IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
G.P. No. 12/2018
NISHAT RIZVI
D/o LATE ABBAS RIZVI
C71, DEFENCE COLONY,
NEW DELHI 110024
… PETITIONER No. 1
AND
MANU RANA
H/o NISHAT RIZVI
C71, DEFENCE COLONY,
NEW DELHI 110024
…PETITIONER No. 2
Date of filing : 04.10.2018
First date before this court : 05.10.2018
Arguments concluded on : 07.12.2018
Date of Decision : 10.12.2018
Appearance : Shri Mohit Chaudhary, counsel for petitioners
J U D G M E N T
1. “Adoptive mom? I am mom. I need no other label or
prefix”Joanne Greco. That was the teary eyed silent expression of
petitioner no.1 during the course of my chamber interaction with the
‘fewdaystobecomemajor’ child to my question: “what if the present
petition failed?” And response of the child was: “big deal, she will
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always remain my mom”. That speaks volumes of the strength of bond
between the child and the mother.
2. The famous Russian attorney Irina Mikhailovna O’Rear
quote: “adoption comes from the heart, but the adoption process comes
from the Law. You should follow your heart, but be sure you also follow
the law” seems to be the spirit behind the present petitioners having
approached this court, seeking sanctification of their decision to provide
a family to the child Abby Rana @ Abeda Ali Rizvi, who was given
under their guardianship by a court of law more than a decade back and
the current legal position opened new vistas for them to secure the child
– their child.
3. Petitioner no. 1 and her husband petitioner no. 2 have
brought this petition under the provisions of Sections 5960 of the
Juvenile Justice (Care and Protection of Children) Act, 2015, seeking
adoption order pertaining to the child Miss Abby Rana @ Abeda Ali
Rizvi (hereinafter referred to as “the said child”), pleading the factual
matrix as follows.
3.1 Petitioners are Overseas Citizens of India, currently residing
in Defence Colony, New Delhi. Petitioner no.1 is a home maker and
petitioner no.2 is founder of a technology company. On 21.09.2012,
petitioners got married with each other and got their marriage registered
in the city of New York Office of the City Clerk, United States of
America.
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3.2 The said child was biologically born to Ms. Atiya Begum
and Shri Syed Laique Ali on 12.12.2000. Unfortunately, Shri Syed
Laique Ali passed away on 26.06.2002, whereafter Ms. Atiya Begum
being not in a position to bring up the said child, voluntarily handed over
custody of the said child to Ms. Qamar Almas Rizvi, who was paternal
aunt of the said child and mother of petitioner no.1.
3.3 Ms. Qamar Almas Rizvi took care of the said child and got
her admitted in a school in Secundrabad, naming herself as guardian of
the said child.
3.4 On 29.03.2008 Ms. Qamar Almas Rizvi passed away,
leaving behind the petitioners as local guardian and care taker of the said
child. Ms. Atiya Begum, the biological mother of the said child
categorically expressed that she did not want the said child back, so
petitioner no.1 happily assumed guardianship of the said child and got
the said child enrolled in a school in Shameerpet, Andhra Pradesh under
her guardianship.
3.5 Thereafter, the present petitioner no.1 filed a petition before
the Family Court, Secundrabad, under the provisions of Sections 7 10
of the Guardians Wards Act, 1896, seeking herself to be appointed as
guardian of the said child, which petition was registered as OP 389/08.
On the basis of no objection given by Ms. Atiya Begum, the Lok Adalat,
Fast Track Court, Secundrabad issued Award dated 01.11.2008, thereby
declaring the present petitioner no.1 as legal guardian of the said child.
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3.6 Petitioner no.1 applied and obtained passport in the name of
the said child, naming herself as single parent/guardian.
3.7 On 21.09.2012, petitioner no.1 got married with petitioner
no. 2 and the latter also started contributing financially to the upbringing
of the said child, treating her as their own daughter.
3.8 Petitioner no.1 also changed name of the said child from
Abeda Ali Rizvi to Abby Rana by way of notification in the Official
Gazette of India and the necessary documentation. Thereafter, petitioners
got renewed the passport of the said child, naming her Abby Rana and
naming both petitioners as her parents. Name of petitioner no.2 was also
added as father of the said child in her Aadhar Card and school records.
3.9 Hence, the present petition seeking adoption order,
declaring the said child as adoptive daughter of the petitioners.
4. In support of their case, petitioners examined six witnesses
including themselves. During arguments, learned counsel for petitioners
took me through the above narrated factual matrix and the relevant legal
position.
5. At the outset, it would be apposite to briefly traverse
through the legal position on the issue.
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5.1 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 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 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.
5.2 Section 38 of the Act of 2015 lays down the procedure for
declaring a child legally free for adoption. In case of an orphan or an
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 inquiry, 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
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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 Specialized Adoption Agency 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.
5.3 Sections 56 to 73 of the Act of 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.
5.4 Section 56(1) of the Act of 2015 lays down that adoption
shall be resorted to for ensuring right to family for the orphan,
abandoned and surrendered children and according to Section 56(2)
adoption of a child from a relative by another relative, irrespective of
their religion can be made as per provisions of the Act and Adoption
Regulations.
5.5 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
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
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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.
5.6 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.
5.7 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.
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5.8 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.
5.9 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.
5.10 Chapter IV of the Adoption Regulations framed by CARA,
which, as mentioned above, came to be notified on 04.01.2017, deal with
the adoption procedure for NRI and OCI PAPs.
5.11 Under Clause 53 of the said Regulations, such NRI/OCI
PAPs desirous of adopting a relative’s child can approach the concerned
authority for preparation of Home Study Report and for registration in
Child Adoption Resource Information and Guidance System; and such
authority on completion of the Home Study Report shall register the
application of the PAP in the Child Adoption Resource Information and
Guidance System alongwith the requisite documents, enlisted in
Schedule VI.
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5.12 On receipt of the requisite documents on Child Adoption Resource
Information and Guidance System, vide Clause 54 of the said
Regulations CARA shall forward the same to the District Child
Protection Unit (DCPU) for obtaining family background report of the
child proposed for adoption and the consequent family background
report of DCPU shall be forwarded by CARA to the receiving country as
required by the Hague Convention.
6. Falling back to the present case, the factual matrix and
evidence adduced on behalf of petitioners is as follows.
6.1 The said child was biologically born to Shri Syed Laique
Ali and Ms. Atiya Begum. Shri Syed Laique Ali, the biological father
of the said child passed away and thereafter, intending to get remarried,
Ms. Atiya Begum gave custody of the said child to Smt. Qamar Almas
Rizvi, who was paternal aunt of the said child.
6.2 After death of Smt. Qamar Almas Rizvi on 29.03.2008, her
daughter who is the petitioner no. 1 looked after the said child. By way
of Lok Adalat proceedings arising out of petition under Section 7 and 10
of the Guardian and Wards Act, petitioner no. 1 was appointed guardian
of the said child with the consent of Smt. Atiya Begum.
6.3 Thence, ever since 29.03.2008, the said child is being
brought up under guardianship of petitioner no. 1, who got the said child
enrolled in good public schools for education.
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6.4. The concerned official summoned from the concerned
Family Court of Secundrabad produced the original judicial record of
case titled : Nishat Rizvi and Atiya Begum, bearing OP No. 389/08,
photocopy whereof was taken on record as Ex. PW1/B. The said
official also produced the original Lok Adalat record as per which vide
award dated 01.11.2008, the present petitioner no. 1 was appointed
guardian of the said child and the photocopy of Lok Adalat record was
proved as Ex. PW1/C.
6.5 Record Keeper of Municipal Corporation, Aurangabad
produced the summoned record on the basis whereof, copy of death
certificate of Shri Syed Laique Ali, the biological father of the said child
was proved as Ex. PW2/A and Ex. PW2/B.
6.6 The Protection Officer from District Child Protection
Union, South, Lajpat Nagar, New Delhi produced the original
summoned record of the Home Study Report dated 06.11.2018 which
was conducted by the witness at the house of the present petitioners and
photocopy of the said record was exhibited as Ex. PW3/A.
6.7 An official from the Child Welfare Committee appeared as
PW4 along with original record pertaining to the said child and copy of
the entire file of Child Welfare Committee was exhibited as Ex. PW4/A
(colly).
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6.8 Petitioner no. 1 stepped into the box as PW5 and after
deposing on oath the above mentioned contents of her petition, tendered
in evidence the necessary documents as Ex. PW5/1 to Ex. PW5/16. The
document Ex. PW5/1 is the original No Objection Certificate dated
16.11.2018 issued by Central Adoption Resource Authority to the
present petitioners with respect to the said child. The document Ex.
PW5/2 is a copy of the report dated 12.11.2018 of the Child Welfare
Committee whereby after thorough inquiries, the said child was declared
as deemed abandoned and legally free for adoption. The document Ex.
PW5/3 is a copy of marriage certificate of the present petitioners. The
document Ex. PW5/4 is a copy of birth certificate of the said child. The
document Ex. PW5/5 is a copy of death certificate of Ms. Qamar Almas
Rizvi. The documents Ex. PW5/6 to Ex. PW5/8 are copies of the
documents pertaining to change of name of the said child from Abeda
Ali Rizvi to Abby Rana. The documents Ex. PW5/9 to Ex. PW5/11 are
identity documents of petitioners. The documents Ex.PW5/12 are family
photographs of petitioners with the said child. The documents Ex.
PW5/13 and Ex. PW5/14 are copies of lease deed and OCI card of
petitioner no. 1. The document Ex. PW5/15 is the print out of
registration of the present petitioners in the Central Adoption Resource
Authority records. The document Ex. PW5/16 is the medical fitness
certificate of petitioner no. 1.
6.9 Petitioner no. 2 stepped into the box as PW6 and after
deposing on oath the above mentioned contents of his petition, tendered
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in evidence the necessary documents as Ex. PW6/1 to Ex. PW6/4. The
documents Ex. PW6/1 and Ex. PW6/2 are copies of OCI card and
passport of petitioner no. 2. The document Ex. PW6/3 is the copy of
medical fitness certificate. The document Ex. PW6/4 is the copy of
income tax return of petitioner no. 2.
6.10 On 07.12.2018, I interacted with the said child inside my
chamber and recorded the following observations:
“In furtherance of last order, I interacted with the child
inside the chamber. As reflected from records, the
child is aged above 17 years. I found the child happy
and confident child being given good upbringing by
petitioners. I also found strong emotional bond
between the child and the petitioners as well as
between the child and biological son (aged about 1
year) of petitioners. As disclosed by the child, after
completing her schooling with Mother’s International
School, she has interned with an Art Gallery and is
confident and conscious about her future plans. The
child is fully conversant with the nature and
proceedings of adoption. In response to a specific
query, the child stated that even if formal adoption
order is declined, it would have no bearing on
emotional bond between her and the adoptive family
but she would not be able to cross many hurdles in
governmental procedures for taking care of her
adoptive parents as and when they need her, which is
what bothers her”.
7. Broadly speaking, as submitted by their counsel, petitioners
have set up their case, claiming it to be a case of intercountry relative
adoption.
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8. The term “relative” is defined under Section 2(52) of the
Act of 2015 as a paternal uncle or aunt, or a maternal uncle or aunt, or
paternal grandparent or maternal grandparent. In the present case,
according to the petitioners, Ms. Qamar Almas Rizvi, mother of
petitioner no.1 was paternal aunt of the said child. In other words, the
said child being cousin of petitioner no.1, the latter does not fall within
the definition of the term “relative” for the purposes adoption under the
Act of 2015.
9. On this aspect, learned counsel for petitioners had also
feebly tried to project that the said child can be treated as “surrendered
child” because she was surrendered by her biological mother before the
Guardianship Court. But that cannot be so, because the term
“surrendered child” is defined under Section 2(60) of the Act of 2015 as
a child who is relinquished by the parent to the Child Welfare
Committee, which is not the present case. Hon’ble Delhi High Court in
the case of PKH vs CARA, 2016 SCC OnLine Del 3918 examined this
aspect and held thus:
“68. The above mentioned provisions make it amply
clear that direct adoption cannot be considered as a
process by which the child becomes a “surrendered
child” because in the case of direct adoption, the
natural parent gives the child in adoption directly to
the adoptive parents without surrendering the child to
the CWC and/or any third entity or agency. In direct
adoptions, unlike the case of surrender, there is no
termination of the parentalchild relationship in favour
of the CWC or any third agency which then decides
whether or not to give the child in adoption.”
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10. In contrast to the above is the unchallenged documentary
and oral evidence that custody of the said child was voluntarily given by
her biological mother under guardianship of petitioner no.1 more than a
decade ago and since then the said child is being brought up by the
petitioners as their daughter and they have nurtured emotional bond so
strong that cessation, in terms of guardianship law once the said child
attains the age of majority, would cause immense trauma to the said
child and incurably dent her personality. That certainly could not be the
intent of the technical aspects of incident of adoption.
11. This dilemma, created by the technicality of law in the
backdrop of contrasting facts and circumstances needs deliberation.
12. Prior to decision of the Hon’ble Supreme Court in the case
of Lakshmi Kant Pandey (supra) in the absence of any law on adoption,
foreign parents who desired to adopt an Indian child would make an
application under the Guardians and Wards Act, 1890 to be appointed as
the guardian of the child after which the foreign parents would have the
right to take the child out of the country. The Hon’ble Supreme Court
noted that when the child is abandoned or when a parent wants to
relinquish a child and give the child up for adoption, then an effort
should be made to find prospective adoptive parents within India. If no
one was willing to adopt such a child in India, then the child could be
given to foreign parents since it would be wiser to give the abandoned,
orphaned or surrendered child for intercountry adoption rather than
condemning him/her to a life in an orphanage or an institution without
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any family support. The apex court also held that since the best interest
of the child has to be protected scrupulously, safeguards must be put in
place to ensure that intercountry adoptions are not resorted to by
persons who would mistreat the child. Thus, the Supreme Court held that
in order for foreign parents to adopt a child from India, the parents’
application for adoption should be sponsored by a child welfare agency
in the parent’s home country which agency must prepare a Home Study
Report of the parents. Further, a Child Study Report should also be
prepared. However, the Hon’ble Court was emphatic on the point that
the procedural and substantive safeguards which it laid down were
inapplicable to cases where the foreign parents directly adopt the child
from the natural parents and observed thus:
“We may make it clear at the outset that we are not
concerned here with cases of adoption of children
living with their biological parents, for in such class of
cases, the biological parents would be the best persons
to decide whether to give their child in adoption to
foreign parents. It is only in those cases where the
children sought to be taken in adoption are destitute or
abandoned and are living in social or child welfare
centres that it is necessary to consider what normative
and procedural safeguards should be forged for
protecting their interest and promoting their welfare.”
The justification provided for this exception was that when the child is
abandoned or rendered destitute or when the child is living in a welfare
centre then there is none to protect her interests. By contrast, in the case
of direct adoptions, the natural parents are best suited to judge whether it
would be in the best interests of the child to be given up for intercountry
adoption. Therefore, the decision in the case of Lakshmi Kant (supra) is
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categorical in holding that intercountry direct adoptions are outside the
ambit of the decision.
13. In the case of Anokha (Smt) vs State of Rajasthan, (2004)
1SCC 382, the Hon’ble Supreme Court examined the applicability of
Guidelines on Adoption to intercountry direct adoptions and the role of
CARA. Facts
of that case were that an Italian couple desired to adopt an
Indian child, so they filed an application under the Guardian and Wards
Act in the court of the District Judge, Alwar, who rejected the
application inter alia on the ground that the Central Government had
issued Guidelines for the Adoption of Indian Children which required an
authorized agency in the adoptive parents’ home country to sponsor an
adoption application and issue a noobjection certificate and in the
absence thereof the application of the Italian couple had to be rejected.
That decision was affirmed in appeal and the High Court held that in
addition to the adoption application being sponsored by an agency in the
foreign country, CARA must also issue a noobjection certificate. Thus,
the matter reached the Hon’ble Supreme Court in appeal. The Supreme
Court, following the decision of Lakshmi Kant Pandey (supra) held that
intercountry direct adoptions are not amenable to the rigours of the
procedural safeguards since the natural parents are best positioned to
judge what is in the best interests of the child. The apex court held thus:
“8. In our view, the High Court and the District Judge
erred in not considering the material produced by
Respondents 2 and 3 in support of their application
and in rejecting the application under the Guardians
and Wards Act, 1890 solely on the basis of the
Guidelines. The background in which the GuidelinesGP No. 12/2018 Nishat Rizvi and Manu Rana Page 16 of 23 pages
were issued was a number of decisions of this Court,
the first of which is Lakshmi Kant Pandey v. Union of
India[(1984) 2 SCC 244 : AIR 1984 SC 469]. This is
borne out from the stated object of the Guidelines as
set out in paragraph 1.1 thereof which “is to provide a
sound basis for adoption within the framework of the
norms and principles laid down by the Supreme Court
of India in the series of judgments delivered in L.K.
Pandey v. Union of India [(1984) 2 SCC 244 : AIR
1984 SC 469] between 1984 and 1991”. The original
decision of the Court was taken on the basis of a letter
written by one Laxmi Kant Pandey complaining of
malpractices indulged in by social organizations and
voluntary agencies engaged in the work of offering
Indian children in adoption to foreign parents. The
judgment has considered the problem at great length
after affidavits were filed not only by the Indian
Council of Social Welfare but also by foreign
organizations and Indian organizations which were
engaged in offering and placing Indian children for
adoption by foreign parents. The decision has referred
to three classes of children: (i) children who are
orphaned and destitute or whose biological parents
cannot be traced; (ii) children whose biological
parents are traceable but have relinquished or
surrendered them for adoption; and (iii) children living
with their biological parents. The third category has
been expressly excluded from consideration as far as
the decision was concerned “for in such class of cases,
the biological parents would be the best persons to
decide whether to give their child in adoption to
foreign parents” [Ibid., SCC p. 264, para 11 of the
Report] . The reason is obvious. Normally, no parent
with whom the child is living would agree to give a
child in adoption unless he or she is satisfied that it
would be in the best interest of the child. That is the
greatest safeguard.
9. The directions which have been given in the
decision are limited to the first and second categories
of children with more stringent requirements being
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laid down in respect of children in the first category of
cases. As far as adoption of children falling within the
second category is concerned, the requirements are not
so stringent. All that is required is that [Ibid., SCC pp.
26768, para 14] :
“[T]hey (viz. the biological parents) should be
properly assisted in making a decision about
relinquishing the child for adoption, by the
institution or centre or home for child care or
social or child welfare agency to which the
child is being surrendered. Before a decision is
taken by the biological parents to surrender the
child for adoption, they should be helped to
understand all the implications of adoption
including the possibility of adoption by a
foreigner and they should be told specifically
that in case the child is adopted, it would not
be possible for them to have any further
contact with the child. The biological parents
should not be subjected to any duress in
making a decision about relinquishment and
even after they have taken a decision to
relinquish the child for giving in adoption, a
further period of about three months should be
allowed to them to reconsider their decision.
But once the decision is taken and not
reconsidered within such further time as may
be allowed to them, it must be regarded as
irrevocable and the procedure for giving the
child in adoption to a foreigner can then be
initiated without any further reference to the
biological parents by filing an application for
appointment of the foreigner as guardian of the
child. Thereafter, there can be no question of
once again consulting the biological parents
whether they wish to give the child in adoption
or they want to take it back.”
10. The aforesaid observations only pertain to children
who have been or are sought to be relinquished or
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surrendered for adoption in general to a placement
agency or other institution where there is no contact
between them and the adoptive parents at all and not
to cases where the child is living with his/her
parent/parents and is agreed to be given in adoption to
a particular couple who happen to be foreigners.
……..
15. None of these provisions in the several decisions
of this Court impinge upon the rights and choice of an
individual to give his or her child in adoption to
named persons, who may be of foreign origin. The
Court in such cases has to deal with the application
under Section 7 of the Guardians and Wards Act, 1890
and dispose of the same after being satisfied that the
child is being given in adoption voluntarily after being
aware of the implication of adoption viz. that the child
would legally belong to the adoptive parents’ family,
uninduced by any extraneous reasons such as the
receipt of money etc.; that the adoptive parents have
produced evidence in support of their suitability and
finally that the arrangement would be in the best
interest of the child.”
14. In the present case also, Ms. Atiya Begum, the biological
mother of the said child, was the best person to decide about welfare and
best upbringing of her biological daughter, the said child. The biological
mother of the said child would not have agreed to give the said child
under the guardianship of petitioner no. 1 unless she was fully satisfied
that petitioner no. 1 would give complete love and affection as well as a
bright future to the said child. Satisfaction of Ms. Atiya Begum in this
regard was the greatest safeguard. Therefore, the stringent requirements
of procedural law have to be ignored in view of above described legal
position.
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15. Although in her duly sworn affidavit Ex. PW5/X, petitioner
no. 1 specifically deposed that she is secular by faith and does not follow
any particular religion, though she was born in a muslim family, during
arguments, learned counsel for petitioners also took me through the
judgment of Hon’ble Supreme Court of India in the case of Shabnam
Hashmi vs Union of India, (2014) 4 SCC 1 in which one of the
intervener the All India Muslim Personal Law Board contended that the
islamic law does not recognize an adopted child to be on a par with a
biological child. The Hon’ble Supreme Court of India held thus :
“13. The JJ Act 2000, as amended, is an enabling
legislation that gives a prospective parent the option of
adopting an eligible child by following the procedure
prescribed by the Act, the Rules and the CARA
guidelines as notified under the Act. The Act does
not mandate any compulsive action by any prospective
parent leaving such person with the liberty of
accessing the provisions of the Act, if he so desires.
Such a person is always free to adopt or choose not to
do so and, instead, follow what he comprehends to be
the dictates of the personal law applicable to him. To
us, the Act is a small step in reaching the goal
enshrined by Article 44 of the Constitution. Personal
beliefs and faiths, though must be honoured, cannot
dictate the operation of the provisions of an enabling
statute. At the cost of repetition, we would like to say
that an optional legislation that does not contain an
unavoidable imperative cannot be stultified by the
principles of personal law which, however, would
always continue to govern any person who chooses to
so submit himself until such time that the vision of a
Uniform Civil Code is achieved. The same can only
happen by the collective decision of the generations to
GP No. 12/2018 Nishat Rizvi and Manu Rana Page 20 of 23 pages
come to sink conflict in faiths and beliefs that are still
active as on date”.
16. There is another aspect. The document Ex. PW5/2 is the
detailed report dated 12.11.2018 of Child Welfare Committee (South
District) which was issued after detailed inquiry into above mentioned
facts of this case. According to the said report of the Child Welfare
Committee, Ms. Atiya Begum, the biological mother of the said child is
not even traceable now. After detailed narration of the steps taken in the
said inquiry, the Child Welfare Committee declared the said child as
deemed abandoned and legally free for adoption by the present
petitioners. The document Ex. PW5/1 is the No Objection Certificate
dated 16.11.2018 issued by Central Adoption Resource Authority in
favour of the present petitioners qua the said child on the basis of the
above report of Child Welfare Committee. The document Ex. PW3/A is
detailed Home Study Report dated 06.11.2018 of petitioners, conducted
by the Protection Officer of the District Child Protection Unit. The
procedural formalities for adoption of an abandoned child by an OCI, as
prescribed under Section 59 of the Act of 2015, which contemplate the
said reports and certificate as described above, also are accordingly
fulfilled.
17. As mentioned above, under Section 61 of the Act of 2015,
this court has to satisfy itself before issuing adoption order that the
adoption is for welfare of the said child, during consideration whereof,
wishes of the said child who is about to attain the age of majority have to
GP No. 12/2018 Nishat Rizvi and Manu Rana Page 21 of 23 pages
be given due respect and that no monetary transaction in consideration
of adoption has taken place. Report Ex. PW5/2 establishes that Ms.
Atiya Begum, the biological mother of the said child has gone into
oblivion after giving the said child under the guardianship of petitioner
no. 1 and is now not traceable despite extensive efforts of the Child
Welfare Committee through District Child Protection Unit, Jalgaon,
Maharashtra. The documents Ex. PW2/A B establish that Shri Syed
Laique Ali, the biological father of the said child has already passed
away. The Home Study Report Ex. PW3/A reflects that petitioner no. 1
is working as homemaker having graduated in Psychology while
petitioner no. 2 is entrepreneur with Masters in Technology and earning
approximately Rs. 12,00,000/ per annum and holds assets worth about
Rs. 6,00,00,000/; that petitioners are a close knit family having their
biological son and mother of petitioner no. 2 residing together in a
spacious house; and that the said child having completed schooling from
the Mothers International School has taken a gap year to plan higher
studies but during this period she has been interning in an Art Gallery.
The documents Ex. PW5/16 and Ex. PW6/3 reflect that petitioners enjoy
sound health and are not suffering with any communicable disease and
are medically fit to adopt a child. All these circumstances coupled with
the family photographs Ex. PW5/12 and my above quoted interaction
with the said child leave no doubt that the said child is very happy and
growing up well in the family of the petitioners. So, it will certainly be
in welfare of and best interest of the said child to allow her to be adopted
by the petitioners.
GP No. 12/2018 Nishat Rizvi and Manu Rana Page 22 of 23 pages
18. In view of above discussion, the petition is allowed and it is
directed that the child Miss Abby Rana @ Abeda Ali Rizvi, born on
12.12.2000 be given in adoption to the PAPs namely Ms. Nishat Rizvi
and Shri Manu Rana with effect from 10.12.2018. It is declared that
henceforth the said child Miss Abby Rana @ Abeda Ali Rizvi is the
adopted daughter of PAPs namely Ms. Nishat Rizvi and Shri Manu
Rana, who have become adoptive parents of the said child henceforth.
19. 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 10th day of December, 2018 (GIRISH KATHPALIA)
District Sessions Judge
Digitally signed
South East, Saket Courts
by GIRISH
New Delhi 10.12.2018 (a)
KATHPALIA
GIRISH
KATHPALIA Date: 2018.12.11
15:38:47
+0530
GP No. 12/2018 Nishat Rizvi and Manu Rana Page 23 of 23 pages
