Andhra Pradesh High Court - Amravati

Riva Giampietro, vs The State Of Andhra Pradesh, on 10 November, 2021

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                                                                                 KVL, J
                                                                   WP No.26052 of 2021


               HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

                        Writ Petition No.26052 of 2021

ORDER:

This writ petition is filed 'to declare the action of the respondents in

unreasonably delaying and not disposing of the petitioners' case to adopt

the minor child 'Yesu Babu' within the time-limits prescribed in the

Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the

Act') and the Adoption Regulations, 2017 (for short 'Regulations 2017'), as

illegal and arbitrary and a consequential direction to the 5th respondent to

expeditiously number, process and dispose of the petitioners' Adoption OP

filed/received on 26.02.2021 along with all related applications, petitions

etc..'

Case of the petitioners is that, they are the citizens of Italy and are

husband and wife; as they could not conceive a child naturally, they have

adopted a female child from India in April, 2016 when the child was seven

years old; as they wanted to adopt one more child, they have submitted an

application to the Italian authorities along with reports and other

documents, such as Home Study report (HSR), their psychological evaluation

and personological evaluation, commitment for adoption, third party

opinions/affidavits etc. and thereafter, they have filed an application

before the Juvenile Court of Milan, Italy with No.227/2018 A1; the said

Italian Court was pleased to pass a decree dated 15.05.2019 declaring that

the petitioners are suitable to adopt a single foreign minor child and that

the adoption process must be initiated within a period of one year from the

date of decree; pursuant to the said decree, the "Association Mehala-Child

and Family', which is the authorised foreign adoption agency (AFAA) has

registered them in the Child Adoption Resource Information and Guidance

System (CARINGS) portal with Registration No.EITA201993067 and further

KVL, J WP No.26052 of 2021

recommended the petitioners to the Indian Authorities for the purpose of

adopting a child; the 2nd respondent-CARA has found the petitioners eligible

under Section 57 of the Act and Regulation 5 of the Regulations, 2017 and

the said AFAA has recommended a child by name 'Yesu Babu' through

CARINGS portal for adoption; petitioners accepted the recommendation by

signing and returning the Child Study Report and the child's medical

examination report on 26.06.2020 sent by the Indian Authorities; the said

child is an abandoned child, deserted in infancy by his biological parents

and referred to the Child Welfare Committee in the year 2015; the child

was admitted to the 4th respondent, vide order dated 13.10.2015 under

Section 38 of the Act; the child is a child with special needs and his psycho

diagnostic report dated 11.06.2019 states that he was 'not able to

understand instructions', 'not able to sit at one place' and 'not able to

speak age appropriately'; recommendation was made to the speech therapy

and for behaviour therapy; the District Child Protection Unit and the Child

Care Institution have submitted a declaration to the effect that they have

made restoration efforts, to find the biological parents as required under

Section 40(1) of the Act, but nobody approached them claiming to be

biological parents; consequently, the Child Welfare Committee has issued a

certificate dated 26.04.2019 declaring that the child 'Yesu Babu' is legally

free for adoption and he was registered in the CARINGS portal with

No.AP40SAA-0115 for adoption under Section 56(1) of the Act; the 2nd

respondent-CARA has given no objection certificate No.ITA/2019/659-CARA

dated 05.08.2020 under the Adoption Regulations, 2017 in favour of the

proposed adoption.

As the petitioners who are prospective adoptive parents have

satisfied all the conditions under Section 59 of the Act and other Indian laws

and regulations, the 4th respondent, who is the recognised specialised

adoption agency under Section 65 of the Act and the 3rd respondent, have

KVL, J WP No.26052 of 2021

together filed an adoption OP before the Judge, Family Court, Vijayawada

and the same was stamped on 26.02.2021; petitioners were joined as the

'prospective adoptive parents' in the said AOP; the 2nd respondent and the

CCI have also filed several other petitions/applications, such as an affidavit

under Section 26(2) of the CPC by the 3rd respondent, petition under Order

V Rule 3 CPC requesting for issuance of summons to the petitioners so as to

enable them to apply for an Indian visa etc. and all the applications were

stamped by the 5th respondent's Superintendent as 'received'; but the

Superintendent has been repeatedly returning the documents filed by

respondents 3 and 4 with unreasonable objections; in the month of April,

2020, it was returned with an objection that 'no physical appearance till

01.05.2021 due to COVID-19 pandemic'; but as per the decision of the

Hon'ble Supreme Court in 'Laxmi Kant Pandey vs. Union of India1' insistence

on the physical appearance of the parents is unnecessary; petitioners again

arrived in India on 21.10.2021 and planned to stay here until mid-November

with the hope that the Family Court may process their application, which is

pending since February, 2021; petitioners were informed that the Judge of

the Family Court was on leave till 03.11.2021 and that the Superintendent

of the 5th respondent Court again took an objection on 23.10.2021 stating

that 'document No.13 has to be filed, whereas , petitioners have filed the

same in the month of February itself and the 5th respondent has stamped it

as 'received' on 26.02.2021; the prospective adoptive parents have been

put to lot of inconvenience and agony and the prospective adoptee child is

also being subjected to confusion and uncertainty. Hence the writ petition.

Learned senior counsel, Sri K.Hemandranath Reddy, appearing on

behalf of Sri Ch.Madhava Raman, learned counsel for the petitioner,

submits that the Act 2015 stipulates specific time frame for adoption

process and the authorities concerned shall track the progress of the

1985 Supp SCC 701

KVL, J WP No.26052 of 2021

adoption case and intervene wherever necessary. He relies upon sub-section

(2) of Section 62 of the Act and submits that the specialised adoption

agency shall ensure that the adoption case is disposed of within four months

from the date of receipt of application. He also relies upon Rule 29(7) (c) of

Regulations 2017 to the same effect and submits that the present adoption

case has been pending for one year and five months after the 2nd

respondent-CARA has found the petitioners eligible under Section 57 of the

Act and accepting the recommendation for adoption of Yesu Babu on

26.06.2020. He also relies upon Section 61(2) of the Act and submits that

the adoption case shall be disposed of by the Court within a period of two

months from the date of filing and that the adoption OP is not even

numbered for the last eight months.

Learned Assistant Government Pleader appearing for Women

Development and Child Welfare, passed on the written instructions of the

Assistant Project Director, Women & Child Welfare Department,

Vijayawada.

As seen from the said instructions, the adoption OP was presented

before the Judge, Family Court, Vijayawada on 26.02.2021, it was returned

on 16.03.2021 and it was re-submitted on 30.03.2021, again it was returned

on 10.04.2021 stating that there is no physical appearance till 01.05.2021

due to pandemic; again the same was resubmitted on 17.04.2021 and it was

returned on 01.05.2021; again it was resubmitted on 22.06.2021, again it

was returned on 06.07.2021; again it was resubmitted on 13.09.2021, again

it was returned on 16.10.2021 and on the same day, it was resubmitted;

again it was returned on 23.10.2021 and it was resubmitted on 26.10.2021;

again it was returned on 01.11.2021, again it was resubmitted on

09.11.2021. It is also stated that the Department has made number of

KVL, J WP No.26052 of 2021

efforts to get the adoption OP numbered and no negligence has been shown

at any stage.

The Hon'ble Supreme Court in 'Laxmi Kant Pandey vs Union of India2'

held as follows:

It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop.

The great poet Milton put it admirably when he said : "Child shows the man as morning shows the day" and the Study Team on Social Welfare said much to the same effect when it observed that "the physical and mental health of the nation is determined largely by the manner in which it is shaped in the early stages". The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fulness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique mental immaturity and incapacity to look-after themselves. That is why there is a growing realisation in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire self-confidence and self-respect and a balanced view of life with full appreciation and realisation of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process."

It is well known fact that most of the adoptive parents are adverse to

adopt a handicapped child and the majority of abandoned, destitute or

orphan girls and handicapped children have very little possibility of finding

(1984) 2 SCC 244

KVL, J WP No.26052 of 2021

adoptive parents within the country and their future lies only in adoption by

foreign parents.

As seen from the facts of the present case, petitioners are willing to

adopt a child with special needs and are making efforts for the last eight

months in that regard. Procedural delay should not hold back the children

being taken in adoption. It is always beneficial to the child to be adopted

before he/she attain the age of understanding. If the child is young, it is

always easier for the child to get assimilated and integrated in the new

environment.

The Hon'ble Supreme Court in Laxmi Kant Pandey's case (1 supra),

held as follows:

"This insistence on the foreign parents coming down to India for giving their approval to the child to be taken in (in) adoption, it was pointed out, in causing considerable hardship and inconvenience to the foreign parents, sometimes leading to the unfortunate situation that the foreign parents who are unable to come down to India might give up the idea of taking the child in adoption. There is considerable force in this argument urged on behalf of the social and child welfare agencies. It is obvious that foreign parents who belong to the middle class group would find it difficult to come down to India for the purpose of seeing the child. In the first place, it would impose on them a certain amount of financial burden which may be irksome and sometimes, untolerable and secondly, it would be difficult for them to leave their place of work for the purpose of coming down to India, because they may not be able to get leave form their employer and if they have their own natural children, it may be difficult for them to leave their children behind by reason of there being no one to care of them. The Court dealing with an application for appointment of foreign parents as guardian need not therefore insist on the foreign parents or even one of them coming down to India for the purpose of approving the child. We are told that the Courts sometimes insist on the foreign parents coming down to India for the purpose of seeing the child where the child is an older or handicapped child. But even in such cases it is not necessary to require the foreign parents to come down to India, because a complete dossier of the child

KVL, J WP No.26052 of 2021

consisting of photographs, detailed medical report, child study report and other relevant particulars is always forwarded to the sponsoring social and child welfare agency in the foreign country and it is after careful consideration of this dossier and a full and detailed discussion under the sponsoring social and child welfare agency that the foreign parents decide to accept the child to be taken in adoption and proceed further in the matter through the sponsoring social or child welfare agency. We would therefore suggest that, as far as possible, the foreign parents or even one of them need not be required to come down to India for the purpose of approving the child. Otherwise many foreign parents desiring to adopt an older or handicapped child might be deterred from doing so and such children who are ordinarily not favoured for adoption by Indian parents would be left without the warmth of family life."

Section 62 of the Act, deals with additional procedural requirements

and documentation. Sub-Section (2) of Section 62 reads as follows:

"The specialised adoption agency shall ensure that the adoption case of prospective adoptive parents is disposed of within four months from the date of receipt of application and the authorised foreign adoption agency, Authority and State Agency shall track the progress of the adoption case and intervene wherever necessary, so as to ensure that the time line is adhered to."

As seen from the said provision, the specialised adoption agency shall

ensure that the adoption case of prospective adoptive parents, is to be

disposed of within four months from the date of receipt of application and

the authorised foreign adoption agency and State agency shall track the

progress of the adoption case and intervene wherever necessary so as to

ensure that the time line is adhered to.

Similarly, Rule 29(7) (c) of the Adoption Regulations, 2017 is also to

the same effect. Section 61 of the Act, 2015, deals with the Court

procedure and penalty against payment in consideration of adoption.

According to sub-section (2) of Section 61, 'the adoption proceedings shall

be held in camera and the case shall be disposed of by the Court within a

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period of two months from the date of filing'. The word used in the said

sub-section is 'shall'.

Section 65 of the Act, deals with specialised adoption agencies. Sub-

section (4) of Section 65 of the Act, reads as follows:

"In case any Specialised Adoption Agency is in default in taking necessary steps on its part as provided in this Act or in the adoption regulations framed by the Authority, for getting an orphan or abandoned or surrendered child legally free for adoption from the Committee or in completing the home study report of the prospective adoptive parents or in obtaining adoption order from the court within the stipulated time, such Specialised Adoption Agency shall be punishable with a fine which may extend up to fifty thousand rupees and in case of repeated default, the recognition of the Specialised Adoption Agency shall be withdrawn by the State Government."

The Delhi High Court in a decision in 'PKH vs. Central Adoption

Resource Authority3 ' observed that the delay in adoption means that the

minor has to live with uncertainty and insecurity.

The Hon'ble Supreme Court in Lakshmi Kant Pandey's case (2 supra),

held as follows:

"We must emphasize strongly that the entire procedure which we have indicated above including preparation of child study report, making of necessary enquiries and taking of requisite steps leading upto the filing of an application for guardianship of the child proposed to be given in adoption, must be completed expeditiously so that the child does not have to remain in the care and custody of a social or child welfare agency without the warmth and affection of family life, longer than is absolutely necessary.

The Hon'ble Supreme Court in Lakshmi Kant Pandey's case (1 supra),

held as follows:

"Some social and child welfare agencies made a complaint before us that the proceedings for appointment of a prospective adoptive

2016 SCC Online Del.3918

KVL, J WP No.26052 of 2021

parent as guardian of the child drag on for months and months in some district Courts and almost invariably they take not less than five to six months. We do not know whether this is true, but if it is, we must express our strong disapproval of such delay in disposal of the proceedings for appointment of guardian. We wish to impress upon the district Courts that proceedings for appointment of guardian of the child with a view to its eventual adoption, must be disposed of at the earliest and in any event not later than two months from the date of filing of the application. We would request the High Court to call for returns from the district Courts within their respective jurisdiction showing every two months as to how many applications for appointment of guardian are pending, when they were filed and if more than two months have passed since the date of their filing, when they have not been disposed of up to the date of the return. If any application for guardianship is not disposed of by the district Courts within a period of two months and there is no satisfactory explanation, the High Courts must take a serious view of the matter. We were also informed that some district Courts are treating applications for guardianship in a lackadaisical manner and are not scrupulously carrying out the directions given by us in our judgment. This defiance by the district Courts of the directions given by us should not be tolerated by the High Courts and we would request the High Courts to exercise proper vigilance in this behalf."

The Hon'ble Supreme Court 'Laxmi Kant Pandey vs. Union of India4'

held as follows:

"We would ask the High Courts to all for monthly reports from the Juvenile Courts stating as to how many applications for release orders, that is, for declaring children abandoned or destitute, are pending before each Juvenile Court, when they were filed and if they have not been disposed of within one month, what is the reason for the delay. We are very anxious that in respect of abandoned or destitute children, there should be no undue delay in offering them for adoption to Indian parents and, failing Indian parents, to foreign parents, because it is absolutely essential that such children should be able to secure love and affection of adoptive parents at the earliest. Indeed, nothing can take the place of love and affection of parents and every effort must therefore be made to

(1987) 1 SCC 66

KVL, J WP No.26052 of 2021

see that no procedural delays hold up the process of such children being taken in adoption."

In most of the adoption cases, the paper work is done by other

agencies involved and hence, there should not be any delay in disposal of

these matters.

In the facts and circumstances, in the light of the provisions under

the Act 2015 and the Adoption Regulations, 2017 and in view of the law laid

down by the Hon'ble Supreme Court referred to supra, respondents 2 to 5

are directed to bestow their attention and see that the adoption OP filed on

26.02.2021 is numbered, if the same is otherwise in order and the 5th

respondent is directed to dispose of the same, strictly in accordance with

law, as expeditiously as possible, preferably within a period of three (3)

weeks from the date of receipt of a copy of this order. It is noticed that the

objections to the OP are not intimated at the first instance in one go. It is