned is that the child settles
down in the new environment happily. That is why strict adherence to the
prescribed procedure has to be insisted upon.

13. For the Hindus, their personal law recognizes adoption. Therefore,
the adoption ceremony known as “Datta Homam”, where the biological
parents voluntarily surrender and hand over the child to the recipient,
following religious ceremonies, was considered sufficient to result in a
valid and legal adoption. The relationship of the biological family to the
child given in adoption extinguishes when this ceremony is conducted.
However, this right to adopt has been brought under the Hindu Adoptions
and
Maintenance Act, 1956 (“HAMA”, for short) which lays down
certain limitations on who can adopt and who can be adopted [
Sections 7,
8, 9 10 ] and what are the other conditions for a valid adoption [Section

W.P. (C) 3187/2021 Page 6 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
11]. Therefore, even under the HAMA the giving and taking of the child
must actually occur, even if the “datta homam” is not performed. A
registered document purporting to record an adoption made and signed by
the person giving and the person taking is to be presumed to have been in
compliance with the requirements of HAMA unless disproved [
Section
16]. HAMA is applicable only to Hindus as defined in
Section 2, and
specifically provides that it applies to „any other person who is not a
Muslim, Christian, Parsi or Jew by religion‟.

14. There are a large number of adoptions that have taken place
socially amongst the Hindus without the necessity of approaching the
court for validating an adoption. The JJ Act has recognised these
adoptions even in the case of Non-Resident Indians (NRIs) and Overseas
Citizens of India (OCIs) [
Section 59 of the Act].

15. However, as far as Muslims and Christians are concerned, their
personal laws do not recognise adoption. As HAMA excludes them, they
cannot seek to adopt a child in terms of that Act, including by means of a
registered document recording an adoption. In order to fulfil their desires
of having a child through adoption, their only option is to come under the
JJ Act. The relevant Sections thereof read as under-

“58. Procedure for adoption by Indian prospective
adoptive parents living in India.
(1) Indian prospective adoptive parents living in India,
irrespective of their religion, if interested to adopt an
orphan or abandoned or surrendered child, may apply
for the same to a Specialised Adoption Agency, in the
manner as provided in the adoption regulations framed
by the Authority.

W.P. (C) 3187/2021 Page 7 of 25

Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
xxx xxx

59. Procedure for inter-country adoption of an
orphan or abandoned or surrendered child.

xxx xxx

(3) A non-resident Indian or overseas citizen of India,
or person of Indian origin or a foreigner, who are
prospective adoptive parents living abroad,
irrespective of their religion, if interested to adopt an
orphan or abandoned or surrendered child from India,
may apply for the same to an authorised foreign
adoption agency, or Central Authority or a concerned
Government department in their country of habitual
residence, as the case may be, in the manner as
provided in the adoption regulations framed by the
Authority.

xxx xxx ” (Emphasis added)

16. It is, thus, clear that a person interested in adopting a child is not
limited by his or her religion, if adoption is sought under the JJ Act.
However, in order to adopt a child under
Sections 58 and 59(3), it is
equally imperative that the provisions of the JJ Act read with CARA
Guidelines and now, the Adoption Regulations, 2017, are also to be
followed to the „T‟.

17. In the case of children, who have to be taken abroad under the
Hague Convention, the Central Agency, as recognised in each country,
have to issue a NOC. This NOC is important as it certifies that the child is
a validly adopted child and is not being trafficked out of the country. In
the present case, Ms. Biji Rajesh, learned counsel had, on behalf of the

W.P. (C) 3187/2021 Page 8 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
respondent No.1/CARA, submitted that the petitioners have not validly
adopted the minor. Therefore, CARA cannot issue the NOC that the
petitioners are seeking. It was submitted by the learned counsel that the
child had not come through the CWC, as it was neither surrendered nor
found abandoned, and the CWC had not declared the child fit for
adoption. Furthermore, the Home Study had not been conducted by an
agency that is recognised by CARA and in fact, the Home Study Report
has been obtained by the petitioners themselves, in order to claim
adherence to the Hague Convention.

18. Mr. Samar Bansal, learned counsel for the petitioners, has argued
that the petitioners have suffered on account of wrong legal advice.
However, the child has not been trafficked as the cousin of petitioner
No.2, who is also the attorney of the petitioners, namely, Sister EA, who
was also a Social Worker at the relevant time working in Ferozepur
District, Punjab, had acted out of compassion. During the course of her
social work, she came across the biological parents of the child being
Mr.M and Mrs.M, who were migrant manual labourers residing at V.
S.K.C., F., P., and had already lost two babies. The minor was born on
11th December, 2014 at V. K.P.K., T. and D. F., P. On the very next day,
Sister EA came to know of the birth through the self-help group of
marginalized women in V.S.K.C. She visited the house of the biological
parents along with the self-help group women and finding the mother
unable to feed the infant, took the child on 12th December, 2014 to a
Pediatrician (Dr. S) in Ferozepur City, who declared that the child was so
severely malnourished that she may not survive the night with her
biological parents.

W.P. (C) 3187/2021 Page 9 of 25

Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44

19. According to the learned counsel for the petitioners, the biological
parents were very happy to hand over the child to Sister EA, as they were
confident that the child would have a bright future, if given in adoption.

20. It is further submitted by the learned counsel that between 12 th and
18th December, 2014, since the biological father insisted on getting the
legal formalities done, Sister EA contacted an advocate/document writer
in Ferozepur, who drew up the Adoption Deed. On 18th December 2014,
after performing customary rituals in respect of the adoption in the
presence of the Panchayat elders, the biological parents of the minor
executed the Adoption Deed thereby giving the child in adoption to the
petitioners. This Adoption Deed, duly witnessed by the
S. of V. K.C.W.
along with Sister EA, was registered with the Sub-Registrar, Ferozepur
on 18th December, 2014 (Annexure P-4).

21. Difficulties arose when the petitioners sought a passport for the
child to enable them to take the child to USA where they were employed.
An application was submitted to the Regional Passport Office, Amritsar
on 23rd April, 2015, but except for exchange of several communications,
the respondent No.2 failed to issue the passport. Then, the petitioners
instituted a Civil Suit No.CS/386/2015 on 30th April, 2015 before the
Civil Court, Ferozepur against the biological parents for a decree of
declaration that the minor was their legally adopted daughter. This Suit
was dismissed by the Additional District Judge (Sr. Division), Ferozepur
on 29th May, 2015 holding that no cause of action to file the suit for
declaration had arisen against the biological parents as they had never
refused the claim of adoption (Annexure P-5).

W.P. (C) 3187/2021 Page 10 of 25

Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44

22. Thereafter, another Suit was instituted by the petitioners being
Civil Suit No.CS/680/2016 on 10th August, 2016 in the Court of the
Additional Civil Judge (Senior Division), Ferozepur, praying for a decree
of declaration that the minor was their adopted daughter and for a decree
of injunction to the Passport Authority to issue the passport to the child
mentioning the name of the adoptive parents/petitioners. In this suit,
CARA was also impleaded as defendant No.3. Both, the Regional
Passport Office/UOI and CARA opposed the suit filing their written
statements and evidence was led in support of the suit by the petitioners
through the affidavits of Sister EA and Mr. M, who were also cross-
examined by the present respondents No.1 and 2 being defendants therein
(Annexure P-8).

23. This suit was also dismissed by the learned Additional Civil Judge
(Senior Division), Ferozepur vide judgment and decree dated 17th April,
2018 holding that the Adoption Deed was void being contrary to the
provisions of
Section 2(1)(c) read with Sections 5 6 of the HAMA, as
the biological parents and the adoptive parents are Christians by faith.

24. From these facts, it is established that the minor has not been
validly adopted by the petitioners. The Adoption Deed drawn up under
the HAMA is invalid as the parties are Christians and not Hindus. Thus,
no valid Adoption Deed exists to establish the relationship between the
petitioners and the minor. No court has declared the minor to be the
adopted child of the petitioners. The procedure prescribed for adoption
under the JJ Act has also not been adhered to. The CARA cannot be,
therefore, faulted in refusing to issue the NOC on the ground that the
child has not been validly adopted.

W.P. (C) 3187/2021 Page 11 of 25

Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44

25. It was quite possible for Sister EA, being a social worker, to have
taken the biological parents of the child to the CWC to record the
voluntary surrender of the infant and to enable the CWC to declare the
surrendered child as fit for adoption. Further, through the SAA, she could
have also assisted the adoption of the minor child after the conduct of a
proper Home Study and Child Study and placing the same through the
SAA, before the District Judge. But clearly, it was not just the welfare of
the infant that was uppermost in the mind of Sister EA, when she
embarked on the project of getting the child, born to Mr.M and Mrs. M,
adopted, but rather to facilitate her cousin, petitioner No.2, to obtain a
child in adoption, without having the necessity to follow a detailed and
somewhat time consuming procedure and the possibility of a long wait, of
possibly a few years, for a child becoming available to the petitioners for
adoption. That is the only reason why the law was bypassed in this case.

26. The learned counsel for the petitioners also argued that the present
case was one of “direct adoption” and since the requisite documents have
been submitted by the petitioners to CARA, on the basis of those
documents, CARA ought to issue the NOC. Reliance has been placed on
the policy decision of the Steering Committee dated 23 rd June, 2016
(Annexure P-10), where the following was decided and is reproduced for
ready reference as below: –

“D. Direct Adoption
In the case of Direct Adoption, the cases where the
PAPs have registered Adoption Deed and obtained a
Court Order under HAMA before the enactment of JJ
Act 2015 i.e. 16.10.2016, the cases may be disposed of
on minimum requisite documents according to the
W.P. (C) 3187/2021 Page 12 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
decision of 2nd Steering Committee held on
23.06.2016 which states that “Any direct adoption
done prior to 15th January 2016 (date of the
enforcement of JJ Act, 2015) may be disposed of on
compliance of minimum requisite documents after
proper verification of such adoption cases by State
Government concerned.”

The documents which are required as per Steering
Committee decision are as follows:

1. State Verification report / Family Background
report and source verification of the Child (or CWC
certificate) and antecedents of biological parents.

2. Home Study Report of the PAPs with support
documents.

3. Permission letter/ Article 5/17 from the receiving
country or permission letter from Embassy of the
receiving country in case of OCI/Foreigner living in
India.

4. Committee’s approval to proceed with the case.

Note: All Direct Adoption cases are placed for
approval up to the level of CEO, CARA before
proceeding on the case.

If the case doesn’t fall under the purview of the
decisions mentioned above, the case is considered for
further process with the approval of Committee and
CEO, CARA.

In cases where the registered Adoption Deed is
available executed before the enactment of JJ Act
2015 i.e. 16.01.2016, we may ask the PAPs to obtain
Suit of Declaration for further course of action.

W.P. (C) 3187/2021 Page 13 of 25

Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
After the receipt of all the above mentioned required
documents, the case put up to NOC Committee for the
approval and after that NOC is issued.

After issuing NOC, the Conformity Certificate is
issued for the child under
Article 23 of Hague
Convention.

After. receiving the FRRO request, a letter is sent to
the FRRO confirming the issuance of NOC and
Conformity Certificate.”

27. The learned counsel for the petitioners has argued that the Family
Background Report and the Home Study Report were furnished to the
CARA, which had itself made enquiries on the status of the child, who
was presently residing at Kollam in Kerala since 18 th December, 2014
and the report has been a favourable one. Therefore, as the biological
parents had directly handed over the child to the adoptive parents, in
terms of the afore-extracted decision of the Steering Committee, there
was no reason for CARA to deny the NOC by refusing to treat it as a case
of direct adoption prior to 2016.

28. The argument is completely fallacious. Christians have no custom
of giving and taking in adoption. The “direct adoption” is with reference
to Hindus. That is why there is reference to HAMA. Drawing up an
adoption deed under HAMA in relation to Christians is not legally valid
as held by the Additional Civil Judge (Senior Division), Ferozepur. In
reality, no adoption has taken place at all, leave alone prior to 2016.

29. Finally, the learned counsel for the petitioners urged this Court to
consider that since the child does not know her biological parents as she

W.P. (C) 3187/2021 Page 14 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
has been with the petitioners and the parents of the petitioner No.2 since
18th December, 2014 and she has integrated with the family and was very
fluent in English and Malayalam and was studying in a good school in
Kollam, to disturb the arrangement would not be in the interest and the
welfare of the minor. The learned counsel further submitted that despite
the constraints that the petitioners were facing, they were still periodically
visiting India in a year to be with the minor, but they were keen to give
her better opportunities by taking her with them to USA where the
petitioner No.1 is currently working for the New York City Employees’
Retirement System/Information Technology Division, as a Certified IT
Administrator, and the petitioner No.2 is working as Full-Time registered
Nurse in North Shore University Hospital, Manhasset, New York. They
were not able to do so, only because neither the respondent No.2 was
issuing a passport reflecting the names of the petitioners as the parents of
the minor nor was CARA issuing the requisite NOC.

30. The learned counsel also highlighted the Home Study Report dated
23rd October, 2019 recommending the petitioners to be suitable for
adopting a child 0-72 months and qualified for placement. The Form I-
800A for “Determination of Suitability to Adopt a Child from a
Convention Country” was also applied for by the petitioners and was
approved on 4th March, 2020. He submitted that the petitioners were
ready and willing to undergo further certifications, if necessary. He
pointed out that on 5th March, 2020, the parents of the petitioner No.2
received a call from Ferozepur District Child Protection Officer,
enquiring about the child and were also shared a copy of the letter dated
2nd March, 2020 (Annexure P-16), written to the Ferozepur District

W.P. (C) 3187/2021 Page 15 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
Programme Officer by the Deputy Director, Women and Child
Development Department, Chandigarh, with the following queries: –

“Subject:- In the matter of an illegal and adoption of
child J (DOB:11/12/2014) by Mr.JS and Mrs.MS from
M and Mrs.M (natural Parents) On the subject cited
above.

As per your letter dated 07.05.2018, the Hon’ble Court
has passed its order in favour of defendant i.e. Central
Adoption Resource Authority, New. Delhi, Ministry of
Women and Child Development, New Delhi, Ministry of
External Affairs, New Delhi and the Regional Passport
Office Authority, Amritsar, Punjab.
Therefore you are directed to send the action taken
report on the following issues.

a) Any action initiated Against RS (Nun) Sr. E LFRC
of Sh. MS

b) Any action initiated against Mr. JS and Mrs. MS
R/a H., S., G.E., L.W.R., F.C.

In addition to above, supply the information on the
following:-

1) Present status of the child named J alias JJS.

2) Is the Mother Teresa Home still working in your
district and Sri. MS

3) Any counseling sessions conducted with biological
parents of the child i.e. Mr. M and Mrs. M.

Therefore, you are directed to send your reply within
10 days so that Central Adoption Resource Authority,
New Delhi can be apprised.”

31. Pursuant thereto, on 12th March, 2020, the parents of the petitioner
No.2, with whom the child was residing in Kollam, submitted with the

W.P. (C) 3187/2021 Page 16 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
Child Protection Agency, Kollam, Kerala in the Collectorate Office, the
following documents: –

(i) School ID of the Child.

(ii) Vaccination papers of the Child.

(iii) Medical fitness papers of the Child and grandfather.

(iv) Recent Photographs.

(v) Growth chart of the Child.

(vi) Income Tax returns of grandfather.

32. Thereafter, on 14th July, 2020, the petitioner No.1 received a
Communication dated 10th July, 2020 from CARA, rejecting the request
of the petitioners for issuance of certificate to the effect that the child was
legally free for adoption. The learned counsel submitted that thus, for the
last almost seven years, the petitioners have been struggling. Hence, he
prayed that this Court set aside the Communication of CARA dated 10 th
July, 2020, and direct them to issue the requisite NOC and all other
requisite approvals, permissions and certificates, to enable them to take
the minor as their adopted child to USA, with a further direction to the
respondent No.2 to issue a passport to the child naming the petitioners as
her parents.

33. No doubt, the petitioners have been struggling, but they have only
themselves to blame. CARA cannot be blamed for sticking to the Rules.
The parties being Christians could not have executed an Adoption Deed
under the HAMA. There is no court order declaring the minor to be the
adopted child of the petitioners. In fact, probably being aware of the
procedure for adoption, no specific prayer has been made in the instant
petition to this Court for such a declaration. Be that as it may, this Court

W.P. (C) 3187/2021 Page 17 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
is inclined to explore such a possibility. The reasons why it is so
inclined, are the following:

(a) The child has been handed over by the biological parents to
Sister EA immediately after the birth and since then, has
been taken care of by the family members of the petitioners;

(b) The copies of the evidence recorded in the second civil case,
C.S./680/2016, which have been placed on this record as
Annexure P-8, includes a statement on oath by the biological
father of the minor that he had given his child in adoption to
the petitioners. He was duly cross-examined on his
statement, but clearly, being only a migrant labourer, could
not have known the nitty-gritties of the process for legal
adoption. It is clear from the statement of Sister EA as well
as the biological father that he had insisted on some legal
documentation. This reflects that while he was ready to hand
over his child to Sister EA for adoption by the petitioners, he
was concerned that no harm should come to his child on
account of improper documentation. In her testimony before
the court of learned Additional Civil Judge, (Senior
Division), Ferozepur, she made a statement that she had got
the Deed prepared under HAMA on account of the fact that
such advice had been given to her by an
Advocate/document-writer having his office at Old Kachari
Tehsil Complex Ferozepur City, as also by one, Mr. S, who
was working with the Porvanchal Gramin Sewa Samiti

W.P. (C) 3187/2021 Page 18 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
(PGSS), Gorakhpur, that it was okay to do so. It is not clear
whether Sister EA had explained to them that the parties
were Christians and not Hindus. Be that as it may, what can
be accepted is that the intent of the biological parents was to
surrender the child for adoption and instead of stating so
before the CWC, which would have then put up the child for
adoption in terms of the Rules, a „direct adoption” was
facilitated by Sister EA, which was against the law.

(c) Though what Sister EA did was most improper, by having
taken the child to an accommodation given to the employees
of the Little Flower Religious and Charitable Society
(LFRCS), where she was employed, though that was not an
institution recognized for processing adoption cases, and
without any order of the CWC handing the baby to her as a
“fit person” under the JJ Act, nevertheless, it does not appear
that Sister EA was indulging in trafficking of children for the
purposes of adoption. To that extent, it appears, on the basis
of the testimonies recorded by the Court of Additional Civil
Judge (Senior Division), Ferozepur, that the sourcing of the
child for adoption is not under cloud.

(d) Even though the Home Study Report, which is very
extensive, has been submitted by the Family Services of
Westchester in the State of New York, which agency has not
been recognized as an agency for Home Study by CARA, it
does reflect that the petitioners are well placed in life and are

W.P. (C) 3187/2021 Page 19 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
quite capable of taking care of a child given to them in
adoption. The Home Study Report dated 20th May, 2021
filed in Court, also refers to a very important fact that the
petitioner No.2 is herself an adopted child and it appears that
the family and the extended family are quite comfortable
with the thought of bringing into the family, an adopted
child. The family history of petitioner No.2 would show that
the parents of petitioner No.2, though Christians, had taken a
child in adoption and had taken good care of that child.

(e) The CWC of Kollam District had vide their response dated
3rd April, 2021 to the letter received from the District Child
Protection Officer, District Child Protection Unit, Kollam,
which itself was required to verify the status of the child by
Ferozepur District Child Protection Unit, which had sought
this verification on directions of CARA, had unanimously
informed that “the Child Welfare Committee, Kollam
observes that the life of the child is safe at the hands of Shri.
NP and Smt.C” (the parents of petitioner No.2). Though the
Report is quite wanting in details, nevertheless, it records the
satisfaction of the CWC before whom Sh. NP had produced
the child.

34. The overall picture that emerges on the basis of all these materials
is that the child has not been trafficked. Though no formal surrender was
made by the biological father before the CWC at Ferozepur, he has
affirmed on oath before the Additional Civil Judge (Senior Division),

W.P. (C) 3187/2021 Page 20 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
Ferozepur that he had handed over the child for adoption voluntarily.
Though there is no valid adoption of the child, the petitioners and the
parents of the petitioner No.2 have taken good care of the child.

35. The contention of learned counsel for the petitioners that their case
was to be governed by the Rules existing under the old Act, cannot be
accepted by this Court. There has been no adoption so far and as on date,
the question of adopting a child will need to be considered on the extant
Rules. Under the Model Guidelines for Foster Care, 2016 read with Rule
44(v) of the Juvenile Justice (Care and Protection of Children) Model
Rules, 2016, a Foster Family, who has been taking care of a child for a
minimum of 5 years, can apply under the prescribed procedure for
adoption, which is slightly different from the procedure in normal course.
The relevant provisions are reproduced herein below-

“JJ Act 2015

Section 2 (30) “foster family” means a family found
suitable by the District Child Protection Unit to keep
children in foster care under
section 44.

Section 44. Foster care.–(1) The children in need of
care and protection may be placed in foster care,
including group foster care for their care and protection
through orders of the Committee, after following the
procedure as may be prescribed in this regard, in a family
which does not include the child’s biological or adoptive
parents or in an unrelated family recognised as suitable
for the purpose by the State Government, for a short or
extended period of time

W.P. (C) 3187/2021 Page 21 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
Juvenile Justice (Care and Protection of Children)
Model Rules, 2016
Rule 44(v) Where the child has remained with a
foster family for a minimum of five years other than in
preadoption foster care, the foster family may apply for
adoption and shall be given preference to adopt the child
after the child has been declared legally free for adoption
and after registering in Child Adoption Resource
Information and Guidance System and according to
procedures laid down in Adoption Regulations.”

(Emphasis added)

36. Of course, this means that the child had to be handed over to the
petitioners/parents of the petitioner No.2 by the CWC, declaring them as
the “foster family”. Such an order is absent in the present case. Here too
the CWC has to declare the child “free for adoption”. This Court is of the
view, however, that to now relegate the petitioners to the CWC and
register themselves as per the Rules and Regulations, may further delay
the matter. In the interest of the welfare of the child, this Court, therefore,
declares the following:

i. That the child is a child who is fit for adoption;

ii. that the petitioners have looked after the minor child as a
“foster family” since the time the minor was handed over to
them immediately after birth and no further orders from the
CWC are required;

iii. the child is now more than six years old and is being well
taken care of by the petitioners and the parents of the

W.P. (C) 3187/2021 Page 22 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
petitioner No.2 and there is no cause to remove the child
from their charge and custody;

iv. that the petitioners are fit and qualified to seek adoption of
their foster child as enabled by the new Rules;

v. That the child be given in adoption to the petitioners.

37. Within the parameters of the law, this Court declares that the
petitioners, namely, JS and MS are the “adoptive parents” of the minor
child, namely, JJS and the minor child JJS is the “adopted child” of the
petitioners, named above, with effect from the date of this order and shall
be vested with all the rights, privileges and responsibilities that are
attached to a biological child. The date of birth of the child is recorded as
11th December, 2014 and the minor‟s name is declared as JJS with the
mother‟s name as MS and father‟s name as JS for the purposes of
issuance of a passport and for other legal requirements. The respondent
No.2 is directed to issue a passport to her accordingly.

38. As this Court has declared that the minor is the adopted child of the
petitioners, CARA is directed to issue the requisite NOC. It is further
directed that CARA shall not insist on compliance of provisions of
Section 59(3) in the JJ Act dealing with NRIs or OCIs. Additionally,
CARA shall also ensure that for a period of two years, an authorized
agency, recognized by it for this purpose, submits the Home Study
Reports at quarterly and half yearly intervals to CARA.

39. The petitioners shall furnish an undertaking to the Registrar

W.P. (C) 3187/2021 Page 23 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44
General of this Court that they shall bring up the minor JJS as their own
biological child and give her adequate educational and other
developmental opportunities within their means and take care of her
medical needs. The petitioners shall as also furnish an undertaking to the
Registrar General of this Court as also to CARA that they would be
permitting such Home Studies to be conducted by the approved and
recognized agency, for submission of the reports to CARA, and will not
prevent or interfere with such studies.

40. Since the Home Study Report submitted by the petitioners reflects
that both the petitioners, as also the parents of the petitioners are U.S.
citizens, the petitioners shall furnish a further undertaking to the Registrar
General of this Court that they shall immediately apply for and obtain the
US citizenship for their minor adopted child JJS. They shall also inform
the Registrar General of this Court on the progress made in this regard.
CARA will ensure that this aspect is included in the Home Study Reports
to be submitted to it at regular intervals and to follow it up till the
citizenship is accorded to the minor adopted child.

41. The required Certificate of Adoption be issued by the Registrar
General of this Court with the photographs of the minor child and her
adoptive parents, copy/duplicate of which shall be placed on this file. The
file of this case shall be maintained permanently.

42. Additionally, CARA is directed to ensure that all persons working
in or with Child-line and CCIs, are made fully aware of the adoption
process so that nobody is misguided.

W.P. (C) 3187/2021 Page 24 of 25

Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44

43. It is directed that the names, addresses and identities of all the
parties are camouflaged at the time of uploading of this judgement.

44. With the aforesaid directions, the petition is disposed of along with
the pending application.

(ASHA MENON)
JUDGE
JULY 26, 2021
pkb/s

W.P. (C) 3187/2021 Page 25 of 25
Signature Not Verified
Signed By:MANJEET KAUR

Signing Date:26.07.2021
22:13:44

Leave a Reply

Your email address will not be published.

Copyright © 2022 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation