Partly allowed

Johnson C.N. v. Union of India

Kerala HC7 Nov 2012WP(C)/32026/2006

Case brief

AI extract

What is this about?

Petitioners sought a declaration that Family Court and Juvenile Justice Board orders were sufficient proof of adoption for visa issuance. The Court declared the Juvenile Justice Board order a valid and legally enforceable adoption order under Indian law.

What did the court decide?

It was declared that the Ext.P3 order is a valid order of adoption and is legally enforceable as per Indian Laws.

Johnson C.N. Vs Union of India — Child Custody and Guardianship | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012/16TH KARTHIKA 1934

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WP(C).No. 32026 of 2006 (K)

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PETITIONER(S):

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1. JOHNSON C.N., AGED 42 YEARS, S/O.NICHLOS, CHERUVATHOOR HOUSE, CHEMMENTHATTA DESOM THALAPPILLY TALUK, THRISSUR DISTRICT, KERALA INDIA.

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2. SHOWLY V.T., W/O.JOHNSON C.N., CHERUVATHOOR HOUSE, CHEMMENTHATTA DESOM THALAPPILLY TALUK, THRISSUR DISTRICT, KERALA INDIA.

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BY ADV. SRI.SHOBY K.FRANCIS

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RESPONDENT(S):

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1. UNION OF INDIA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI.

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*2. U.S.CONSULATE GENERAL, OFFICE OF CONSULAR AFFAIRS, GEMINI CIRCLE 220-ANNA SALAI, CHENNAI-6, INDIA. * (DELETED)

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R2 DELETED AS PER ORDER DT. 7.11.2012 IN IA. 11148/2009.

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BY SRI.JOHN VARGHESE, ASSISTANT SG BY ADV. SRI.K.C.SANTHOSH KUMAR, ADDL.CGSC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2012, THE COURT ON 07112012 DELIVERED THE FOLLOWING:

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tss

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W.P.(C) NO.32026/2006

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1:- COPY OF ORDER OF THE FAMILY COURT, THRISSUR IN G.O.(P) NO.585/2004 DTD 31.8.2004.

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P2:- COPY OF VISA DTD. 16.6.2006 ISSUED TO THE PETITIONERS BY THE UNITED STATES OF AMERICA.

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P3:- COPY OF ORDER OF THE JUVENILE JUSTICE BOARD, THRISSUR DTD. 29.9.2006 IN MP.109/06.

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RESPONDENT'S EXHIBITS:-

NIL

//TRUE COPY//

P.S. TO JUDGE

tss

A.M.SHAFFIQUE, J.

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---------------------------------------------------W.P.(C) No. 32026 of 2006 - K

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Dated this the 7^th day of November, 2012

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J U D G M E N T

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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.

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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:

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“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;

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(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;

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W.P.(C) No. 32026 of 2006 - K

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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.

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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.

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41. Adoption .—(1) The primary responsibility for providing care and protection to children shall be that of his family.

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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.

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(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.

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(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

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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 subsection (3) :

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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).]

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(5) No child shall be offered for adoption—

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(a) until two members of the Committee declare the child legally free for placement in the case of abandoned children,

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(b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and

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(c) without his consent in the case of a child who can understand and express his consent.

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2 [ (6) The court may allow a child to be given in adoption—

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(a) to a person irrespective of marital status; or

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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.]

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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.

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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:

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“(a) Every petition for adoption shall be submitted before the Board by the Superintendent/Officer-incharge of the recognized Children's Home/Placement Agency under the Act.

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xx xx xx xx

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(e) The Board shall undertake a process of enquiry which shall include interviewing the prospective

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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.

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xx xx xx

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(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.

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(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.

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xx xx xx

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(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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W.P.(C) No. 32026 of 2006 - K

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by the Juvenile Justice Board”.

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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.

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In the result it is declared that Ext.P3 order is a valid order of adoption and is legally enforceable as per Indian Laws.

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A.M.SHAFFIQUE, JUDGE

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rka

Johnson C.N. v. Union of India

Case brief

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Johnson C.N. v. Union of India

Case brief

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