IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
G.P. NO. 18/2018
WELFARE HOME FOR CHILDREN
1B, INSTITUTIONAL AREA,
SARITA VIHAR, NEW DELHI 110044
THOUGH ITS SOCIAL WORKER Mrs. ELCY JOLLY
…APPLICANT
VERSUS
1. Mr. CHANDRA SEKHER BANERJEE
S/o SHRI SUBHRANSU BANERJEE
2. Mrs. PARAMITA BANERJEE
W/o SHRI CHANDRA SEKHER BANERJEE
BOTH R/o 48, ABINASH CHANDRA BANERJEE LANE
KOLKATA 700010
…PROPOSED ADOPTIVE PARENTS
Date of filing : 11.12.2018
First date before this court : 12.12.2018
Arguments concluded on : 05.02.2019
Date of Decision : 06.02.2019
APPEARANCE : Shri Mohinder Singh, counsel for applicant
JUDGMENT
1. Applicant, a recognized Specialized Adoption Agency
(SAA) has brought the present petition under the provisions of
Section 58, Juvenile Justice (Care and Protection of Children) Act
2015, seeking permission to give the female child, namely Vritika,
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now named Tanusha, born on 06.09.2017 in adoption to the
Prospective Adoptive Parents (PAPs) as their daughter.
2. As pleaded by petitioner, being Hindu by religion,
PAPs got married on 23.02.2006 according to Hindu rites and
ceremonies. It is pleaded by the petitioner that PAPs have no
biological child. PAP No. 1 is a practicing lawyer in Kolkata High
Court and his gross annual income is Rs. 4,39,178/ whereas PAP
No. 2 is in private service with R.N. Tagore Hospital, Mukundapur
and her annual income is Rs. 3,28,574/ and they enjoy high status
and have sufficient means of livelihood.
3. As further pleaded by petitioner, on 20.11.2017, a
minor female child namely Vritika, now named Tanusha,
(hereinafter referred to as the child) born on 06.09.2017 was
abandoned by her biological mother in Safdarjung Hospital and the
child remained in the hospital till 20.11.2017, after which custody of
the child was transferred to the petitioner society. On 15.12.2017,
the biological mother surrendered the child before Child Welfare
Committee, Kalkaji. The applicant society produced the child before
the Child Welfare Committee and the Child Welfare Committee
retained the custody of the child with the petitioner society. The
petitioner filed an application before the Child Welfare Committee
(CWC) for getting the child declared free for adoption. After
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conducting inquiry, Child Welfare Committee, New Delhi vide
order dated 27.09.2018 declared the child free for adoption. Till
date the child has not been claimed by anyone and is free for
adoption.
4. The PAPs being desirous of adopting the child as their
daughter, on 22.10.2018 custody of the child was handed over by
the petitioner to the PAPs and since then, the child is being brought
up by the PAPs as their own child and the PAPs as well as the child
have developed a bond of love and affection with each other.
5. As further pleaded by petitioner, the PAPs have been
bringing up the child as their own child. PAPs are respectable
persons, suffering with no disease or incapacity which would be
detriment to adopting and bringing up a child. PAPs have no
interest adverse to that of the child. Petitioner is satisfied that
adoption of the child by the PAPs would be in the interest and
welfare of the child. Hence, the present petition.
6. After institution of the present petition, PAPs appeared
in person. I interacted with PAPs and recorded the testimony of the
social worker of petitioner as PW1 and that of the PAPs as RW1
and RW2. Interaction with the child was not possible since child is
aged about one and half years.
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7. In her testimony as PW1, Ms. Elcy Jolly, the social
worker of the petitioner deposed on oath the above mentioned
contents of the petition and placed on record the relevant documents
as Ex. PW1/1 to Ex. PW1/5. PAP no. 1 in his testimony as RW1
deposed on oath that both PAPs desire to adopt the child as their
daughter; that PAPs took custody of the child from petitioner on
22.10.2018 and since then they have been bringing up the child as
their daughter and have developed love and affection for her; and
that they have no interest adverse to the interest of the child. PAP
no. 1 placed on record the relevant documents as Ex. RW1/1 to Ex.
RW1/8. PAP no. 2 in her testimony as RW2 supported the
testimony of PAP no. 1.
8. 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)
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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.
9. 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.
10. 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.
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11. Section 58 of the Act 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 SAA, 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 SAA
shall give the child in preadoption foster care and shall file an
application in court for obtaining adoption order.
12. Section 61 of the Juvenile Justice Act, 2015 lays down
that before issuing an adoption order, the court shall satisfy itself
that the adoption is for welfare of the child; that due consideration
has been given to the wishes of the child, having regard to the age
and understanding of the child; that there has been no monetary
transaction or reward in consideration of the adoption, except by
way of adoption fees or service charges or child care corpus, as
contemplated by the Adoption Regulations.
13. The Specialized Adoption Agencies (SAA) derive their
existence from the recognition granted by the State Government in
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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 derecognition, as contemplated by Section 65 (4)
of the Act.
14. 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.
15. 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
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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.
16. Falling back to the present case, petitioner proved on
record the certificate of Child Welfare Committee declaring the
child free for adoption as Ex. PW1/1; Home Study Report of PAPs
as Ex. PW1/2; Child Study Report of the child as Ex. PW1/3; latest
photograph of the child as Ex. PW1/4; and copy of recognition
certificate of petitioner as Ex. PW1/5. PAP no. 1 proved on record
photocopy of Board Secondary Education Certificates of PAPs as
Ex. RW1/1 and Ex. RW1/2 respectively; photocopy of ITR of PAP
no.1 as Ex. RW1/3; photocopy of ITR of PAP no. 2 as Ex. RW1/4;
medical certificates issued by doctor of PAPs as Ex. RW1/5 and Ex.
RW1/6 respectively ; their joint photograph as Ex. RW1/7; and
Home Study Report of PAPs is Ex. RW1/8. PAP no. 2 in her
testimony as RW2 supported the testimony of PAP no. 1.
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17. Certificate Ex. PW1/1 issued by Child Welfare
Committee, Kalkaji New Delhi, declares the child legally free for
adoption. As regards welfare of the child, Home Study Report
Ex. PW1/2 reflects that PAP no. 1, born on 06.07.1976 is practicing
advocate in Calcutta High Court and his gross annual income is
Rs. 4,39,175/ whereas PAP No. 2 born on 27.11.1976 is in private
service in R.N. Tagore Hospital and her gross annual income is
Rs. 3,28,574/ and they enjoy high status and have sufficient means
of livelihood. The social worker who carried out the Home Study
Report of PAPs has recorded details of the history of both PAPs and
parental families of both PAPs, finding the said families close knit
and successful. After recording extensive details related to personal,
professional and family history of PAPs, traversing through their
social and family environment, motivation to adopt, health and
housing etc, the social worker who carried out the Home Study
Report of PAPs concluded that the PAPs are suitable to face
upbringing and education of child and they would give all their
affection, resources and capacity to help the 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 live in excellent conditions and environment,
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favourable for perfect development of a child; and PAPs have no
criminal record. Proofs of income Ex. RW1/3 and Ex. RW1/4 filed
by PAP no. 1 reflects their gross annual income to be Rs. 5,77,631/
and 3,83,893/ respectively and medical fitness certificates Ex.
RW1/5, Ex. RW1/6 of PAPs reflect that they do not suffer from any
medical ailment. Home Study Report Ex. PW1/2 coupled with
medical certificates Ex. RW1/5 and Ex. RW1/6 along with
photograph Ex. RW1/8 amply establish that PAPs are physically fit,
financially sound, mentally alert and highly motivated to adopt a
child for providing her a good upbringing.
18. As mentioned above, I personally interacted with the
PAPs. I find the PAPs physically fit, financially sound and capable
of taking care of all the needs of the child, who has been in their
care and custody since 22.10.2018 and has consequently developed
strong emotional bonding.
19. In view of above discussion, the petition is allowed and
it is directed that the child Vritika, now named Tanusha, born on
06.09.2017 be given in adoption to the PAPs namely Shri Chandra
Sekher Banerjee and his wife Smt. Paramita Banerjee with effect
from 06.02.2019. It is declared that henceforth the child Vritika,
now named Tanusha, born on 06.09.2017 is the adopted daughter of
PAPs namely Shri Chandra Sekher Banerjee and his wife Smt.
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pages
Paramita Banerjee, who have become adoptive parents of the child
henceforth. The concerned authorities shall accept date of birth of
the child as 06.09.2017.
20. 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.
21. The requisite certificate in respect of adoption of the
child bearing photographs of the 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 records.
Announced in the open court on
this 06th day of February 2019 (GIRISH KATHPALIA)
District Sessions Judge
Digitally signed South East, Saket Courts
by GIRISH New Delhi 06.02.2019 (a)
GIRISH KATHPALIA
KATHPALIA Date:
2019.02.06
15:49:37 +0530
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