Delhi High Court
The Tibetan Childrens Village ... vs Karma Lama & Anr on 18 November, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 11.11.2016
Judgment delivered on: 18.11.2016.
+ CM(M) 579/2015 & C.M. Nos.11006/2015, 31084/2015, 31085/2015,
2550/2016 & 29897/2016
THE TIBETAN CHILDRENS VILLAGE SCHOOL
..... Petitioner
Through Mr. Jagdeep Kishore, Mr. Naresh
Mathur and Ms. Rekha Gupta, Advs.
versus
KARMA LAMA & ANR
..... Respondents
Through Mr. Giriraj Subramanium, Mr.
Simarpal Singh Sawhney and
Mr.Sidhant Krishan Singh, Advs for
R-1 & R-2.
Mr. Tenzing Tsering and Mr. Tenzin
Namgyal, Advs for R-3.
Mr. Kapil Kumar Nim, Adv for R-4.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 The petitioner before this Court is Tibetan Children‟s Village School
(TCV). It is functional from upper Dharamshala, Himachal Pradesh. This
petition has been filed through its General Secretary.
2 This petition concerns the adoption rights of a minor child namely
Master Tenzin Tsering (in short „Tenzin‟). The averments in the writ
petition disclose that a lady namely Tashi Choedon brought with her a
tibetan male child namely Tenzin when he was 1- ½ years old to the TCV.
She had brought him from Nepal. As per the information furnished to the
TCV, the child was born in Nepal on 03.03.2007. His natural and biological
parents were not known. Tenzin was enrolled in the petitioner school on
13.08.2008.
3 Respondents No. 1 & 2 are Karma Lama and Paola Pivi. They are
permanent residents of United States. At the time of filing of this petition,
they were residing temporarily in Northern India. Respondents No.1 & 2
approached the petitioner for sponsoring the education of Master Tenzin.
The petitioner accepted the sponsorship offer and received $480 for a period
of one year as sponsorship charges from respondents No.1 & 2. This was in
August, 2012. It was made clear to respondents No.1 & 2 that they could
meet the child periodically and they could also take the child out for winter
vacations which fell between 25.12.2012 and 24.02.2013. The condition was
that the child had to be brought back before the end of the winter vacation or
earlier, if need be.
4 In the second week of January, 2013, Tashi Choedon came to the
petitioner institute with a request to take the child back to New Delhi for a
possible relocation in France. The petitioner informed respondents No.1 & 2
asking them to bring back Master Tenzin on 13.01.2013. Respondents No.1
& 2 visited the school of the petitioner on 13.01.2013. They were un-
accompanied with Master Tenzin. They agreed to bring back Master Tenzin
to the petitioner school but thereafter they disappeared. They in fact lived at
Dharamshala and shifted to New Delhi without informing their whereabouts
to the petitioner.
5 On 17.01.2013, the petitioner learnt that respondents No.1 & 2 had
approached the National Commission for Protection of Child Rights
(NCPCR) and had obtained an ex-parte order restraining the child from
being forcibly taken to France or any place outside India.
6 On 22.01.2013, respondents No.1 & 2 filed a guardianship petition
under Sections 7, 8, 9, 10 & 11 of the Guardians and Wards Act, 1890
(hereinafter referred to as the Act of 1890). They wished to obtain the
custody of the minor child. This petition was filed before the Senior Civil
Judge, Senior Division, Dharamshala. The High Court of Himachal Pradesh
transferred the case to the Court of Senior Civil Judge, Shimla who on
11.12.2014 while exercising the powers of the District Judge appointed
respondent No.1 as the guardian of Master Tenzin. Tashi Choedon had been
impleaded as respondent No.4 being the adoptive mother of the minor but
before she could be heard, her name was deleted and thus she did not have
the opportunity of contesting the proceedings. The petitioner had however
contested the petition.
7 The petitioner aggrieved by the order passed by the Guardian Court
(11.12.2014) preferred an appeal before the High Court of Himachal Pradesh
at Shimla. This appeal was taken up for hearing after its admission on
07.05.2015. Respondents No. 1 & 2 were also served. The petitioner had in
fact moved an application on 04.06.2015 before the High Court of Himachal
Pradesh seeking a direction from restraining respondents No.1 & 2 from
removing the child outside India. This appeal was however subsequently
withdrawn on 21.08.2015 by the petitioner.
8 The petitioner, thereafter, learnt that respondents No.1 & 2 had
approached the Principal Judge, South-East, Family Court Saket and in
proceedings under Section 9 (4) of the Hindu Adoption and Maintenance Act
(hereinafter referred to as the „HAMA‟), they obtained a decree dated
23.05.2015 whereby respondent No.1 was appointed as guardian of minor
Tenzin.
9 Submission being that this order was clearly without jurisdiction as the
Family Court had assumed an illegal jurisdiction; he could not have passed
any order under Section 9 (4) of the HAMA appointing respondent No.1 as
the adopted father of the minor; respondents No.1 & 2 were the only parties;
the guidelines for determining adoption of foreign nationals had been
ignored; the Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as the „JJ Act, 2000‟) as also the guidelines issued by
the Ministry of Women and Child Development, 2011 (hereinafter referred
to as the „CARA‟) had been ignored; the Hague Convention on Protection of
Children and Cooperation in respect of Inter-Country Adoption, 1993
(hereinafter referred to as the Hague Convention) was also taken into
account.
10 This petition has been filed seeking to lay a challenge to the order
passed by the Family Court dated 23.05.2015. The prayer is that respondents
No.1 & 2 should be restrained from removing Master Tenzin from the
country.
11 In the course of these proceedings, an application had been filed by
respondents No.1 & 2 seeking permission of this Court to permit Master
Tenzin to temporarily travel with them to the United States. This application
was dismissed on 26.08.2015. The Bench of this Court was of the view that
prima-facie the procedure prescribed for adoption as contained in Section 41
of the JJ Act, 2000 read with Section 33 of the Juvenile Justice (Care and
Protection Rules, 2007) (hereinafter referred to as the JJ Rules) had been
ignored; CARA guidelines had also not been adhered to; the same being
prima-facie mandatory could not have been bypassed. While dismissing the
application, the Court had also made an observation that the adoption of
minor child Tenzin by respondents No.1 & 2 appears to be in the welfare of
the minor child. However the aforenoted permission as sought for by
respondents No.1 & 2 was not granted to them.
12 On 22.09.2016, C.M. No.22106/2016 had been filed by the petitioner
seeking impleadment of two persons i.e. Central Tibetan Administration (in
exile) (hereinafter referred to as the CTA) and CARA. This application was
not opposed by the respondents. The aforenoted respondents i.e. CTA and
CARA were impleaded as parties.
13 Apart from the response of respondents No.1 & 2, the response of the
newly impleaded respondents i.e. CTA and CARA is also on record.
14 On behalf of respondents No.1 & 2 it is stated that the impugned order
(23.05.2015) passed by the Family Court is a legal order; it suffers from no
infirmity.
15 Section 7 of the Family Court Act, 1994 empowers the Family Court
to pass such an order under Section 9 (4). The present case does not fall
within the CARA guidelines. Learned counsel for the respondents has placed
reliance upon a judgment of the Apex Court reported as 2004 (1) SCC 382
Smt. Anokha Vs. State of Rajasthan as also another judgment of a Bench of
this Court in W.P. (C) No.5718/2015 Parminder Kaur Hunda Vs. Central
Adoption Resource Authority through its Secretary (PKH). Submission
being that the case of the petitioner qualifies as a case of an „inter-country
direct adoption‟; the CARA Guidelines do not have to be followed. In the
alternate, it is pointed out that after the Senior Civil Judge, Dharamshala had
passed an order under the Act of 1890 directing them to seek adoption under
the CARA guidelines and the adoption law prevalent in the United States,
the respondents had approached CARA but CARA by its communication
dated 09.03.2015 had informed them that since the CTA is fully functional, it
was appropriate for the respondents to seek their assistance. Submission
being that CARA had refused to entertain the case of the respondents. The
respondents had thereafter approached the CTA. The CTA is however
neither recognized by the US authorities and nor the Italian Embassy;
respondent No.1 being a US citizen and respondent No.2 being an Italian
citizen; it would have been a futile path to have approached the CTA. The
communications in this regard from the US Embassy and the Italian
Embassy dated 16.06.2015 and 23.02.2015 have been relied upon. The
Hague Convention was also not applicable. The only course available to the
answering respondents was to approach the Family Court under Section 9 (4)
of the Family Court Act. The minor child having lived with his adoptive
parents (respondents No.1 & 2) for the last three years, the Hindu Adoption
Law i.e. the HAMA would be applicable. Submission being that the
respondents are running from pillar to post to legalize the adoption of Master
Tenzin who has been living with them since the last more than three years (at
the time of filing response to the present petition); the order of the learned
Family Court does not suffer from any infirmity.
16 The response of the newly impleaded respondents i.e. CTA and
CARA is also on record.
17 The affidavit of CARA filed through its Deputy Director states that
respondents No.1 & 2 had approached their Department with their
application dated 17.05.2016 for a re-consideration of its decision regarding
the NOC in their case; on the submission of the requisite documents on
25.07.2016, a NOC had been issued by CARA for the move of the adopted
child to United States to habitually reside with his adopted parents i.e.
respondents No.1 & 2. Relevant would it be to note that earlier CARA had
not issued an NOC to respondents No.1 & 2 but had thereafter reconsidered
the case of respondents No.1 & 2 and had issued an NOC to them on
26.07.2016.
18 The response of CTA is also on record. The affidavit has been filed
through the Secretary of the office of the Bureau of his Holiness the Dalai
Lama, CTA having its office at Lajpat Nagar. In this affidavit, it is stated
that the present controversy appears to be between the petitioner and
respondents No.1 & 2; neither of them at any point of time had approached
the CTA seeking consent or permission for adoption of Master Tenzin.
The stand of CTA being that they are not necessary parties in these
proceedings.
19 The counter affidavit of the other respondents is not relevant for the
purposes of deciding this petition.
20 A rejoinder had been filed by the petitioner to the aforenoted stand of
the respondents. The averments made in the writ petition have been
reiterated and the defence sought to be set up by the respondents has been
refuted.
21 On behalf of the petitioner, arguments have been addressed by learned
counsel Mr. Jagdeep Kishore assisted by Mr. Mathur, Advocate. The
foremost submission of the petitioner is that the impugned order suffers from
an illegality for the reason that the Family Court was not vested with the
jurisdiction to deal with the case of a child who was admittedly a Nepalese
by birth. Section 7 of the Family Court Act, 1984 has been highlighted.
Reliance has been placed upon a judgment of High Court of Bombay as also
two judgments of the Bench of the Kerala High Court reported as Foreign
Adoption Petition No.100/2009 (dated 19.12.2009) as also 1 (1998) DMC
266 Vinod Krishnan Vs. Missionaries of Charity delivered on 03.11.1997 as
also a third judgment of the Kerala Bench reported as 2008 (1) CARLJ 647
Andrew Mendis Vs. State of Karla. Submission being that the jurisdiction to
pass an order giving a child in adoption vests with the District Court or the
High Court; a Family Court cannot deal with matters of adoption. This
position at law has been ignored. The order passed by the Family Court on
23.05.2015 under Section 9 (4) of the HAMA being devoid of jurisdiction
was an order non-est. Respondent No. 1 & 2 had not complied with the
directions of the Senior Civil Judge, Shimla and have by-passed the
procedure of obtaining an NOC from CARA which was a mandate upon
them; the guidelines of the Hague Convention have been given a go-bye.
Attention has been drawn to Articles 5 & 17 of the Hague Convention.
Additional submission being that in the light of the judgment reported as
1984 (2) SCC 244 Laxmi Kant Pandey Vs. Union of India efforts should
have been made to first give the child to a local family in India; this process
had not been followed. Respondent No. 1 & 2 had taken upon themselves to
adopt Master Tenzin without there being any effort made to first offer the
child to a local Indian family India and only when this situation is negatived
can a foreign couple seek an adoption. Learned counsel for the petitioner
submits that the JJ Rules, 2007 would be applicable as the Act of the year
2015 in the absence of the formal Rules having been formulated cannot be
implemented; these Rules have been flouted. Attention has also been drawn
to Rule 52 & Rule 53 of the 2015 of the CARA Guidelines; submission
being that the CARA Guidelines of 2015 would be applicable; however
CARA having reviewed its decision in granting an NOC ex-post facto to
respondent No. 1 & 2 on 26.07.2016 has gone back on its own conditions.
The impugned order cannot be sustained.
22 These submissions have been countered. Learned counsel for
respondent No. 1 & 2 in addition to his stand as adopted in his counter
affidavit submits that there is a distinction which he would like to draw
between the term „inter-country adoption‟ and „inter-country direct
adoption‟. His case would fall in the second category i.e. an „inter-country
direct adoption‟. Reliance has been placed upon a judgment passed by a
Bench of this Court in PKH (supra). Submission being that this term was
coined in this judgment. The learned Single Judge had relied upon the
judgment in Smt. Anokha (supra) to hold that where there is a case of a direct
adoption under the provisions of HAMA, the CARA guidelines do not have
to be followed; submission being that in that case where the adoption was
made by a Canadian couple from an Indian widow the Court had held that
there being no intermediary between the parties, the provisions of either the
CARA guidelines or the Hague Convention having to be adhered to was not
a mandate. Submission being that his case also stands on the same footing.
Respondents No. 1 & 2 had admittedly been appointed as lawful guardians
of Master Tenzin vide an order of the Guardian Court on 11.12.2014. This
order was never challenged; it had become final; since the child had a legal
guardian he no longer remained an orphan, abandoned or a surrendered
child; CARA Guidelines would thus not apply. Section 9 (4) of the HAMA
adequately permits a guardian of any child to give in adoption with the
previous permission of the Court to any person including the guardian
himself; this has been done so in the instant case. The order suffers from no
infirmity. Learned counsel for respondents No. 1 & 2 additionally submits
that the submission of the petitioner that the child was in illegal custody of
respondents No. 1 & 2 is clearly belied from their own documents and
evidence on record. Submission being that even as per the case of the
petitioner, Master Tenzin had been permitted by the petitioner to travel
between December, 2014 up to January, 2015 with respondent No. 1 & 2;
respondent No. 1 & 2 were admittedly sponsors of the child; a sponsor is
never permitted to take the child out station unless the idea was to give the
child in formal adoption to respondents No. 1 & 2 which was the
undertaking and promise of the petitioner to respondents No. 1 & 2.
Submission being that on 13.01.2013, on the request of the petitioner,
respondents No. 1 & 2 had appeared before the petitioner and had a long
drawn out meeting with them. On 17.01.2013, respondents No. 1 & 2 had
obtained an ex-parte order from the NCPCR whereby no coercive
steps/police action was to be taken against them qua the custody of the child.
On 04.02.2013, respondents No. 1 & 2 had approached the Civil Court and
had obtained an interim custody order qua Master Tenzin in their favour up
to 15.02.2013 which order continued up to 01.08.2013 when on 01.08.2013
the Civil Judge at Dharamshala had directed respondent No. 1 & 2 to
handover the custody of the child to the petitioner by 01.09.2013. This order
was assailed before the High Court of Shimla. It was stayed by the High
Court on 08.08.2013; submission being that on 04.09.2013, this petition was
disposed of by the High Court with a direction to the learned Civil Judge,
Shimla to allow respondent No. 1 & 2 to retain the custody of Master Tenzin
till the disposal of the petition pending before it. Submission on this count
being that the stand of the petitioner that respondent No. 1 & 2 were having
an illegal custody of the child is thus belied; they initially had permissive
custody of Master Tenzin which thereafter got converted into a lawful
custody. Learned counsel for respondent No. 1 & 2 has placed strong
reliance upon the judgment delivered by the Guardian Court at Dharamshala
on 11.12.2014; submission being that this was after a long trial wherein 20
witnesses had been examined by the respective parties and 40 articles of
evidence had been exhibited. The Court had come to the conclusion that the
interest and welfare of the child demanded that the child should remain with
respondent No. 1 & 2; this was after having a meeting with the child in the
Chambers of the Judge. At the cost of repetition, learned counsel for
respondent No. 1 & 2 argues that the order dated 11.12.2014 directing
respondents No.1 & 2 to comply with the CARA Guidelines and other inter-
country laws could not be complied with for the reason that on his
approaching the CARA, he was addressed a communication dated
09.03.2015 (by CARA) asking him to approach the CTA; the CTA is neither
recognized by the US Embassy and nor by the Italian Embassy of whom
respondent No. 1 & 2 are citizens. Respondent No. 1 & 2 thus had no other
remedy but to approach the Family Court under Section 9 (4) of the HAMA.
Impugned order in the peculiar facts of this case does not suffer from any
infirmity. Submission being reiterated that this argument is in the alternate;
his first submission is that since this is a case of an inter-country direct
adoption, guidelines of CARA did not have to be followed. Even otherwise,
CARA has now given an NOC on 26.07.2016. Even presuming that on ex-
post facto approval/no objection has been granted, the petitioner should have
no quarrel on this issue as even as per the case of the petitioner the child
whose interest and welfare is the primary concern and the aim and object of
this Court while dealing with this petition it has to be noted that Master
Tenzin is happy and comfortably placed in the hands of respondents No. 1 &
2. This fact is not disputed by the petitioner and on repeated questions put
by the Court on this score, they admit this position.
23 In rejoinder, learned counsel for the petitioner submits that respondent
No. 1 & 2 have necessarily to follow the CARA Guidelines which have not
been adhered to; CARA has ignored its own objects; the Hague Convention
has also been given go-bye.
24 Arguments have been heard. Record has been perused.
25 The facts of the case evidence that Master Tenzin had been brought by
Tashi Choedon to the TCV from Nepal; his parentage and the details of his
biological parents were not known. Tashi Choedon had enrolled Master
Tenzin in the TCV on 13.08.2008. He was just about 1- ½ years of age at
that point of time.
26 The definition of "orphan" as contained in Section 2 (k) of the JJ
Rules, 2009 reads herein as under:-
„Orphan‟ means a child who is without parents or willing and capable
legal or natural guardian.‟
27 The facts as noted supra qua Master Tenzin persuades this Court to
hold that Master Tenzin at the time of his admission in the petitioner school
fell within the definition of an „orphan‟.
28 This Court is of the view that the JJ Act, 2000 would be applicable.
The Rules of 2007 which came into effect on 26.10.2007 would be the
prevailing rules as the incident relates to the period 2008.
29 It is an admitted fact that respondents No. 1 & 2 (permanent residents
of United States) had approached the petitioner for sponsoring the education
of Master Tenzin. They had paid 480 $ for a period of one year. The
petitioner had permitted respondents No. 1 & 2 to take Master Tenzin out
during his winter vacations between 25.12.2012 to 24.02.2013 i.e. for a
period of almost two months. It is also an admitted fact that pursuant to
Tashi Choedon having approached the TCV in January, 2013, a request had
been made by the petitioner school to respondents No. 1 & 2 to bring back
Master Tenzin to the school. Respondents No. 1 & 2 had gone to the
petitioner school on 13.01.2013. Master Tenzin was not with them. The
request of the petitioner was that Master Tenzin be returned to the petitioner
school as Tashi Choedon wanted to take him to France.
30 On 17.01.2013, an order was passed by the NCPCR. This was on a
complaint made by respondents No. 1 & 2 regarding the protection of the
rights of Master Tenzin. In this complaint, it was brought to the notice of the
NCPCR that Master Tenzin had been permitted by the petitioner to
accompany respondents No. 1 & 2 for a two month holiday; he was
admittedly under a sponsorship program of the TCV for which sponsorship
charges had been paid by respondents No. 1 & 2. The child had been issued
an I-Card stating the name of his father as Karma Lama. The fact that this I-
Card had been issued to Master Tenzin being an undisputed fact this Court is
of the view that the submission of respondents No.1 & 2 that the petitioner
school had ultimately promised the custody of the child to them is a
submission which cannot be ignored; the submission of the petitioner that it
was only as an interim measure that respondents No. 1 & 2 had been granted
permission to take the child with them being his sponsors and not entitled to
any better right is belied by the fact that a sponsor would not be permitted to
take a minor child out for a two months vacation; he would also not have an
I-card with the name of respondent No.1 as his father; there was obviously
something more in the mind of the petitioner school; the submission of
respondents No. 1 & 2 on this score that this was with a view to give minor
Tenzin for adoption to respondents No. 1 & 2 is thus not without any force.
31 This Court notes that on 17.01.2013, the NCPCR on the complaint of
respondents No. 1 & 2 had restrained the police from taking any coercive
action against respondents No. 1 & 2 for any act of alleged kidnapping; it
was noted that there was a written promise and consent from the petitioner
school in favour of minor child for a period of two months between
25.12.2012 till 24.02.2013 which period had not yet expired.
32 On 04.02.2013 (i.e. before the expiry of the period of the interim
custody which had been granted to respondents No. 1 & 2 by the petitioner
and which was up to 24.02.2013), an application had been filed by
respondents No.1 & 2 under Section 12 of the Act of 1890 before the
Guardian Judge, Dharamshala. The petitioner school was arrayed as a party.
Tashi Choedon was also arrayed as respondent No. 4. Master Tenzin was
also present in Court on that date. An interim order was passed on the same
date. The Court was of the view that respondents No. 1 & 2 had lawful
custody of minor child Master Tenzin; this custody was validly granted to
them by the petitioner school between 25.12.2012 up to 24.02.2013. An ex-
parte interim order had been passed in favour of respondents No. 1 & 2
granting temporary custody of minor child Master Tenzin to them.
33 This order was the subject matter of challenge before the Himachal
Pradesh High Court in C.M. (P) No.4085/2013. On 04.09.2013, the High
Court after hearing the respective parties i.e. the petitioner and respondents
No. 1 & 2 was of the view that the proceedings which were pending before
the Civil Judge, Senior Division Kangara be transferred to the Civil Judge,
Senior Division, Shimla; interim protection granted to respondents No.1 & 2
would continue till the disposal of the petition before the Civil Judge, Senior
Division. The High Court while disposing of this petition on 04.09.2013 had
thought it fit to describe Master Tenzin as an „abandoned orphan‟. This was
after noting the facts of the case.
34 Section 12 of the Act of 1890 empowers the Guardian Court to pass
orders for the temporary custody and protection of the minor. The petition
under Section 12 was disposed of by the Civil Judge, Senior Division,
Shimla on 23.11.2014. The petitioner as also respondents No. 1 & 2 were
duly represented. Facts were noted in detail. It was noted that Master
Tenzin is a Tibetian Buddhist by religion. A receipt dated 20.08.2012 had
been issued in the name of respondents No. 1 & 2 acknowledging the fact
that they had paid 480 $ towards the sponsorship and support for a period of
one year for Master Tenzin. It was admitted that the petitioner had permitted
Master Tenzin to accompany respondents No. 1 & 2 for a period of two
months during his winter vacation. The financial status of respondents No. 1
& 2 had been noted. It was noted that both the respondents had adequate
moveable and immoveable assets and they were in a position to provide a
secure and stable home to Master Tenzin. Their strong commitment to
family values and in preserving the cultural and heritage of a parental home
had also been noted.
35 All parties before the said Court had been served including Tashi
Choedon (respondent No.4). She chose not to appear. She was subsequently
deleted from the array of parties vide order dated 15.02.2013. It was noted
by the Court that Tashi Choedon had not been capable of taking care of her
son; she thus could not be termed as a „relative‟ of Master Tenzin; she had
also never made any effort to get herself appointed as guardian of Master
Tenzin. This order (of the deletion of her name) was never challenged;
neither by the petitioner and nor by Tashi Choedon herself.
36 Twenty witnesses were examined before the Guardian Court. Forty
documents had been exhibited. The statement of the petitioner was recorded.
It was deposed that the child was an orphan and the whereabouts of his
biological parents were not known. It was admitted that Master Tenzin had
been sponsored by respondents No. 1 & 2 and he was permitted to spend his
winter vacations with them. The Judge had framed several issues in the
matter and dealt with each of them issue-wise. The question as to whether
respondents No. 1 & 2 were liable to be appointed as guardians of Master
Tenzin was framed as issue No. 1. The interest and welfare of the minor
child was framed as issue No. 1 (a). The Court after examination of the oral
and documentary evidence was of the view that since Master Tenzin was a
domicile of India and being a minor, the provisions of Guardians and Wards
Act would be applicable. The observations of the Apex Court in Laxmi Kant
Pandey (Supra) noting a no distinction between a „foreign national‟ and an
„Indian national‟ on the concept of guardianship was highlighted. The status
of the petitioner school gathered from the evidence which included the fact
that a teacher of the petitioner school had been arrested for committing rape
on a female child was also noted; it was also noted that admission of Master
Tenzin had not been reported by the school authorities to any local police or
to the Child Welfare Committee (CWC).
37 While disposing of the petition on 11.12.2014, the learned Guardian
Court appointed respondents No. 1 & 2 as guardians of Master Tenzin and
his custody which was already with them was to continue. However, Master
Tenzin was not permitted to be taken outside India unless and until he was
adopted in accordance with law; a direction was given by the Court that
adoption should be as per the CARA Guidelines and the inter-country
adoption law prevailing in the USA.
38 This order dated 11.12.2014 was the subject matter of challenge
before the High Court of Himachal Pradesh. The appeal was admitted and
taken up for hearing on 07.05.2015. Notice was issued to respondents No. 1
& 2 for 18.06.2015. The apprehension of the petitioner that respondents No.
1 & 2 would take the child out of country led them to file an application
before the High Court of which an advance copy of the same was given to
the learned counsel for the respondents. Counsel for the respondents
appeared before the High Court on 04.06.2015. They produced a copy of an
order passed by the learned Family Judge, Family Court, Saket dated
23.05.2015 under Section 9 (4) of the HAMA appointing respondent No. 1
as the adoptive father of Master Tenzin.
39 The vehement contention of the learned counsel for the petitioner that
respondents No.1 & 2 fully well knowing about the factum of pendency of
the appeal before the Himachal Pradesh High Court (against the order dated
23.11.2014) had yet in a clandestine manner obtained an ex-parte order
under Section 9 (4) from the Family Court, Saket is belied. The order of the
Family Court passed on 23.05.2015 was passed prior in time to the petitioner
having made an application before the Himachal Pradesh High Court seeking
a restraint on the respondents from taking Master Tenzin out of the country.
It is also not the case of the petitioner that notice of the pending appeal had
been served upon respondents No.1 & 2 prior to 23.05.2015. This is clear
from the averments made in the writ petition and the ambiguity, if any, is
washed away in the list of dates which has been appended by the petitioner
in his petition. These averments and list of dates clearly show that on
23.05.2015 when the Family Court, Saket had passed an order appointing
respondent No. 1 as the guardian of Master Tenzin, the respondents had no
notice of any appeal pending before the Himachal Pradesh High Court.
40 Be that as it may, this Court as an additional fact notes that this appeal
was voluntarily withdrawn by the petitioner on 21.08.2015. This was a
chosen act of the petitioner. They had consciously withdrawn the appeal.
Thus the order of the Guardian Court dated 23.11.2014 had become a final
order. This final order appointing respondents No. 1 & 2 as guardians of
Master Tenzin having attained its finality, it was by law established that
respondents No. 1 & 2 are undisputed guardians of Master Tenzin.
41 Sections 9 (4) & (5) of the HAMA are relevant. They read as under:-
"9 Persons capable of giving in adoption. --
(1) xxxxxx.
(2) xxxxxx.
(3) xxxxxx.
(4) Where both the father and mother are dead or have completely and
finally renounced the world or have abandoned the child or have been
declared by a court of competent jurisdiction to be of unsound mind or
where the parentage of the child is not known, the guardian of the child may
give the child in adoption with the previous permission of the court to any
person including the guardian himself.]
(5) Before granting permission to a guardian under sub-section (4), the
court shall be satisfied that the adoption will be for the welfare of the child,
due consideration being for this purpose given to the wishes of the child
having regard to the age and understanding of the child and that the
applicant for permission has not received or agreed to receive and that no
person has made or given or agreed to make or give to the applicant any
payment or reward in consideration of the adoption except such as the court
may sanction. Explanation.-- For the purposes of this section--
(i) the expressions "father" and "mother" do not include an adoptive father
and an adoptive mother; 6 [***]
[(ia) "guardian" means a person having the care of the person or a child
or of both his person and property and includes--
(a) a guardian appointed by the will of the child's father or mother; and
(b) a guardian appointed or declared by a court; and]
42 The definition of a „guardian‟ as contained in the Explanation to
Section 1 (ia)(b) includes a guardian appointed or so declared by a Court.
43 This provision {Section 9 (4)} clearly stipulates that where the
parentage of a child is not known, the guardian of the child may give the
child in adoption to any person including the guardian himself. The rider is
that this has to be with the permission of the Court.
44 It was on the premise of this statutory provision that respondents No. 1
& 2 had moved the Family Court at Saket. They were admittedly guardians
of Master Tenzin. This had been held by a Competent Court of Civil Judge,
Senior Division, Dharamshala on 23.11.2014. This order, at the cost of
repetition, had attained a finality. The guardian with the permission of the
Court under Section 9 (4) of the HAMA may give the child in adoption.
45 Sub-Section 5 casts an obligation on the Court to ensure that the
adoption should be for the welfare of the child and the wishes of the child
having regard to the age and understanding of the child have to be
considered.
46 Respondents No. 1 & 2 were thus fully permitted to file this
application under Section 9 (4) of the HAMA. The order passed by the
Family Court was well within its jurisdiction. The registered adoption deed
dated 15.04.2015 in favour of respondents No. 1 & 2 is also a part of the
record. This adoption deed had been produced before the Court pursuant to
the order of the Family Court dated 30.04.2015 who had directed the parties
to produce the registered adoption deed from the concerned Registrar
relating to Master Tenzin on or before 05.05.2015. It was thereafter i.e. after
the perusal of the deed of adoption and the statement of the parties that the
order dated 23.05.2015 had been passed by the Family Court.
47 The submission of the petitioner that the Family Court did not have
the jurisdiction to deal with the aspect of adoption in terms of Section 7 of
the Family Court Act, 1984 is a submission which is misunderstood.
FAMILY COURT ACT, 1984
48 Relevant would it be to extract Section 7:-
"7. Jurisdiction - (1) Subject to the other provisions of this Act, a
Family Court shall
-
(a) have and exercise all the jurisdiction exercisable by any district court or
any subordinate civil Court under any law for the time being in force in
respect of suits and proceedings of the nature referred to in the explanation;
and
(b) be deemed, for the purposes of exercising such jurisdiction under such
law, to be a "district court" or, as the case may be, such subordinate civil
court for the area to which the jurisdiction of the Family Court extends".
49 Explanation (g) to Section 7 of the Family Court Act reads herein as
under:-
"7. Jurisdiction.-
(1) Subject to the other provisions of this Act, a Family Court shall- -
(1) (a) xxxxxx
(b) xxxxxx.
Explanation.-The suits and proceedings referred to in this sub-section are
suits and proceedings of the following nature, namely:-
(g) a suit or proceeding in relation to the guardianship of the person or the
custody of, or access to, any minor."
50 A Family Court thus has the same jurisdiction which is exercisable by
any District Court or any subordinate Civil Court. Sub-clause (g) appended
to the Explanation provides that a suit or proceedings in relation to
guardianship of a person or custody of a minor will be the subject matter of
jurisdiction before the Family Court.
51 Section 8 excludes jurisdiction of all other Courts except the Family
Court in a suit of the nature as described in sub-clause (g) of the Explanation
appended to Section 7. It stipulates that where a Family Court has been
established, no District Court or any other subordinate Court in relation to
that or will have or exercise jurisdiction in respect of any suit or proceedings
of the nature referred to in the Explanation of Section 7.
HAMA, 1956
52 Section 2 (a) of the HAMA applies to any person who is a Buddhist,
Jaina or Sikh by religion. Master Tenzin was a Buddhist by religion. The
HAMA would be applicable to the rights of Master Tenzin. Chapter II of the
HAMA which deals with adoption stipulates that no adoption shall be made
after the commencement of this act (21.12.1956) except in accordance with
the provisions of this Chapter. Sections 9 (4) and (5) have already been
referred to supra. Section 9 (4) provides that where the parentage of the
child is not known (as is so in the instant case), a guardian of the child may
give the child in adoption to any person including the guardian himself. The
definition of „guardian‟ as highlighted in the Explanation (ia) (b) appended
to Section 9 of the HAMA has also been referred to supra. This definition
includes a guardian appointed by a Court. Respondents No.1 & 2 had
admittedly been appointed as guardians by a Court of competent jurisdiction
i.e. Court of Senior Civil Judge, Dharamshala on 23.11.2014. That order is a
final order.
JJ ACT, 2000
53 The JJ Act, 2000 was promulgated on 30.12.2000. Section 41
contained in Chapter IV describes the rehabilitation and social integration
process. Section 41 (2) applies to a child who is an orphan. Sub-clause (3)
makes a reference to the CARA Guidelines as notified by the Central
Government; sub-clause (4) stipulates that the child has to be free for
adoption before the child can be offered for adoption. Sub-section 4
recognizes the institutions or voluntary organizations for placement of
orphan, abandoned and surrendered children for adoption in accordance with
its Guidelines. Sub-clause (5) states that no child shall be offered for
adoption unless he is made free for adoption. Section 68 gives powers to the
State Government (by a Notification in the official gazette) to make Rules to
carry out the purposes of the Act.
JJ RULES, 2007
54 These Juvenile Justice (Care and Protection of Children) Rules, 2007
came into effect on 26.10.2007. These Rules have been notified under the
powers conferred to the State Government under Section 68 of the JJ Act,
2000. These Rules have a statutory force.
55 The best interest of the child as described in Section 2 (c) means a
decision taken to ensure that the physical, emotional, intellectual and moral
development of the juvenile or the child is taken care off. Rule 33 contained
in Chapter V lays down the procedure for adoption. The primary object
being to provide a child who cannot be cared off by his biological parents
with a permanent substitute family. The CARA Guidelines notified by the
Central Government are to apply for all persons falling under Section 41 (3).
This includes an orphan child as has been described in Section 41 (2).
56 Rule 33 (5) reads as under:-
"For the purpose of Section 41 of the Act, 'Court' implies a Civil
Court, which has jurisdiction in matters of adoption and guardianship and
may include the court of the District Judge, Family Court and City Civil
Court."
57 This sub-rule defines a Court to include a Civil Court which has
jurisdiction in matters of adoption in guardianship and may include the Court
of District Court, Family Court and the City Civil Court.
58 A holistic, wholesome and harmonious reading of the aforenoted
provisions of law particularly Sections 7 & 8 of the Family Court Act,
Sections 9 (4) & (5) of the HAMA and Sections 41 (2)(3) of the JJ Act, 2000
coupled with Rule 33 (5) of the JJ Rules, 2007 clearly reflects the intent of
the Legislations; it evidences that the Family Court has the same jurisdiction
which is exercisable by any District Court or any other sub-ordinate Civil
Court. A Family Court is thus specifically clothed with the jurisdiction to
deal with matters of adoption as contained in Section 41 which includes an
orphan child. It persuades this Court to hold that the Family Court was well
within its domain to exercise jurisdiction in matters of adoption; its
jurisdiction was in no manner ousted by the subsequent enactment of JJ Act,
2000.
59 This Court is fortified in this view by a judgment of a Division Bench
of Madhya Pradesh on this score reported as First Appeal No.55/2013 Tarun
Kadam & Another Vs. State of Madhya Pradesh and Another delivered on
17.09.2014.
60 The judgment of the Bombay Bench in Foreign Adoption Case (supra)
and of the Kerala Bench in Andrew Mendis (supra) had relied upon its earlier
dicta given in Vinod Krishnana; the judgment of Vinod Krishnan had not
considered the scope of Rule 33 (5) of the JJ Rules, 2007 obviously for the
reason that it was passed prior in time to the promulgation of the said Rules.
The judgment of Andrew Mendis in fact presupposed that Rule 33 (5)
confers by necessary implication a jurisdiction on the Family Court to deal
with matters of adoption but nevertheless had gone on to examine the
provisions of the General Clauses Act to draw a conclusion to the contrary.
This Court with respect does not adhere to the view of the Kerala Bench in
Andrew Mendis or of the Bombay Bench.
61 This Court again notes that the Guardian Court, Senior Division,
Shimla while disposing of the petition on 23.11.2014 had directed the
respondents to get the adoption of Master Tenzin to be effected in terms of
the CARA Guidelines as also the inter-country adoption laws of United
States of America.
62 CARA (subsequently impleaded as a party) has filed an affidavit as
also an additional affidavit. It was stated that the application filed by
respondents No. 1 & 2 seeking a NOC was examined in July, 2016; this was
examined in the light of the Guidelines governing Adoption of Children
Rules, 2015; this was pursuant to the order dated 23.05.2015 issued by the
Principal Judge, Saket. The 2015 Adoption Guidelines would apply in terms
of para 53 (3) of the said Regulations which apply to pending adoptions; the
instant adoption allowed by the Family Court on 23.05.2015 came under the
category of the pending adoptions; it was for this reason that 2015 Adoption
Guidelines would apply. CARA has issued a NOC in exercise of its
jurisdiction as conferred upon it under para 17 (1) of the said Regulations
and 17 (c) of the Hague Convention. This NOC has been issued only after
the dossier was placed before the NOC Committee and duly approved by the
Committee. It has also been brought to the notice of this Court that this NOC
had been granted after a home study had been conducted by CARA on
25.07.2016, a no objection certificate (dated 26.07.2016) has been issued in
favour of respondents No. 1 & 2. This home study conducted by CARA was
to verify the antecedents of the adoptive parents. This home study was
conducted on 14.07.2016. Two social workers had met respondents No. 1 &
2 along with Master Tenzin at their residence. It was reported that the
emotional, financial and physical status of respondents No.1 & 2 was stable
and they were well prepared for adoption of Master Tenzin who had by then
integrated into the family (being lived with them for over four years).
Respondents No. 1 & 2 appeared to be suitable parents; it was accordingly
recommended this couple (respondents No.1 & 2) was right for adopting
Master Tenzin as per all required criteria.
63 It is relevant to note that this home study has made a detailed and a
comprehensive analysis of the prospective adoptive parents and the
conclusion had been arrived at only thereafter. This format by itself runs
into 8-9 pages. It was noted that Master Tenzin was living with the family
for more than four years and he has a good bonding with his parents. The
needs and desires of the child appeared to be fulfilled; the parents were
concerned about the education and other developmental issues of the child;
being an educated family, their focus was on providing the child with a
healthy upbringing; the awareness of Master Tenzin and his comfort with the
family as also his further dream of going to Alaska, USA were also noted. It
had accordingly wholeheartedly recommended that respondent No. 1 & 2 be
given a clearance and a no-objection from CARA. This home study report
was signed by the Programme Officer as also the Programme Manager of the
Department of Women and Child Development.
64 Pursuant to this home study report dated 25.07.2016, a „no objection
certificate‟ had been issued by CARA on 26.07.2016. This document is a
part of the record. It is not assailable.
65 The vehement contention of the learned counsel for the petitioner that
CARA by giving a „no objection‟ at this stage (which is admittedly an ex-
post facto approval) has gone behind its own objects. This submission has
neither been expanded and nor has it been taken any further than the
aforenoted sentence. How CARA has gone back on its objects has not been
explained.
66 The CARA Guidelines, 2015 notified on 17.07.2015 in Rule 53 states
that the earlier Guidelines governing Adoption of Children Rules, 2011 are
repealed; all pending adoptions shall be processed as per these Guidelines.
Admittedly the application of the respondents seeking an NOC from CARA
was made in July, 2016 on which date the notified Guidelines for adoption
were of the year 2015. Thus the 2015 Cara Guidelines would be applicable
to an NOC to be granted by CARA which has been granted on 26.07.2016.
This is also the stand of the petitioner.
67 Reliance by the learned counsel for the respondents on Section 60 of
the JJ Act, 2015 is also an argument which has force. It is pointed out that
under Section 60 of the JJ Act, 2015 (prevailing at the time when CARA
granted its NOC on 26.07.2016) postulates that an ex-post facto approval can
be granted; Section 60 (1) in fact states that a relative who intends to adopt a
child shall obtain an order from the Court and he may then apply for an NOC
from the authority in the manner as provided in the Adoption Regulations
framed by the Authority. This Section thus clearly contemplates an ex-post
facto approval. A Bench of this Court in PKH (supra) while examining the
provisions of Section 60 had noted that the scope of this provision should be
expanded in order to advance the best interest of the child. It had also
instructed CARA to ensure that all applications for approval/NOC should be
processed in a child friendly manner and within a fixed time frame.
68 In this context, it would be relevant to note the conduct of respondents
No.1 & 2. It is noted that after an order had been obtained by respondents
No. 1 & 2 from the Guardian Court on 23.11.2014 asking them to comply
with a direction to follow the CARA Guidelines as also the inter-country
adoption laws, respondents No. 1 & 2 made all out efforts to comply with
this direction. They approached the CARA. CARA by its communication
dated 09.03.2015 noted herein as under:-
"In this regard, the inter-Ministerial Meeting held on 02/02/2011 was
of the view that since Tibetans have a Government in Exile, which is fully
functional, it may be appropriate for it to decide whether they want to give
their children in adoption. It was also viewed that in case immigration
clearance is required for Tibetan citizens leaving India for adoption
purpose, MHA would offer necessary facilitation."
69 Respondents No. 1 & 2 had no other option but to approach the CTA.
CTA is admittedly neither recognised by the US authorities (of whom
respondent No. 1 is a citizen) and neither by the Italian Government (of
whom respondent No. 2 is a citizen). The communication from the Italian
Embassy (dated 23.02.2015) and the U.S. Embassy (dated 16.06.2015)
clearly informs the respondents that the CTA is not an identifiable body qua
the US and Italian authorities.
70 It would obviously thus have been a futile attempt for respondents
No.1 & 2 to have approached the CTA.
71 On 23.05.2015, an application under Section 9 (4) of the HAMA was
preferred by respondents No.1 & 2 before the Family Court, Saket on which
the impugned order had been passed.
72 It was not as if respondents No.1 & 2 were sleeping over their rights
or not making any effort to legalize the adoption of Master Tenzin. They
had made all out efforts to do the needful. They were in fact running from
pillar to post. CARA did not entertain them in the first instance. This is clear
from its communication dated 09.03.2015. Respondents No.1 & 2 then
chose to approach the CTA but the non-recognition of the CTA by their
respective Governments left them with no option but to approach the Family
Court under Section 9 (4) of the HAMA. At the cost of repetition, the
Family Court was clothed with jurisdiction to deal with such an application.
Respondents No.1 & 2 had been appointed as guardian of Master Tenzin by
an unassailable order dated 23.11.2014; Section 9 (4) of the HAMA enabled
the Family Court to appoint respondent No. 1 as the adoptive father of
Master Tenzin. This was well within the parameters of law.
73 This Court also notes the stand of CARA who has now on 26.07.2016
granted a „no objection certificate‟ in favour of respondents No.1 & 2. The
Hague Convention and particularly Articles 5 & 17 of the Hague Convention
also stand satisfied.
74 The stand of the CTA has already been noted in its counter affidavit.
Their uncontroverted stand is that they have no role to play in these
proceedings which are inter-se proceedings largely between the petitioner
and respondents No. 1 & 2.
75 This Court is also of the view that this is not a case of „inter-country
direct adoption‟. This was the alternate argument propounded by the learned
counsel for respondents No.1 & 2. This is not a case where the natural/
biological parents of Master Tenzin were transferring their child to the
adopted parents which in the view of this Court would alone qualify as an
„inter-country direct adoption‟; that would be a case where there is no
intermediary party.
76 The connected argument in this context has also been noted. It had
been propounded that the petitioner/TCV is admittedly not registered; this
fact is undisputed; it has also come on record that the admission of Master
Tenzin in the petitioner school was not reported to any Child Welfare
Committee; this had emanated in the evidence recorded before the Guardian
Court at Dharamshala, Shimla; it would thus be a case of a private adoption
and not on inter-country adoption.
77 The view of this Court is that such a non-registration/non-reporting is
amenable to a penalty both under the JJ Act, 2000 and the subsequent Act of
2015. It would not take the case of Master Tenzin away from the ambit of an
„inter-country adoption‟. This would still qualify as an „inter-country
adoption‟ and not an „inter-country direct adoption‟. Master Tenzin being an
orphan and having been placed in the petitioner institution. The CARA
Guidelines had to be adhered to.
78 The celebrated judgment of Laxmi Kant Pandey had in fact
recommended a regulatory body i.e. Central Adoption Resource Agency
(CARA) to be set up which has since been playing a pivotal role in matters
of inter and in-country adoption. This has been reiterated by the Supreme
Court in W.P. (C) No.470/2005 in Shabnam Hashmi Vs. Union of India
delivered on 19.02.2014. This judgment while considering the provisions of
the JJ Act, 2000 had noted that this is an enabling legislation giving the
prospective parents an option for adoption of an eligible child by following
the procedure prescribed by the Act, Rules and CARA Guidelines as notified
under the Act.
79 In the peculiar facts and circumstances of this case, this Court is of the
firm view that the impugned order in no manner suffers from any infirmity.
Respondent No. 1 is the legally adopted parent of Master Tenzin.
80 Petition is without any merit. Dismissed.
INDERMEET KAUR, J
NOVEMBER 18, 2016
A
