O.P. No. 247 of 2011. Case: In Re: Mr. Tim Cecil and Mrs. Steffi Cecil Vs. High Court of Madras (India)
| Case Number | O.P. No. 247 of 2011 |
| Counsel | For Appellant: O.R. Abul Kalam, Adv. |
| Judges | V. Ramasubramanian, J. |
| Issue | Guardians and Wards Act, 1890 - Sections 2, 3, 7, 8, 9, 10, 17, 26 and 41; Hindu Adoptions and Maintenance Act, 1956 - Section 17 and 17(2); Indian Penal Code - Sections 372, 373 and 373A; Juvenile Justice (Care and Protection of Children) Act, 2000; High Court Original Side Rules - Order 21, Rule 10(A)(1); United Nations Standard Minimum Rules... |
| Judgement Date | June 13, 2011 |
| Court | High Court of Madras (India) |
Order:
V. Ramasubramanian, J.
1. On the occasion of the 30th anniversary celebrations of the Joint Council on International Children's Services (JCICS), Ms. Melanie Chung-Sherman, Director of Adoptions, Texas, Dillon International Inc., delivered a speech, which was very poignant and moving, the reason being that she herself was a Korean adoptee. The following excerpts from her speech may aptly reflect the dilemma in which I have been placed, in the case on hand:
...this field unlike others requires a higher degree of introspection and self reflection in order to serve the needs of many.... We have a heavy burden and responsibility to not only look inward, but also outward and upward.... As a Korean adoptee, my life is a myriad of juxtapositions-born of one parentage and raised in another, continually balancing two worlds and cultures, teaching and being taught, losing and gaining, searching and being found. Each of those equates who I am, where I am going and where I have come from. I am Melanie Chung-Sherman. Wife. Daughter. Sister. Orphan. Adoptee. Korean. American. Advocate. Ambassador. Social Worker. Teacher. Student. Humbled. Flawed. Resilient. And above all, a child of God.
...I have travelled to the far ends of the earth where forgotten children lay in cribs, rocking themselves for comfort, visited orphanages where running water was rationed, if on at all, watched as children bathed in raw sewage and consoled the children who were considered 'too old and unwanted' by the rest of the society. I have also seen incredible acts of humility and love--as a birth mother signs over relinquishment with sorrow and hope, as a Russian Judge confirms an adoption in a cold, stoic court room, as a child arrives to the anxious arms of his new parents.
2. The petition on hand under Sections 3 and 7 to 10 of the Guardians and Wards Act, 1890, is one filed by a couple from Germany, seeking their appointment as the guardians of an infant girl aged about 8 months. What makes this case different from the others is that it is filed with the consent of the biological parents, without being processed through a recognised agency from either of the countries involved.
3. As per the averments contained in the petition, the Petitioners are German Nationals. They started living together from 1997 and got married on 8.2.2008. They do not have any biological child and as per medical opinion, the first Petitioner suffers from Azoospermia, which makes him incapable of fathering a child.
4. When the Petitioners came to India, they got acquainted with a couple by name N.Vijayakumar and N.Kalpana of Oothukottai, Thiruvallur District. The couple offered to give their female child, born on 20.8.2010, for being fostered and brought up by the Petitioners. The biological parents already have three female children by name Hemalatha, aged 11 years and Jeyanandam, aged about 8 years and Usha Sakunthala, aged about 6 years. The child whom the biological parents have offered to give, is the fourth child.
5. Since it is a case of Inter Country Adoption, the Petitioners were required by law to be sponsored by a recognised Agency. But contending that in a case of this nature, the said requirement of law under Rule 10(A)(1) of Order XXI of the High Court Original Side Rules, need not be insisted upon, the Petitioners filed Application No. 1560 of 2011 for dispensing with the said requirement. On 21.3.2011, I passed an order in the said application to the following effect:
Office is directed to number this Original Petition and list it for interviewing the biological parents and the adoptive parents on 25.3.2011 at 4.00 P.M., in the Chambers.
Accordingly, the Original Petition got numbered and it was posted in my Chamber. I first interviewed the Petitioners as well as the biological parents and their evidence was also recorded later in my Chamber. The biological father N.Vijayakumar was examined as PW-1. He filed the following documents as exhibits:
(i) An outpatient slip issued by the Primary Health Centre where the minor child was born, as Ex.P-1.
(ii) The Birth Certificate of the minor child, as Ex.P-2.
(iii) The photograph of the minor child with the negative, as Ex.P-3 and
(iv) The consent letter given by the biological parents, as Ex.P-4.
6. The biological mother was examined as PW-2. She identified Exx.P-1 to P-4 and she also confirmed that she and her husband were willingly giving the child in adoption.
7. The second Petitioner was examined as PW-3. She stated that she is employed in a Travel Agency and is earning about Euros 2,000/-per month. She filed her Marriage Certificate as Ex.P-5 and filed the Pay Advice given by her employer, as Ex.P-6. She also filed a letter of consent given by both the Petitioners to take the child in adoption, as Ex.P-7. She stated on oath that the Petitioners would be able to take care of the child, educate her and pay for all her needs.
8. The first Petitioner was examined as PW-4. He filed the Certificate of Marriage issued by the Civil Registry Office of the Town by name Worms, as Ex.P-5. He is employed as a Manager in a Marketing Company, earning a monthly income of Euros 3,500/-. Ex.P-8 is the Pay Advice of his employer. The Certificate of Residency issued by the Office of the Civil Registry of the Town to the Petitioners, was filed as Ex.P-9. The Medical Certificate filed as Ex.P-10 shows that the first Petitioner suffers from Azoospermia, which makes him incapable of fathering a child. Exx.P-11 and P-12 are the Police Clearance Certificates issued for both the Petitioners, indicating that they do not have any bad antecedents.
9. From the averments contained in the petition and from the oral and documentary evidence on record, the case on hand appears to be a genuine one. The consent of the biological parents does not appear to have been brought forth by coercion, undue influence or any other consideration.
10. But the question that I should consider first and foremost is as to whether the subjective satisfaction reached by me could form the basis for ordering this Original Petition. As stated earlier, the Petitioners have not been sponsored through any recognised Agency in India or abroad. Consequently, there is No. Home Study Report. But Mr. O.R.Abul Kalam, learned Counsel for the Petitioners contends that sponsorship by an Agency and a Home Study Report, are necessary only in cases of adoption of abandoned children and that the same need not be insisted upon in cases where the biological parents themselves willingly give their child in adoption.
11. The Rules relating to Inter Country Adoptions came to be framed in pursuance of the judgment of the Supreme Court in Lakshmi Kant Pandey v. Union of India AIR 1984 SC 469. In paragraph 11 of the said decision, the Supreme Court made it clear that they were not concerned in that case with cases of adoption of children living with their biological parents, since in those cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents or not. It was also clarified in paragraph 11 of the said decision that it is only in cases where the children sought to be adopted are destitute or abandoned and are living in Social or Child Welfare Centres that it was necessary to consider what normative and procedural safeguards should be forged for protecting their interest and promoting their welfare. Therefore, drawing my attention to the observations of the Supreme Court, contained in paragraphs 11, 12 and 13 of the said decision, the learned Counsel for the Petitioners contended that there is No. requirement of sponsorship by an Agency or the production of a Home Study Report.
12. In Anokha (Smt) v. State of Rajasthan 2004 (1) SCC 382, a couple who were Italian Nationals adopted a female child from its biological mother, after the father of the biological child, known to them for 20 years, died in a road traffic accident. The District Judge before whom a petition was filed under Sections 7, 10 and 17 of the Guardians and Wards Act, 1890, dismissed the same on the ground that the guidelines prescribed by the Ministry of Welfare, Government of India, would have to be followed and that unless an authorised agency in Italy submitted an enquiry report and a No. Objection Certificate was issued by the Ministry of Welfare, the application for appointment of foreigners as Guardians could not be accepted. The District Judge, while holding so, took the view that the guidelines would apply irrespective of whether the child's biological parents were alive or not. The High Court also affirmed the said view. While reversing the decisions of the District Court and the High Court, the Supreme Court referred to the decision in L.K Pandey and held as follows:
8....
The decision has referred to three classes of children: (i) children who are orphaned and destitute or whose biological parents cannot be traced; (ii) children whose biological parents are traceable but have relinquished or surrendered them for adoption; and (iii) children living with their biological parents. The third category has been expressly excluded from consideration as far as the decision was concerned "for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents" (Ibid., SCC p. 264, para 11 of the Report). The reason is obvious. Normally, No. parent with whom the child is living would agree to give a child in adoption unless he or she is satisfied that it would be in the best interest of the...
To continue reading
Request your trial