On 26th July, a bench of Delhi High Court consisting of Justice Asha Menon while hearing the case regarding the validity of an adoption of a child who was with the adopted family since 2014, stated that as per the Model Guidelines for Foster Care, 2016 read with Rule 44(v) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, a Foster Family, who has been taking care of a child for a minimum of 5 years, can apply under the prescribed procedure for adoption, which is slightly different from the procedure in normal course.
The court in the interest of the welfare of the child keeping in mind that the child had been staying with the adopted family for the past 7 years and has been living in good condition held that the child had to be handed over to the adopted parents by the Child Welfare Commission, declaring them as the “foster family”.
Facts of the case:
A petition was by the petitioners describing themselves as the adoptive parents of a minor, seeking directions to the Central Adoption Resource Authority to issue a “No Objection Certificate” to them, which would enable them to take their “adopted child”, the above-said minor, to the United States of America. Directions have also been sought to Union of India for issuance of a passport to the minor mentioning the petitioners as her parents.
Contention of the petitioner:
Mr. Samar Bansal, learned counsel for the petitioners submitted the following contention:
- The petitioners have suffered on account of wrong legal advice and that the child had not been trafficked as the cousin of petitioner, Sister EA, who was also a Social Worker had acted out of compassion.
- It was also submitted that the biological parents were very happy to hand over the child to Sister EA, as they were confident that the child would have a bright future, if given in adoption.
- It was also contended that an Adoption Deed, duly witnessed by the S. of V. K.C.W. along with Sister EA, was registered with the Sub-Registrar, Ferozepur on 18th December, 2014.
- The learned counsel for the petitioners also argued that the present case was one of “direct adoption” and since the requisite documents have been submitted by the petitioners to CARA, on the basis of those documents, CARA ought to issue the NOC.
- It was also this Court to consider that since the child does not know her biological parents as she has been with the petitioners and the parents of the petitioner and therefore to disturb the arrangement would not be in the interest and the welfare of the minor.
Contention of the Respondent:
The learned counsel for the respondent argued against the adoption on the following grounds:
- It was argued that Adoption Deed drawn up under the HAMA is invalid as the parties are Christians and not Hindus. Thus, no valid Adoption Deed exists to establish the relationship between the petitioners and the minor.
- It was further submitted that it was possible for Sister EA, being a social worker, to have taken the biological parents of the child to the CWC to record the voluntary surrender of the infant and to enable the CWC to declare the surrendered child as fit for adoption.
- It was also argued that although the petitioners have been struggling but they have only themselves to blame and CARA cannot be blamed for sticking to the Rules.
- The counsel also contended that there is no court order declaring the minor to be the adopted child of the petitioners.
Observation and Judgement of the court:
The Hon’ble bench of the court made the following observation:
- The overall picture that emerges on the basis of all the materials is that the child has not been trafficked. Though no formal surrender was made by the biological father before the CWC at Ferozepur, he has affirmed on oath before the Additional Civil Judge.
- A Foster Family, who has been taking care of a child for a minimum of 5 years, can apply under the prescribed procedure for adoption, which is slightly different from the procedure in normal course.
In the light of the above the court declared that the minor is the adopted child of the petitioners. The court thereafter directed CARA to issue the requisite NOC without insisting on the compliance of provisions of Section 59(3) in the Juvenile Justice Act dealing with NRIs or OCIs.
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