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Ms. Ann Ninan vs Unknown on 7 January, 2019

IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.

G.P. No. 04/2018

Ms. ANN NINAN
D/o BRIG. THOMAS NINAN
R/o 1513 SECTOR 37, NOIDA,
GAUTAM BUDHA NAGAR­201303 (UP)
… PETITIONER

AND

1. STATE THROUGH
CENTRAL ADOPTION RESOURCE AUTHORITY
R. K. PURAM, NEW DELHI.

2. WELFARE HOME FOR CHILDREN
1­B, INSTITUTIONAL AREA,
SARITA VIHAR,
NEW DELHI­110044
THROUGH ITS GENERAL SECRETARY/
SOCIAL WORKER
…RESPONDENTS

Date of filing : 16.04.2018
First date before this court : 17.04.2018
Arguments concluded on : 14.12.2018
Date of Decision : 07.01.2019

Appearance : Shri Mohinder Singh and Ms. Diksha Ahuja, counsel for petitioner

JUDGMENT

1. Petitioner, an unmarried lady presently aged about 60 years
and Christian by religion was appointed guardian of a surrendered

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 1 of 13 pages
female minor child named Manila Ninan (hereinafter referred to as “the
said child”) by the court of District Judge, Delhi vide judgment dated
02.04.2005. By way of present petition, brought after amendment in the
law related to juvenile justice vide Juvenile Justice (Care Protection of
Children) Act 2015, the petitioner seeks to take the said child in
adoption. Respondent no. 1 is the statutory authority, regulating
adoptions in India and respondent no. 2 is the registered society, licensed
to keep and maintain abandoned, orphan and surrendered children.

2. The factual matrix pleaded by the petitioner is as follows.

2.1 The minor girl child now named Manila Ninan, born on
17.07.2002 was relinquished by her unwed mother on 12.04.2004 in
favour of the respondent no. 2 society. The unwed biological mother of
the said child has not revoked her decision of relinquishment till date.

2.2 The petitioner, a Christian by religion, being interested to be
appointed as guardian of the said child as her ward, filed an application
before respondent no. 2. After investigation and home study of
petitioner, having been satisfied about welfare of the said child,
respondent no. 2 delivered temporary custody of the said child to the
petitioner on 12.08.2004 and ever since then, the said child is being
brought up by the petitioner as her daughter.

2.3 After obtaining custody of the said child, petitioner filed a
petition under the provisions of Section 7 and 26 of the Guardian and

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 2 of 13 pages
Wards Act in which after inquiry followed by satisfaction, the court of
District Judge, Delhi vide judgment dated 02.04.2005 appointed the
petitioner as guardian of the said child till the said child attains the age of
majority, which is on 16.07.2023. Accordingly a certificate of
guardianship dated 21.04.2005 was issued by the District Judge, Delhi.

2.4 The said child presently aged about 15 years is being
brought up by the petitioner as her own daughter. Petitioner is affording
education of the said child and the said child has developed strong
bonding with the petitioner. Now the petitioner is desirous of adopting
the said child since the scope of guardianship is limited so far as welfare
and future interest of the said child after she attains the age of majority is
concerned.

2.5 Hence, the present petition.

3. Upon notice of petition, neither of the respondents objected
to the relief sought by the petitioner. In support of her case, petitioner
examined two witnesses and on behalf of respondent no. 2, one witness
was examined. I heard learned counsel for petitioner who took me
through record and the relevant law.

4. At this stage, it would be apposite to briefly traverse
through the legal position on the issue.

4.1 Statutory law related to adoptions is dealt with, amongst

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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 Agency (CARA)
came into existence. Upon enactment of the Juvenile Justice (Care and
Protection) Act, 2015, the Central Adoption Resource Agency 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.

4.2 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.

4.3 Section 57 of the Act of 2015 lays down the eligibility of
the prospective adoptive parents (PAPs), to the effect that PAPs must be
physically fit, financially sound, mentally alert and highly motivated to

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 4 of 13 pages
adopt a child for providing good upbringing to the child; that in 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.

4.4 Section 58 of the Act of 2015 lays down the procedure for
adoption by the Indian PAPs living in India. As per the said procedure,
Indian PAPs living in India desirous of adopting an orphaned or
abandoned or surrendered child may apply for the same to a Specialized
Adoption Agency, who shall prepare a Home Study Report of PAPs and
upon finding them eligible shall refer a child declared legally free for
adoption with the Child Study Report and Medical Report and on receipt
of acceptance of the child from the PAPs along with the Child Study
Report and Medical Report signed by PAPs, the Specialized Adoption
Agency shall give the child in pre­adoption foster care and shall file an
application in court for obtaining adoption order.

4.5 Section 59 of the Act of 2015 lays down procedure for inter­
country adoption of an orphan or abandoned or surrendered child,
holding that where despite efforts an orphan or abandoned or
surrendered child could not be placed with Indian or non resident Indian
(NRI) PAPs within sixty days from the date of declaration of being
legally free for adoption, the child shall be free for inter country adoption
and for that purpose, an eligible NRI or Overseas Citizen of India (OCI)
or Person of Indian Origin (PIO) shall be given priority.

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 5 of 13 pages
4.6 Section 60 of the Act of 2015 lays down procedure for inter­
country relative adoption, holding that a relative living abroad, who
intends to adopt a child from relative in India, shall obtain order from the
court and apply for no objection certificate from CARA in the manner as
provided in the Adoption Regulations.

4.7 Section 61 of the Act of 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.

4.8 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 punishment and de­

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 6 of 13 pages
recognition, as contemplated by Section 65 (4) of the Act.

4.9 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.

4.10 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 up to 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.

5. Falling back to the present case, in her testimony as PW1,
petitioner deposed on oath the above mentioned contents of her petition
and proved on record the relevant documents as Ex.PW1/1 to Ex.PW1/7.

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 7 of 13 pages
The summoned witness from District Child Protection Unit VIII (SE)
produced and proved the relevant documents Ex.PW2/1 and Ex.PW2/2.
The social worker of respondent no. 2 appeared as RW1 and deposed
that custody of the said child born on 17.07.2002 had been transferred by
respondent no. 2 to petitioner and thereafter, the petitioner was appointed
as guardian of the said child till she would attain age of majority.

6. Ex.PW1/1 is the Higher Secondary Examination Certificate
of petitioner, reflecting her date of birth as 06.02.1959. Ex.PW1/2 is the
original medical certificate to the effect that the petitioner is not
suffering with any ailment or contagious disease. Ex.PW1/3 is the copy
of judgment dated 04.04.2005 of the District Judge, Delhi whereby
petitioner was appointed guardian of the said child. Ex.PW1/4 are
copies of income tax returns of petitioner. Ex.PW1/5 and Ex.PW1/6 are
the photographs of the petitioner and the said child respectively.
Ex.PW1/7 is the certificate reflecting that the said child is studying in
tenth standard in Step by Step School, Noida. Ex.PW2/1 is the
verification report issued by the District Child Protection Officer, DCPU
VIII (SE). Ex.PW2/2 is the report of Central Adoption Resource
Authority.

7. According to Ex.PW2/1 enquiry conducted by the District
Child Protection Officer, the said child had been relinquished by her
widower father and the said child was adopted by the present petitioner
on 12.04.2008 through Coordinating Voluntary Adoption Resource
Agency and the home study report of the said child had been submitted

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 8 of 13 pages
to CVARA. According to Ex.PW2/2, issued by the administrative officer
of Central Adoption Resource Authority, the said child had been
relinquished by her biological mother on 12.04.2004 in favour of the
present respondent no. 2 and her custody was transferred to the present
petitioner through judgment of the District Court under Guardian and
Wards Act.

8. I am conscious that there is no formal Child Welfare
Committee Certificate declaring the said child legally free for adoption;
that there is no home study report or child study report on record; and
that there is discrepancy in documentary record as to whether the said
child was surrendered by her widower biological father or by her unwed
biological mother. The question is as to whether on account of these
factors, which are explainable as having crept in over passage of time for
no fault of the said child or even the petitioner, the present petition be
dismissed, ignoring the other vital circumstances of this case and best
interest of the said child.

9. The vital circumstances for deciding the present petition are
that the said child, born on 17.07.2002 was surrendered by either of her
biological parents with the present respondent no. 2; that till date, neither
of the biological parents of the said child has come forward to claim her
custody; that the petitioner presently aged about 60 years was desirous of
adopting the said child but being a Christian by religion, she opted to
apply for only guardianship; that by way of judgment dated 02.04.2005,
the then learned District Judge, Delhi after satisfying himself as regards

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 9 of 13 pages
welfare of the said child appointed the petitioner as her guardian; that
ever since 12.08.2004, the said child has been living with the petitioner
as her daughter and petitioner is affording education and upbringing to
the said child and they have developed strong emotional bond; that under
section 58 of the Juvenile Justice (Care and Protection of Children) Act a
prospective adoptive parent living in India, irrespective of religion can
adopt a child.

10. Another vital circumstance keeping in mind the age of the
said child is my observation recorded after interaction with her, which is
quoted below:

“Present : Ms. Diksha Ahuja, counsel for petitioner with
petitioner and her daughter Ms. Manila in person
I have interacted with the child Ms. Manila and
found her a happy confident child aged about 15 years, having a
strong bonding with the petitioner. Ms. Manila also disclosed
during interaction that she has concluded her 10 th standard and
she also disclosed about her career ambitions. In the course of
interaction, Ms. Manila also disclosed that petitioner being a
single mother, works from her residence itself and is available
to Ms. Manila 24 hours a day.

In view of previous record, list for final
arguments on 26.07.2018.

(Girish Kathpalia)
District Sessions Judge
South East, Saket Courts
New Delhi : 03.07.2018(a)”

11. In the year 2004 when the said child was surrendered by her

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 10 of 13 pages
biological parent and petitioner desired to adopt her, on account of
personal laws applicable to Christians, the petitioner could not adopt the
said child. And the law in force, namely the Juvenile Justice (Care and
Protection of Children) Act, 2000 did not contain any provision
analogous to the provisions of the Juvenile Justice (Care and Protection
of Children) Act, 2015 bearing explicit secular phrase “irrespective of
their religion”. Now, with the enactment of the Act of 2015, petitioner
has approached this court, taking shelter under the phrase “irrespective
of their religion” keeping in mind the welfare and best interest of the said
child, who would come out of the purview of the Guardian and Wards
Act upon attaining age of majority.

12. Petitioner and the said child having cultivated and nurtured
the strong mother­daughter bond for past about a decade and a half, now
directing the petitioner to move adoption application before respondent
no. 2, followed by the home study report and child study report would be
a meaningless exercise.

13. Unfortunately, chapter VIII of the Juvenile Justice (Care
and Protection of Children) Act, 2015 does not prescribe adoption
procedure pertaining to a case where the child concerned has already
been under guardianship of the proposed adoptive parent consequent
upon a judicial process under the Guardian and Wards Act. But such a
procedural void, which came into existence on account of lack of
legislative perception cannot be allowed to abrogate right of such child
to be adopted. Right of a child to be adopted cannot be sacrificed at the

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 11 of 13 pages
altar of procedural deficiencies since such children already orphaned or
abandoned would not be abandoned by the Republic forever. In such
cases, paramount consideration being welfare of the child, adoption must
be viewed more of the child right instead of procedural laxities.

14. In the case of Manuel Theodore D’Souza vs Unknown, II
(2000) DMC 292, the Hon’ble Bombay High Court after elaborate
discussion across various constitutional tenets held that the right of the
child to be adopted and consequently to have a home, a name and a
nationality has to be considered as part of his fundamental right to life.
The Hon’ble Court held:

“Custom must conform to Part III and not the other way. In so
far as the adoptive parents are concerned, it flows from the right
of such parents from Article 14 of the Constitution of India
even amongst those couples whose belief or customs do not
provide for adoption. They cannot be discriminated from
adopting a child without the State being accused of arbitrariness
and infracting Article 14 of the Constitution. Once a couple is
permitted under the Guardian and Wards Act of being capable
of taking a child in guardianship the consequence must follow
that the legal guardian can move the court for adoption of the
child in order to fulfill the constitutional objective of such a
child to have a home, a name and a nationality.”

15. As regards welfare of the said child, as mentioned above, on
the basis of material on record, the learned District Judge, Delhi vide
judgment Ex.PW1/3 recorded his satisfaction that the petitioner be
appointed as guardian of the said child. As further mentioned above,
ever since 12.08.2004, the said child is being brought up by petitioner as
her daughter. Petitioner is a well educated lady, working as a journalist
and editor, earning approximately Rs.6,23,000/­ per annum and enjoys

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 12 of 13 pages
good health. Petitioner has been affording good education to the said
child, who is the only responsibility of petitioner. The said child is
happily settled with the petitioner. That being so, in my view it would
be in the best of interest of the said child that she be given in adoption to
the petitioner.

16. In view of above discussion, the petition is allowed and with
immediate effect, the said child namely Manila Ninan, born on
17.07.2002 is declared to be the adopted daughter of petitioner Ms. Ann
Ninan, who has become adoptive parent of the said child.

17. The requisite certificate in respect of adoption of the said
child bearing photograph of the said child and the petitioner 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 cover be consigned to record room.

Announced in the open court on
this 7th day of January, 2019 (GIRISH KATHPALIA)
District Sessions Judge
Digitally signed South East, Saket Courts
by GIRISH
GIRISH KATHPALIA New Delhi 07.01.2019 (ar)
Date:
KATHPALIA 2019.01.07
16:38:37
+0530

GP No. 4/2018 Ann Ninan Vs. State Anr. Page 13 of 13 pages

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