Bangalore District Court Mr. Donovan Roy Hunter vs N I L on 2 November, 2018
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Cites 2 docs
the Commissions for Protection of Child Rights Act, 2005
Section 61 in The Juvenile Justice (Care and Protection of Children) Act, 2000
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Bangalore District Court
Mr. Donovan Roy Hunter vs N I L on 2 November, 2018
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 2nd day of Nov., 2018.
Misc. No.25131/2018
Petitioners:- 1. Mr. Donovan Roy Hunter,
Son of Donald Roy Hunter,
Aged about 35 years,
2. Mrs. Melissa Rose Hunter,
W/o Mr. Donovan Roy Hunter,
Aged about 35 years,
Both presently residing at 2
Eastwood Court, Oakland, CA
94611, USA.
Both represented by their Power of
attorney holder, Mr. Francis S.J.
Of Shishu Mandir, Kithiganur, K.R.
Puram, Bengaluru-560 036.
3. Shishu Mandir, Kithiganur,
K.R.Puram, Bengaluru-560 036.
Rep. by its Social Worker, Mr.
Rajkumar, K.
[By Sri. E.X.Antony-Advocate]
2 Misc. No.25131/2018
V/s
Respondents:- N I L
ORDER U/Sec. 61 OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILD) ACT, 2015. The present Petition is filed by the petitioners No.1 and 2 under Section 61 of the Juvenile Justice (Care and Protection of Child) Act, 2015, praying to pass an order declaring and/or appointing Petitioner Nos. 1 and 2 as adoptive parents of the minor female LENA born on 08.10.2017 and to accord permission to remove the said minor out of the jurisdiction of this court-out of India to US, as they are residing at US for their livelihood.
2. Further in the said petition, the 3rd Petitioner- Shishu Mandir, Kithiganur, K.R.Puram, Bengaluru, represented by its social worker, Mr. Rajkumar K. has sought for permission to give the minor female child "LENA" in adoption to the 1st and 2nd Petitioners and also to permit the said Petitioners to take away the said minor female child, from the jurisdiction of this court- out of India to US.
3. As per the directions issued by the Hon'ble Supreme Court of India in the decision reported in AIR 1986 SC 272 and in the decision delivered in the case of Laxmikanth Pande V/s Union of India, reported in AIR 1987 SC 232, notice of this petition is not published in any newspaper as well as the application of the Petitioner Nos. 1 and 2-Foreigners is accompanied with the Power of Attorney Holder infavour of Mr. Francis S.J. Social Worker, Shishu Mandira, Kithiganur, K.R.Puram, Bengaluru, is permitted to handle the case on behalf of the Petitioner Nos. 1 and 2-Foreigners, without insisting them, to keep themselves present, for giving their approval to the child to be taken in adoption inorder to avoid hardship and inconvenience to the foreign parents.
4. As per the guidelines issued by the Karnataka State Council for the Child Welfare, a report was called for, from the Scrutiny Officer, Karnataka State Council for the Child Welfare, Nandi Road extension, Bengaluru-46. The Scrutiny Officer Karnataka State Council for the Child Welfare, "Shishu Raksha" 135, 3rd Cross, Nandidurga Road, Avamahal extension, Bengaluru, has submitted the scrutiny report.
5. On enquiry, the Power of Attorney Holder of the Petitioner Nos. 1 and 2, by name Mr. Francis S.J. has been examined as PW.1 and Ex.P.1 to Ex.P.28 have been marked. One Mr. Rajkumar K. a Social Worker, working with the 3rd Petitioner is examined as PW.2 and has got marked one document as Ex.P.29.
6. Heard the arguments put-forth by the Learned Counsel for the Petitioners.
7. The following points that arise for my consideration are:
1) Whether the Proposed
Adoption is for the Welfare of the
female child 'LENA'?
2) What order?
8. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order for the following :
REASONS
9. Point No.1:- The brief facts of the case of the Petitioner Nos. 1 and 2, which lead to filing of the present petition are The Petitioner Nos.1 and 2 are American Nationals and Domiciled. They have born on 14.10.1982 and 25.06.1983 respectively. They are married to each other on 10.09.2011. Out of the said wedlock a son by name 'Connor' is born to them on 14.03.2015. The Petitioner Nos. 1 and 2 have desired to grow their family through adoption, even before their marriage itself, so after the birth of a son, they wanted to adopt a girl child with a view to have a complete family. With the said intention of adopting, the Petitioner Nos. 1 and 2, approached the Foreign Undertaking Agency-"Bay Area International Adoptions", with the adoption proposal and home study report. The Petitioner Nos. 1 and 2 are physically fit and healthy, having no symptoms of physical or mental disorder or disease or any incapacity, detrimentally affecting to have custody of and educate an adoptive child and possess a clean, social and police record, entitled to adopt a minor female child.
That the minor LENA is by sex a female and said to have been born to an unwed mother on 08.10.2017, the said unwed mother was not in a position to lookafter and bring up the said minor, therefore she voluntarily, out of her own free will, handed/Surrendered over the said minor female child to 'Shushu Mandir', Kithiganur, Bengaluru-560 036, having left no clue of her whereabouts. After the minor was kept in the home, neither the mother of the minor, nor anyone has called upon to either see, claim or enquire about the minor and thus the minor was totally abandoned. So the whereabouts of the mother of the minor, other relatives are not either known or traceable. The original Deed of Surrender executed by the mother of the said minor dt:04.11.2017 is produced alongwith the order of placement of child in an institution dt:03.11.2017 in Form No.18, is also produced.
The 3rd Petitioner made necessary application to the Child Welfare Committee, Bengaluru, to obtain a release order declaring the said minor as legally free for adoption. Since there was no objections to the discharge of the said minor, the minor would be given in adoption, the Child Welfare Committee, Bengaluru, passed an order in Form No.25 dt:20.01.2018. Thereafter the child study report together with the medical certificate were sent to the Petitioner Nos. 1 and 2 for their acceptance. The Petitioner Nos. 1 and 2 have accepted and have signed the Child Study Report. Thus, the 3rd Petitioner herein applied to CARA Delhi, for issue of no objection certificate to place the above said minor in adoption to the Petitioner Nos.1 and 2. The said CARA Delhi has issued no objection certificate on 09.08.2018. the 3rd Petitioner institution having examined the said records and having made a thorough investigation of all the relevant factors, such as the antecedents, dwelling condition, temperament, social, police and criminal records of the Petitioner Nos.1 and 2 and being satisfied with regard to good faith, competency and qualifications of Petitioner Nos. 1 and 2, in the best interest of a minor, abandoned female child LENA, have decided to give her in adoption to the Petitioner Nos.1 and 2. Thus, the Petitioner No. 3 institution has 'no objection' to declare Petitioner Nos.1 and 2 as the adoptive parents of the minor female child LENA and to accord sanction to take her, out of India to USA. Thus, prayed to allow the Petition by declaring Petitioner Nos. 1 and 2 as adoptive parent of female minor LENA and accord sanction to take her out of India to USA.
10. As per the law laid down by the Hon'ble Apex Court in Laxmikanth Pande V/s Union of India reported in AIR 1984 SC 469, every application from a foreigner desiring to adopt a child must be sponsored by a social or Child Welfare Agency recognized or licensed by the Government of that country, in which the foreigner is resident. No application by a foreigner for taking a child in adoption should be entertain by any social or welfare agency in India, working in the area of inter-country adoption or by any institution or centre or home, to which the children are committed by the Juvenile Court. This condition is imposed for three reasons; 1) it will help to reduce, if not eliminate altogether, the possibility of profiteering or trafficking in children, 2) it would be almost impossible for the Court to satisfy itself that the foreigner who wishes to take the child in adoption, would be suitable as a parent for the child, and whether he/they would be able to provide a stable and secure family life to the child and would be able to handle trans-racial trans- culture or trans-national problems likely to arise from such adoption and 3) where the application of the foreigner for taking a child in adoption is made directly without the intervention of a Social or Child Welfare Agency of that country, then there would be no authority or agency, in the country of the foreigner, who would be made responsible for supervising the progress of the child and ensuring that the child is adopted at the earliest, in accordance with law and grows up in an atmosphere warmth and affection with moral and material security assured to it. Adhering to this condition, I have carefully verified Ex.P.10-the home study report submitted by the Agency undertaking of USA by name "BAY AREA ADOPTION SERVICES INTERNATIONAL ADOPTIONS", who is also the member in good standing with the Joint Council on International children's services, NACAC, CAAA, Hague, accredited by the council on accreditation. So the first and foremost condition is fulfilled by the Petitioner Nos. 1 and 2.
11. As per the report submitted by the Scrutiny Officer, Karnataka State Council for Child Welfare, Bengaluru, it is seen that, the child has been surrendered on 04.11.2017 by an unwed mother. The child is in special need of parents. Physical examination of the child is done on 05.01.2018. Order declaring child legally free for adoption is passed vide CWC-3/B(U)/ADP.2018-19/20 dt:20.01.2018. Child is approved by the proposed adoptive parents on 30.05.2018. 'No objection' is given by CARA as per its letter bearing No.USA/2017/600/-CARA dt:09.08.2018. The particulars of prospective adoptive family is also annexed.
12. The testimony of the PW.1 and PW.2 has remained unchallenged and is in consistency with the facts narrated in the petition referred to above. The documents got exhibited on behalf of the Petitioner Nos.1 and 2 by their Power of Attorney Holder goes to show that the Petitioner Nos.1 and 2 are the permanent residents of USA, they are aged about 35 years and above. They are having a male child. As per Ex.P.5-Employment and salary verification issued by GAP.Inc, Ex.P.6-Copy of property Assessment information, Ex.P.7 Assessment returns for the year 2007, Ex.P.9-copy of Bank Statement, goes to show that the prospective parents are financially fit to look- after the affairs of the child to be adopted. As per Ex.P.10-Narration and Home Study issued by the Adoption Social Welfare MSW, Ex.P.20-Medical Examination Form, Ex.P.22-Lab report with medical examination form, goes to show that the prospective parents are physically fit to adopt the female minor child. As per Ex.P.24-Local criminal history check-slip which goes to show that the prospective parents are not having any criminal antecedents and are socially fit to adopt the female minor child. Ex.P.16-Undertaking, Ex.P.17-Letter of Undertaking, Ex.P.18-Declaration, Ex.P.19-Guardian Undertaking, goes to show that the prospective parents are morally fit to adopt the female minor child.
13. As per Regulation No.17 (1 & 2) of Chapter-4 of Adoption Regulations 2017, issued by the Ministry of Women and Child Development, the said Chapter dealing with adoption procedure for non-resident Indians, overseas citizens of India and foreign prospective adoptive parents. The said Regulations are reiterated for the sake of convenience as under:
Regulation No.17-Legal procedure:
1) The legal procedure is provided in Regulation-12, shall mutatis mutandis be followed in case of inter-country adoption under this Chapter.
2) In case of prospective adoptive parents, habitually residing abroad and wanting the specialized adoption agency to represent on their behalf as well, the application shall also be accompanied by a power of attorney infavour of the social worker or adoption incharge of the specialized adoption agency, which is processing the case and such power of attorney shall authorize a social worker, to handle the case on behalf of the prospective adoptive parents.
I have carefully gone through the procedural safe- guards suggested by the Hon'ble Apex Court in the decision delivered in the case of Laxmikanth Pandey V/s Union of India, reported in AIR 1984 SC 469 as well as in the case reported in AIR 1986 SC 272.
14. Taking in to consideration the guidelines issued by the Hon'ble Supreme Court of India in the above decisions as well as taking into consideration the Release Order, passed by the competent authority and other materials on record, I find no any impediment for giving the minor female child LENA in adoption to the Petitioner Nos.1 and 2 who are the residents of USA through their power of attorney holder the Petitioner No.3. Further I do not find any short comings on the part of the Petitioner Nos.1 and 2-the prospective adoptive parents, as to their fitness and competency to adopt the minor female child LENA, as discussed above with regard to their financially, mentally, physically, socially, morally. Thus, the Petitioner Nos. 1 and 2, are capable of taking utmost good care of minor female child LENA, if she is given in adoption to them. The Petitioner No.3, can be permitted to give the said child in adoption to the Petitioner Nos. 1 and 2 through GPA Holder and the adoption is and only is for the welfare of the minor female child. Further in the interest of the said minor child LENA and for her benefit and benevolent purpose, the Petitioner Nos.1 and 2 through their Power of Attorney Holder and the Petitioner No.3 institution are permitted to remove the said minor female child LENA out of the jurisdiction of this court, out of India to USA. Thus, for the above reasons I answer point No.1 in the Affirmative.
15. Point No.2: For the forgoing reasons, I proceed to pass the following:
ORDER The Petition filed U/Sec. 61 of the Juvenile Justice Care and Protection of Child (Act 2015), is hereby Allowed.
The Petitioner No.3 is permitted to give minor female child LENA born on 08.10.2017, in adoption to the Petitioner Nos.1 and 2.
All the three Petitioners shall execute a Registered Deed of Adoption as required by Law within a period of three months.
The Petitioner Nos. 1 and 2 are hereby permitted to take the minor female child LENA out of the jurisdiction of this court, out of India to USA, for her up-bringing, education and her establishment in the life.
The Petitioner Nos.1 and 2 shall send the progress report of the minor female child LENA together with a recent photographs through the sponsoring agency, quarterly, for the first three years and for the next three years, for further evaluation of the minor child.
A copy of this order alongwith the recent photographs of the female minor child duly attested by the Registrar, City Civil Court, MayoHall Unit, Bengaluru, be made over to the constituted for obtaining the passport, visa and other transitional documents for the child, for her safe journey to USA, to the viz., # 2 Eastwood Court, Oakland, CA and 2.
(Dictated to the judgment-writer, transcribed by her and then corrected and pronounced in open court this the 2nd day of Nov., 2018) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, (CCH-73) Bengaluru.
ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PETITIONER: PW.1: Mr. Francis S.J.
PW.2: Mr. Rajkumar K.
LIST OF EXHIBITS MARKED FOR THE PETITIONER: Ex.P.1: General Power of Attorney Ex.P.2: Copy of certificate issued by the County of San Francisco alongwith Apostille issued by the Secretary of the State.
Ex.P.3 : Copy of certificate of live birth of Donovan and Melissa issued by the County of San Francisco alongwith Apostille issued by the Secretary of the State. Ex.P.4 : Copy of license and certificate of marriage issued by the City and County of San Francisco bearing registration No.4201138005327 alongwith Apostille. Ex.P.5 : Employment and salary verification issued by GAP Inc alongwith Apostille.
Ex.P.6: Copy of property assessment information alongwith 2 assessor maps with Apostille.
Ex.P.7: Assessment returned for the year 2007 of Donovan R. Hunter and Melisha R. Hunter alongwith Apostille. Ex.P.8: Statement and application given by Melisha Huter alongwith Apostille.
Ex.P.9: Copy of Bank statement of Melisha Huter for the month of Feb. 2018, March 2018, April 2018, with Apostille. Ex.P.10: Narration and Home Study issued by the Adoption Social Welfare MSW.
Ex.P.11: Copy of recommendation alongwith Apostille. Ex.P.12: Copy of physiological testing report alongwith Apostille Ex.P.13: Letter of recommendation alongwith Apostille Ex.P.14: Physiological testing report alongwith Apostille Ex.P.15: Acknowledgement alongwith Apostille Ex.P.16: Undertaking alongwith Apostille Ex.P.17: Letter of undertaking alongwith Apostille Ex.P.18: Declaration alongwith Apostille Ex.P.19: Guardian Undertaking Ex.P.20: Medical Examination form alongwith Apostille Ex.P.21: Acknowledgement alongwith Apostille Ex.P.22: Lab report with medical examination form. Ex.P.23: Acknowledgment coupled with lab report, child medical report with adoption application alongwith Apostille.
Ex.P.24-Local criminal history check-slip of Donovan hunter and Melisha Hunter alongwith Apostille. Ex.P.25: Letter dt:28.09.2016 coupled with acknowledgement alongwith Apostille Ex.P.26: Letter dt:22.09.2016 coupled with acknowledgment alongwith Apostille Ex.P.27: Certificate issued by the custodian of documents with letter dt.24.08.2016 coupled with acknowledgement and form No.24,18 and 25 alongwith Apostille. Ex.P.28: Child study report with medical examination report, no objection certificate alongwith apostille - Eight photographs.
LIST OF WITNESSES EXAMINED FOR THE RESPONDENTS:
NIL LIST OF EXHIBITS MARKED FOR THE RESPONDENTS:
NIL [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)