IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012
WP(C).No. 32026 of 2006 (K)
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PETITIONER(S):
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1. JOHNSON C.N., AGED 42 YEARS,
RESPONDENT(S):
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1. UNION OF INDIA, REPRESENTED BY
Citation;2013(2)Crimes 247 (kerala)
Petitioners have adopted a minor child, Dalwin by
approaching the Juvenile Justice Board, Thrissur. Ext.P3 is the order
passed by the Board. Even prior to that they had obtained order from
the Family Court, Thrissur for custody of the minor child which is
evident from Ext. P1.
2. According to the petitioners, when they approached the
respondent for obtaining Visa for their travel to USA, the place of
residence of the petitioners, the documents of the minor were not
accepted on the ground that Exts.P1 and P3 were not sufficient legal
documents to prove the adoption. Petitioner hence inter alia seeks the
following reliefs:
"i) Issue a writ of mandamus directing the
respondents to obey and accept Exts.P1 & P3
judicial orders as a final and conclusive formality
as far as Indian Christians are concerned in the
matter of adoption;
(ii) To declare that Exts.P1 & P3 are the final proof
of adoption as far as Indian Christians are
concerned and no other procedure is in force to
establish guardianship and adoption;
W.P.(C) No. 32026 of 2006 - K
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3. The second respondent was removed from the party array
as per order in I.A. No. 11148/2009. The first respondent has not
filed any counter affidavit.
4. To grant the declaration as prayed for, reference to the
provisions to the Juvenile Justice (Care and Protection of Children)
Act, 2000 is S. 41 deals with adoption which reads as under.
41. Adoption.--(1) The primary responsibility for
providing care and protection to children shall be that
of his family.
1[(2) Adoption shall be resorted to for the rehabilitation
of the children who are orphan, abandoned or
surrendered through such mechanism as may be
prescribed.
(3) In keeping with the provisions of the various
guidelines for adoption issued from time to time, by the
State Government, or the Central Adoption Resource
Agency and notified by the Central Government,
children may be given in adoption by a court after
satisfying itself regarding the investigations having been
carried out, as are required for giving such children in
adoption.
(4) The State Government shall recognise one or more of
its institutions or voluntary organisations in each
district as specialised adoption agencies in such manner
W.P.(C) No. 32026 of 2006 - K
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as may be prescribed for the placement of orphan,
abandoned or surrendered children for adoption in
accordance with the guidelines notified under sub-
section (3) :
Provided that the children's homes and the institutions
run by the State Government or a voluntary organisation
for children in need of care and protection, who are
orphan, abandoned or surrendered, shall ensure that
these children are declared free for adoption by the
Committee and all such cases shall be referred to the
adoption agency in that district for placement of such
children in adoption in accordance with the guidelines
notified under sub-section (3).]
(5) No child shall be offered for adoption--
(a) until two members of the Committee declare the child
legally free for placement in the case of abandoned
children,
(b) till the two months period for reconsideration by the
parent is over in the case of surrendered children, and
(c) without his consent in the case of a child who can
understand and express his consent.
2[(6) The court may allow a child to be given in
adoption--
(a) to a person irrespective of marital status; or
W.P.(C) No. 32026 of 2006 - K
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(b) to parents to adopt a child of same sex irrespective of
the number of living biological sons or daughters; or
(c) to childless couples.]
5. Section 41(3) clearly indicates that adoption of children
may be given by a court after satisfying itself regarding the
investigation having been carried out as are required for giving such
children in adoption. Sub-section (6) of S. 41 further indicates that
the court may allow a child to be given in adoption under certain
circumstances.
6. Ext.P1 judgment is an order for custody of the minor
passed under Ss.7 and 10 of the Guardian and Wards Act. Ext.P3
is an order passed by the Juvenile Justice Board on the basis of an
application filed under S.41 read with Rule 37 (6) of the Kerala
Juvenile Justice (Care and Protection of Children) Rules. Rule 37(6)
(a), (e), (j), (k) and (m) reads as under:
"(a) Every petition for adoption shall be submitted
before the Board by the Superintendent/Officer-in-
charge of the recognized Children's Home/Placement
Agency under the Act.
xx xx xx xx
(e) The Board shall undertake a process of enquiry
which shall include interviewing the prospective
W.P.(C) No. 32026 of 2006 - K
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parents, verifying the documents and scrutiny
reports. If the Board is satisfied that the placement
is in the best interest of the child, it shall pass a final
order giving permanent custody to the adoptive
parent/parents. An order of adoption shall be signed
by the Principal Magistrate besides one of the two
Members of the Board.
xx xx xx
(j) No formal form of ceremony for the adoption
under the Act is required and the order issued by the
Board shall be a final Adoption Order. Once an
Adoption Order is issued, it cannot be cancelled and
the adoptive parents cannot be discharged of their
responsibilities as such.
(k) If the parents have already been appointed as
legal guardian by the competent court, then they
need only produce the certified copy of the order
before the Board and the Board after conducting a
formal enquiry, may issue an Adoption Order. Before
issuing the order, the Board shall consider a report of
the Probation Officer regarding the present condition
of the child and family.
xx xx xx
(m) The adoptive child is entitled to get all the rights
as that of a natural born child with respect to the
adoptive parents. A copy of the adoption order
shall be forwarded to the Director of Social Welfare
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by the Juvenile Justice Board".
7. By virtue of the above Rules, once a legal guardian is
appointed by the Juvenile Justice Board,it is valid in the eye of law.
In the result it is declared that Ext.P3 order is a valid order of
adoption and is legally enforceable as per Indian Laws.
A.M.SHAFFIQUE,
JUDGE
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