IN THE COURT OF MS NEENA BANSAL KRISHNA
DISTRICT SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
G.P. NO. 23/2019
WELFARE HOME FOR CHILDREN
1B, INSTITUTIONAL AREA,
SARITA VIHAR, NEW DELHI 110076
THOUGH ITS SOCIAL WORKER MRS. ELCY JOLLY
…APPLICANT
VERSUS
1. MR. DENIS BRAGGION
S/O MR. OSVALDO BRAGGION
2. MRS. STEFANIA RIMANO
W/O MR. DENIS BRAGGION
BOTH R/O VIA RADETTA,
38145030 SAN
MARTINO DI VENEZZE (RO)
ITALY
THROUGH THEIR ATTORNEY
MS. AARTI SAINI
WELFARE HOME FOR CHILDREN
1B, INSTITUTIONAL AREA, SARITA VIHAR
NEW DELHI110 076.
…PROPOSED ADOPTIVE PARENTS
Date of filing : 23.08.2019
First date before this court : 26.08.2019
Arguments concluded on : 01.10.2019
Date of Decision : 11.10.2019
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 1 of 19 pages
Appearance : Ms. Diksha Ahuja, counsel for applicant
JUDGMENT
1. Applicant, a recognized Specialized Adoption Agency
under the provisions of Section 65, Juvenile Justice (Care and
SectionProtection of Children) Act 2015 has brought this application
under the provisions of Section 59 (7) of the Act and Regulations
12 (2) and 17 (1) of the Adoption Regulations, seeking declaration
of the Prospective Adoptive Parents namely Mr Denis Braggion and
his wife Mrs Stefania Rimano, both residents of Italy, as parents of
child Vinita (hereinafter referred to as “the said child”), born on
10.07.2015 and permission to take the said child to the country of
their residence for bringing up the said child as their natural child.
Applicant has also sought directions to the Registrar, SDMC for
issuance of birth certificate of the said child and directions to the
Regional Passport Office to issue passport to the said child. Since
an adoption case is nonadversarial in nature, in view of clause 12(5)
of the Adoption Regulations, 2017, nobody was arrayed as
respondent or as opposite party in the present proceedings and as
mandated by Regulation 12 (6) of the said Regulations, proceedings
in this case were held in camera.
2. Upon institution and registration of the petition, I
recorded the testimony of Ms. Elcy Jolly, a social worker of the
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 2 of 19 pages
applicant agency as well as testimony of Ms. Aarti Saini, attorney of
the proposed adoptive parents.
3. Due to the tender age of the proposed adoptive child,
interaction with the child was not possible.
4. After conclusion of proceedings, I heard learned
counsel for applicant, who took me through record.
5. The brief facts as pleaded in the application is as
follows:
5.1 The applicant agency has been recognized by the
Government of NCT of Delhi for rehabilitation of orphaned,
abandoned and surrendered children through adoption in accordance
with the provisions of the Juvenile Justice Act and the Adoption
Regulations. Applicant is also registered as a Child Care Institution
(CCI) and the said child being in their care and custody, applicant
intends to give the said child in adoption to the proposed adoptive
parents (PAPs) in accordance with Section 66 of the Juvenile Justice
Act.
5.2 The said child was declared legally free for adoption by
the Child Welfare Committee, Kalkaji District, New Delhi under the
provisions of Section 38 of the Juvenile Justice Act and the said
child is registered in the Child Adoption and Resources Information
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 3 of 19 pages
and Guidance System for the purposes of adoption as envisaged
under Sectionsection 56 (1) of the Juvenile Justice Act.
5.3 The PAPs are foreign nationals, residing in Italy. The
Proposed adoptive parent No. 1 was born on 05.05.1975 and is
about 44 years old and the Proposed adoptive parent No. 2 was born
on 09.11.1982 and is about 37 years old. The Proposed adoptive
parents were married on 26.05.2007 and have no biological child of
their own and look forward to adopt a child. The Proposed adoptive
father is working as Specialized Worker / Metal Worker with MTA
Spa – via dell’Artigianato, 2 – Conselve (PD) and his annual income
is € 28897/. The Proposed adoptive mother is Freelance –
Assurance Consultant for Alleanza Assicurazioni Spa – Via
Garidbaldi, 151 – Adria (RO). Her annual income is € 14923/ and
they have been found eligible and suitable to adopt by the
Authorized Foreign Adoption Agency namely I Bambini Dell’
Arcobaleno Adozioni Internationali, Italy, and has been approved by
the concerned Central Authority. The PAPs have been registered in
the Child Adoption Resource Information and Guidance System by
the Authorized Foreign Adoption Agency / Central Authority
namely I Bambini Dell’ Arcobaleno Adozioni Internationali, Italy
and they have been found eligible by the Central Adoption Resource
Authority (CARA) as per the criteria laid down in Section 57 of the
Juvenile Justice Act and Regulation 5 of the Adoption Regulations.
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 4 of 19 pages
5.4 The said child was referred to the PAPs online in Child
Adoption Resource Information and Guidance System through
Authorized Foreign Adoption Agency, I Bambini Dell’ Arcobaleno
Adozioni Internationali, Italy and was accepted by the PAPs by
signing the Child Study Report and Medical Examination Report on
21.05.2019.
5.5 The Central Adoption Agency issued No Objection
Certificate dated 20.06.2019 in favour of the PAPs.
5.6 The PAPs have undertaken that they will allow the
applicant or functionary of Authorized Foreign Adoption Agency /
Central Authority / Concerned Government Department to visit their
home in order to carry out post adoption followup to ascertain the
progress and the well being of the said child in the adoptive family,
as envisaged under Section 59 (11) of the Juvenile Justice Act. The
PAPs have also undertaken to upbring the said child as their own
and to accord her status, rights and privileges at par with the natural
child. The PAPs have given consent to take the said child in
adoption, as desired by the applicant.
5.7 Conditions laid down under Sectionsection 61 (1) of the
Juvenile Justice (Care and SectionProtection of Children) Act, 2015
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 5 of 19 pages
have been complied with. The Central Adoption Resource
Authority has issued No Objection Certificate for the proposed
adoption.
5.8 Neither the applicant nor the PAPs have any interest
directly or indirectly adverse to the said child.
5.9 Hence the present application, seeking that the PAPs be
declared as the parents of the said child born on 10.07.2015 for all
purposes allowed by law and the PAPs be permitted to take the said
child to the country of their origin for her upbringing as their own
child and for directions to the concerned authorities to issue birth
certificate and passport in the name of the said child.
6. The application was signed, verified and instituted by
Ms. Elcy Jolly, working as a Social Worker with the applicant
agency. Ms. Elcy Jolly appeared as PW1 and deposed on oath the
above mentioned contents of the application and proved on record
the necessary documents as Ex. PW1/1 to Ex. PW1/6.
7. The PAPs were represented in the present proceedings
through their attorney, namely Ms. Aarti Saini, Adoption Officer of
the applicant agency. Ms. Aarti Saini appeared in the witness box
as RW1 and stated that the proposed adoptive parent No. 1 was
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 6 of 19 pages
born on 05.05.1975 and is about 44 years old and the proposed
adoptive parent No. 2 was born on 09.11.1982 and is about 37 years
old; that the proposed adoptive parents were married on 26.05.2007
and have no biological child of their own and look forward to adopt
a minor child; that the proposed adoptive father is working as
Specialized Worker / Metal Worker with MTA Spa – via
dell’Artigianato, 2 – Conselve (PD) and his annual income is
€28897; that the proposed adoptive mother is Freelance – Assurance
Consultant for Alleanza Assicurazioni Spa – Via Garibaldi, 151 –
Adria (RO) and her annual income is € 14923 and they enjoy very
good status and sufficient means of livelihood; that I Bambini Dell’
Arcobaleno Adozioni Internationali, Italy, a recognized International
Adoption Agency has found the PAPs fit and suitable on the basis of
Home Study Report to adopt the said minor child; that it would be
in the interest and welfare of the said minor child, if the applicant is
permitted to give her in adoption to the PAPs as their daughter.
RW1 proved on record the necessary documents as Ex. RW1/1 to
RW1/28.
8. During arguments, learned counsel for applicant
referred to the above described facts and documents in the light of
relevant legal provisions.
9. Statutory law related to adoptions is dealt with,
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 7 of 19 pages
amongst other enactments, by chapter VIII of the Juvenile Justice
(Care and SectionProtection) 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
SectionMaintenance Act, the Guardian and SectionWards Act and guidelines laid
down by the Hon’ble Supreme Court of India in the case titled
SectionLakshmi Kant Pandey vs. Union of India, AIR 1984 SC 469, on
the basis whereof, Central Adoption Resource Authority (CARA)
came into existence. Upon enactment of the Juvenile Justice (Care
and SectionProtection) Act, 2015, the Central Adoption Resource Authority
was granted legislative recognition and was reconstituted as Central
Adoption Resource Authority (CARA) vide Section 68 of the said
Act. In the exercise of powers conferred by clause (c) of Section 68
read with clause (3) of Section 2 of the Juvenile Justice (Care and
SectionProtection) Act, 2015, Central Adoption Resource Authority framed
Adoption Regulations, 2017, which have been notified by the
Central Government on 04.01.2017.
10. Sections 56 to 73 of the Juvenile Justice Act, 2015,
forming chapter VIII of the Act deal with various aspects related to
adoption and lay down the mandate of law to operate as the testing
parameters to adjudge legality of an adoption. All intercountry
adoptions have to be in strict adherence with the provisions of
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chapter VIII of the Act and a person who takes or sends a child to a
foreign country or takes part in any arrangement for transferring the
care and custody of a child to another person in a foreign country,
without a valid order from the court is liable to punishment under
the provisions of Section 80 of the Act.
11. Section 57 of the Act lays down the eligibility of the
prospective adoptive parents, to the effect that PAPs must be
physically fit, financially sound, mentally alert and highly motivated
to adopt a child for providing good upbringing to the child; that in
case of couple, consent of both spouses for adoption is required
while a single or divorced person can adopt subject to fulfillment of
the criteria and in accordance with the adoption regulations framed
by the authority, though a single male is not eligible to adopt a girl
child.
12. Section 59 of the Act, relevant for present purposes,
lays down in details the procedure to be adopted for intercountry
adoption of an orphan or abandoned or surrendered child. If an
orphan or an abandoned or surrendered child could not be placed
with an Indian or a nonresident Indian PAP, despite the joint efforts
of the Specialized Adoption Agency (SAA) and State Agency (SA)
within 60 days from the declaration of the child to be legally free for
adoption, the said child shall be free for intercountry adoption,
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 9 of 19 pages
provided that children with physical and mental disabilities, siblings
and children above 5 years of age may be given preference over
other children for such intercountry adoption in accordance with
the regulations. An eligible nonresident Indian or overseas citizen
of India or persons of Indian origin have to be given priority in
intercountry adoption of Indian children.
13. Person(s), who is or are PAP(s) living abroad,
irrespective of their religion, if interested to adopt an orphan,
abandoned or surrendered child from India, may apply for the same
to an Authorized Foreign Adoption Agency or Central Authority or
a concerned Government department in the country of their habitual
residence in the manner as provided in the Adoption Regulations.
The Authorized Foreign Adoption Agency / Central Authority
concerned shall prepare a Home Study Report of such PAPs and
upon finding them eligible, will sponsor their application to the
authority for adoption of a child from India. Upon receipt of such
application of PAPs, if the authority finds the PAPs suitable, it will
refer the application to one of the SAA where children legally free
for adoption are available. The SAA shall match the legally free for
adoption child with the PAPs and send the Child Study Report and
the Medical Report of the child to the PAPs, who may accept the
child and return the Child Study Report and Medical Report, duly
signed by them to the said agency. Upon receipt of acceptance of the
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 10 of 19 pages
child from the PAPs, the SAA shall file an application in the court
for obtaining the adoption order in the manner as provided under the
Adoption Regulations. On receipt of certified copy of the court
order, the SAA shall send the same immediately to the authority,
State Agency and PAPs and obtain passport for the child. The
authority shall intimate about the adoption to the immigration
authorities of India and the receiving country of the child. The
PAPs shall receive the child in person from the SAA as soon as the
passport and visa are issued to the child. The Authorized Foreign
Adoption Agency or Central Authority concerned shall ensure the
submission of progress report of the child in the adoptive family and
shall be responsible for making alternate arrangement in case of any
disruption, in consultation with the authority and concerned Indian
Diplomatic Mission.
14. Section 61 of the Juvenile Justice (Care and
SectionProtection of Children) Act, 2015 lays down that before issuing an
adoption order, the court shall satisfy itself that the adoption is for
welfare of the child; that due consideration has been given to the
wishes of the child, having regard to the age and understanding of
the child; that there has been no monetary transaction or reward in
consideration of the adoption, except by way of adoption fees or
service charges or child care corpus, as contemplated by the
Adoption Regulations.
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 11 of 19 pages
15. The Specialized Adoption Agencies (SAA) derive their
existence from the recognition granted by the State Government in
accordance with the Adoption Regulations vide Section 65 (1) of
the Juvenile Justice (Care and SectionProtection of Children) Act, 2015
for the purposes of rehabilitation of orphan, abandoned and
surrendered children through adoption and noninstitutional 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 derecognition, as
contemplated by Section 65 (4) of the Act.
16. Section 66 of the Juvenile Justice (Care and
SectionProtection of Children) Act, 2015 contemplates that all the
institutions registered under the Act shall ensure that all orphan or
abandoned or surrendered children under their care are reported,
produced and declared legally free for adoption by the Child
Welfare Committee.
17. In that regard, Section 38 of the Act lays down the
procedure for declaring a child legally free for adoption. In case of
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an orphan and abandoned child, the Child Welfare Committee is
under a duty to make efforts for tracing out the parents or guardian
of the child and if after such enquiry, it is established that the child
is either an orphan or abandoned, the Committee shall declare the
child legally free for adoption and such a declaration has to be made
within a period of two months from the date of production of the
child aged upto two years and within four months for the child aged
above two years. In case of a surrendered child, the SAA or the
child supervising authority where the child has been placed by the
Committee on an application for surrender, shall bring the case
before the Committee immediately upon completion of two months
of surrender, as contemplated by Section 35 (3) of the Act and the
committee shall declare the child legally free for adoption.
18. Falling back to the present case, as mentioned above,
the said child namely Vinita is in care and custody of the applicant
Welfare Home for Children, which is recognized as SAA and the
said child has been declared legally free for adoption by the Child
Welfare Committee; on the other hand, the PAPs are foreigners
residing in Italy and on the basis of Home Study Report, they have
been found eligible and suitable to adopt a child and their proposal
to adopt a child from India has been recommended by the
Authorized Foreign Adoption Agency, namely I Bambini Dell’
Arcobaleno Adozioni Internationali, Italy. As also mentioned above,
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 13 of 19 pages
the reference of the said child has been accepted for adoption by the
PAPs by way of signing the Child Study Report and Medical
Examination Report and Central Adoption Resource Authority has
issued No Objection Certificate.
19. PW1 and RW1 have brought on record the necessary
documentary evidence, as follows.
19.1 Ex. PW1/1 is the Certificate issued by the Child
Welfare Committee, Kalkaji District, New Delhi, declaring the said
child Vinita in care of the SAA namely Welfare Home for Children,
legally free for adoption. Ex. PW1/2 is the No Objection Certificate
dated 20.06.2019 issued by Central Adoption Resource Authority to
the effect that there is no objection to the authority if the said child
namely Vinita is given in adoption to the PAPs namely Mr Denis
Braggion and his wife Mrs Stefania Rimano by the applicant. Ex.
PW1/3 is the Child Study Report prepared and signed by Ms. Aarti
Saini. Ex. PW1/4 is the Medical Examination Report of the said
child. The Child Study Report Ex. PW1/3 and Medical Examination
Report Ex. PW1/4 have been duly signed by the PAPs, certifying
that they have understood the contents of the said reports and are
willing to accept the said child as their adopted child. Both the said
reports Ex. PW1/3 and Ex. PW1/4 are duly supported with apostle
and are notarized. Ex. PW1/5 is the photograph of the said child.
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 14 of 19 pages
Ex.PW1/6 is the Registration / Recognition Certificate of the
applicant society issued by the Government of Delhi.
19.2 The social worker of the applicant, who is the duly
constituted attorney of the PAPs appeared as RW1 and proved on
record the Power of Attorney executed by PAPs in her favour as
Ex.RW1/1; Bond is Ex.RW1/2; Letter of Consent is Ex.RW1/3;
Undertaking from parents is Ex.RW1/4; Acceptance letter is
Ex.RW1/5; Child Approval is Ex.RW1/6; Child proposal form is
Ex.RW1/7; Declaration of willingness is Ex.RW1/8; Undertaking
by AFAA is Ex.RW1/9; Home Study Report and Annexure to HSR
is Ex.RW1/10; Eligibility Decree is Ex.RW1/11; Passports are
Ex.RW1/12 (colly); Birth Certificates of parents are Ex.RW1/13
(Colly); Proof of residence is Ex.RW1/14; Marriage Certificate is
Ex.RW1/15; General Certificates of Criminal Records are
Ex.RW1/16 (Colly); Health Certificates year 2016 and 2019 are
Ex.RW1/17 (Colly); Exams for HIV is Ex.RW1/18; Certificates of
income for year 2015 and 2018 are Ex.RW1/19 (Colly); Financial
statements of the banks and banking references is Ex.RW1/20;
Internal Revenue Service declarations for year 2016, 2017 and 2018
is Ex.RW1/21; Declaration of properties is Ex.RW1/22; Three
letters of references are Ex.RW1/23 (Colly); Family and house
photographs is Ex.RW1/24; Adoption Guarantee Letter (SectionArt.5) is
G.P. No. 23/19 Welfare Home for Children Vs. Denis Braggion Anr. Page 15 of 19 pages
Ex.RW1/25; Agency License from CAI (Italian Central Authority)
is Ex.RW1/26; Agency Authorization from CARA is Ex.RW1/27;
and desire to adopt is Ex.RW1/28.
20. As mentioned above, before issuing adoption order, this
court has to satisfy itself that adoption is for welfare of the said child
Vinita; that due consideration has to be given to the wishes of the
said child Vinita; and no monetary transaction or reward in
consideration of the adoption is being undertaken.
21. As regards welfare of the said child, Home Study
Report Ex. RW1/10 reflects that PAP no. 1, born on 05.05.1975
presently aged about 44 years is working Specialized Worker /
Metal Worker with MTA Spa – via dell’Artigianato, 2 – Conselve
(PD) and his annual income is € 28897/ while PAP no. 2, born on
09.11.1982 presently aged about 37 years is Freelance – Assurance
Consultant for Alleanza Assicurazioni Spa – Via Garidbaldi, 151 –
Adria (RO) and her annual income is € 14923/. The social worker
who carried out the Home Study Report of PAPs has recorded
extensive details of the past history of both PAPs, parental families
of both PAPs, finding the said families close knit and successful.
After recording extensive details related to personal, professional
and family history of PAPs, traversing through their social and
family environment, motivation to adopt, health and housing etc, the
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social worker who carried out the Home Study Report of PAPs
concluded that the PAPs are suitable to face upbringing and
education of child and they would give all their affection, resources
and capacity to help the child grow in comprehensive manner since
at a personal level PAPs have high level of maturity and stability;
PAPs have a very harmonious relationship as a family; PAPs do not
suffer from any infectious, contagious or mental illness that could
prevent them from adopting a minor; PAPs have a good and stable
occupation, which would allow them to bring up child without any
difficulty; PAPs live in excellent conditions and environment,
favourable for perfect development of a child; and PAPs have no
criminal record. Home Study Report Ex. RW1/10 coupled with
photographs Ex. RW1/24 (colly) amply establish that PAPs are
physically fit, financially sound, mentally alert and highly motivated
to adopt a child for providing her a good upbringing.
22. As also reflected from the above described record, both
PAPs have expressed their consent and willingness to adopt the said
child Vinita after going through the Child Study Report Ex. PW1/3
and Medical Examination Report Ex. PW1/4.
23. Going by the above circumstances, I am satisfied that it
would be in welfare of the said child Vinita to give her in adoption
to the PAPs for being brought up as their child.
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24. Therefore, the adoption application is allowed and it is
ordered that the said child Vinita, born on 10.07.2015 be given in
adoption to the PAPs Mr Denis Braggion and his wife Mrs Stefania
Rimano as their daughter with effect from 11.10.2019 and thereby,
henceforth the said child Vinita has become the adopted child of the
PAPs namely Mr Denis Braggion and his wife Mrs Stefania
Rimano, who have in turn henceforth become adoptive parents of
the said child Vinita. As regards prayer clauses (b) (c) of the
application, for issuance of birth certificate and passport, necessary
steps in accordance with clauses 18 and 36 of the Adoption
Regulations, 2017 be taken by the concerned authorities.
25. The petitioner shall file regular reports on post
adoption follow up in order to ascertain the progress and well
being of the said child to this Court as envisaged under Section
59 (11) of the Juvenile Justice Act for a period of two years from
the date of the order.
26. 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
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permission of the court and the entire sealed record be consigned to
record room.
Announced in the open court on
this 11th day of October 2019 (NEENA BANSAL KRISHNA)
District Sessions Judge
South East, Saket Courts
New Delhi
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