Stephanie Joan Becker v. State and Others.

Name of the CaseStephanie Joan Becker v. State and Ors.
CourtSupreme Court
CitationAIR 2013 DEL 37; (2013) 12 SCC 786
Year of the Case2013
AppellantStephanie Joan Becker
RespondentState and Others.
Bench/JudgesJustice P. Sathasivam Justice Ranjan Gogoi Justice V. Gopala Gowda
Acts involvedGuardians and Wards Act, 1890 Juvenile Justice (Care and Protection of Children) Act, 2000.
Important SectionsSs.7, 26 of Guardians and Wards Act, 1890 and S.41 of Juvenile Justice (Care and Protection of Children) Act, 2000.

Abstract

Appellant being a single woman of 54 years, denied with guardianship of an orphan minor female child of ten years for inter-country adoption, as it was mentioned in Guidelines of 2006 for Indian adoption a single parent should be on or below the ages of 45 years. The application for a legal guardian of the child was denied by the Trial Court of Delhi dated 17.09.2010 and High Court of Delhi dated 09.07.2012 in FAO No. 425 of 2010 on the ground of restricted age of 45 years and with huge gap difference between the child and the appellant despite having No Objection Certificate provided by Central Adoption Resource Authority. The procedures for Inter-country adoption of Guidelines of 2006 were further repealed by Guidelines of Indian adoption of 2011. Thus the amendments to guidelines of adoption in India, 2011 with 41(3) of Juvenile Justice (Care and Protection of Children) Act, 2000 makes entitle the appellant to a right of adoption by the Supreme Court through setting-aside the order of Trial and High Courts of Delhi and to declare a guardian of the same female child under s.7 and s.26 of Guardians and Wards Act, 1890.

Introduction

The appellant, a 54- year old being single woman residing in the United States of America desired to adopt a child from India. For Inter-Country adoption, the enacted guidelines of adoption in India, 2006 made by the Central Adoption Resource Authority from the Department of Social Justice and the Empowerment Ministry, the Government of India should be satisfied. The appellant was granted with No Objection Certificate by Central Adoption Resource Authority for inter-country adoption of a child. She has all the requirements for the adoption of an orphan child. But the Guidelines of 2006 which confers the adoption of Indian orphan child has restricted and prohibited the desire of appellant

Background

At first, the appellant filed a petition under Section 7 and 26 of the Guardians and Wards Act, 1890 in 2010. The appellant pleaded the Court of law for the adoption of an orphan girl child legally. Such an orphan child should be declared as free for foreign adoption by Coordinating Voluntary Adoption Resource Agency. The appellant was vested with all the qualifications and essential requirements for the Inter-Country adoption. The pleading was for the purpose of appointing and declaring her as a legal Natural Guardian of the orphan child under s. 7 and grant for permission of the Court to carry the girl child by accompanying her aboard to her Country (USA) under s. 26 of the Guardians and Wards Act, 1890.

In this Guardianship case no. 2 of 2010 the Trial Court of Delhi dated 17th of September 2010 denied her right for the adoption of Indian orphan child and in the First Appeal from Order (FAO of 2010) to High Court of Delhi dated 9th of July 2012 dated prohibited her guardianship with an orphan child. With this rejection of her petition and the appeal made was also granted on the ground of Special Leave Petition to the Supreme Court.

Facts

The appellant, a 54 – year old being a single woman who was not married and residing in the United States of America. To achieve an utter family; she decided to adopt a child from India. Stephanie Becker has a rich status and a doctor by profession. Since 2000, she is a Naturopathic Physician for the Washington Centre for Complementary Medicine. Thus, about the conduct report the appellant she lives a high status with all essential and adequate needs of human livelihood. She was intended to adopt a minor girl child named Tina was at the age of 10 years. Tina was found deserted by the police officers. Then she was passed over to the custody of a licensed and registered trust or society of organization which is recognized by the Government of India. Such society acts as a responsible guardian and is only to maintain the orphans who were deserted for several reasons with good care. This Society is the respondent no.2 with respect to this present appeal case [1].

It is to be noticed that Tina was not adopted by Indian residing parents. Hence no Indian family claimed her for adoption. After a month of finding Tina, she was declared as an orphan child and free for Inter-Country adoption by the Child Welfare Committee on the 26th of November 2008. Thus, for further procedures of adoption, the appellant claimed the Court of Law to entitle her as a legal guardian of Tina. The appellant pleaded the Trial Court of Delhi for the legal adoption of Tina. But the Court referring the procedure for guidelines Inter-Country Adoption from Indian, 2006 in Para 4.1 of Chapter – IV a single person is entitled to adoption only when she is on or below 45 years of age. Thus, the appellant was being a 54-year-old single woman and the Court observed that there was a huge gap of an age difference between the child and the appellant. Taking all these circumstances into account the Trial Court of Delhi dated 17th of September 2010 denied her pleading under ss. 7 and 26 of the Guardians and Ward Act, 1890.

The first appeal from the order to the High Court of Delhi viewed the No Objection Certificate which was issued by the Central Adoption Resource Authority dated 3rd of February 2010. The High Court also cleared that the rules mentioned in Para 4.1 of the procedures to guidelines of Indian Adoption, 2006 age directed any one of parents should not exceeds 55 years refers solely to the married persons and not to the single. Thus, even on the ground of relaxation with the No Object Certificate the Court was not satisfied and prohibited the adoption of an Indian child dated 9th of July 2012 since the appellant age is more than 45 years.     

Issues

  1. The amendments to the procedure for Guidelines of Indian Adoption 2011 with s. 41 of Juvenile Justice (Care and Protection of Children) Act, 2000 entitle the appellant with the right to adoption of an Indian orphan child.
  2. To declare her as a legal guardian for an Indian orphan child under ss. 7 and 26 of the Guardianship and Wards Act, 1890 as per the made amendments.

Guidelines from Indian Adoption

Central Adoption Resource Authority framed a set of well-elaborated guidelines laid down by the Department of Social Justice and the Empowerment Ministry, Government of India referred to as the Guidelines for Adoption from India, 2006. The enacted Guidelines indicate the elaborate provisions to regulate the pre-adoption procedure of orphan children when declared by the Child Welfare Committee that the child is free for adoption. Once the deserted child is free for adoption the Guidelines of 2006 gives a certain step for the process of adoption which is laid below:

  • Enlisted Foreign Adoption Agency the applicants for adoption residing in foreign places should be registered with an Enlisted Foreign Adoption Agency a Central Authority in such a foreign country. That Central Authority will prepare Home Study Report. The Home Study Report will be valid only for a period of two years. The applicants should obtain the proper permission from the qualified authority for adopting a child in India. The adoption application report should be notarized and contained with all documents specified in Annexure – 2. If the reports are found in other foreign languages, then the original report must be accompanied by an attested translation in English. A copy of the application respective adoptive parents along with their copies of Home Study Report and other documents should be forwarded to Recognized Indian Placement Agency by the Enlisted Foreign Adoption Agency of that Country [2].
  • The position of Recognized Indian Placement Agency is to take receipt of the documents for which the Agencies in India make efforts to match a child who is legally free for Inter-Country adoption with the applicant for adoption. The Recognized Indian Placement Agency also has duty to inform the Enlisted Foreign Adoption Agency and the Central Adoption Resource Authority with proper reasons if no suitable match of made application for adoption is found within 3 months thereof.
  • When the child is declared free for Inter-Country adoption through Clearance by Adoption Coordinating Agency. Before Recognized Indian Placement, Agency offers to declare a child for Inter-Country adoption, it must be applied to the Adoption Coordinating Agency for assistance for placement in India. Such declared orphan child should be clearly and legally free for adoption.  Adoption Coordinating Agency of India will find a suitable Indian family for adoption within 30 days. On failure of finding a respective Indian family for an orphan child makes the child legally free for the Inter-Country Adoption. Adoption Coordinating Agency will issue a clearance certificate for Inter-Country adoption within 10 days in case of older children above 6 years, siblings or twins, and Special Needs Children as per the additional guidelines issued in this regard. If Adoption Coordinating Agency has not given the clearance certificate within thirty days on the 31st day, then it will be assumed that unless Adoption Coordinating Agency must find a clarified solution within the next 30 days [3].
  • Combining and pairing the progress of the Child Study Report with the Home Study Report of Foreign Prospective Adoptive Parent by Recognized Indian Placement Agency. After a successful matching or pairing, the Recognized Indian Placement Agency will forward the complete report progress as per Annexure 3 to Central Adoption Resource Authority for the purpose of issuance of No Objection Certificate. 
  • Issue of No Objection Certificate by Central Adoption Resource Authority. Recognized Indian Placement Agency can make an application in the case of foreign parents only after the Clearance Certificate is obtained. Thus, Central Adoption Resource will issue the No Objection Certificate within 15 days from the date of receipt of the adoption report progress is concluded in all manners of procedures. No Indian Placement Agency is entitled to file a petition as an application before the court for Inter-Country adoption without a No Objection Certificate obtained from the Central Adoption Resource Authority [4]
  • After obtaining the No Objection Certificate they can file a petition for adoption as a legal guardian for an orphan ward in the Court within 15 days. The Court may grant an order for the placement of the child with a Foreign Prospective Adoptive Parent. About directions of the Supreme Court, the Court that handles the appointment of a guardian may dispose of the case earliest within 2 months.
  • Then the Recognized Indian Placement Agency should apply in the Regional Passport Office to obtain an Indian Passport of a child. The respective Passport Officer shall grant with the Passport within 10 days of made application. After that, the VISA entry permit will be provided by the High Commission of the country for the child.
  • Then the adopted child can legally travel to the adoptive country. It is the duty of new adoptive parents to visit India and accompany the child in travel back to their country. The progress report of the child should be sent half-yearly as a Home Study Report until the adoption process is completely over and to ensure the adopted child is safe in the new country with newly adopted parents [5].

Related Provisions

Section 7 of the Guardians and Wards Acts deals with the Power of the Court to make an order with the title of guardianship to a person who legally fulfills and qualifies the procedures for adoption.

  • The s. 7(1) says that the Court is satisfied that it is for the welfare of a minor child that an order should be made:
  • Appointing a guardian of his person or property, or both, and
  • Declaring a person to be such a guardian,

      The Court may make an order accordingly to the circumstances and eligibility procedures of the made application [6].

  • In s. 7(2) an order under this section shall also refer to the removal of any guardian who has not been appointed by will or appointed or declared by the Court.

Section 26 of the Guardians and Wards Acts deals with the Removal of war from the jurisdiction.

  • The s. 26(1) confers a guardian of the person appointed or declared by the Court unless he is the Collector or is a guardian appointed by will or other instruments, shall not, without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed [7].
  • Then s. 26(2) refers to the leave granted by the Court under sub-section (1) may be special or general and may be defined by the order granting it [8].

There were two important developments made in the laws controlling the adoptions. The first important development is necessary to consider s. 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 was amended by act 33 of 2006 with sub-sections 2, 3, and 4 of s.41 of this act. The amendment with its effect from 22nd of August 2006 is much remarkable since under 41(3) the power which refers the Court to give a child in adoption upon satisfaction of various guidelines granted from time to time [9].

The second most important development with respect to the law regarding adoption is through passing the Juvenile Justice (Care and Protection of Children) Rules 2007 by repealing the Rules of 2001 of the same which was in force. A rule of 33(2) of the amendment act clarifies for all matters relating to adoption, the guidelines issued by the Central Adoption Resource Agency which should be notified by the Central Government under s. 41(3) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Another rule 33(3) under the sub-clauses from (a) to (g) provides a clear procedure for certifying an orphaned child to be free for adoption [10].

Likewise, rule 33(4) confers the steps for procedures to be adopted for renouncing a deserted child to be legally free for adoption. When such a renouncement is declared, all procedures with respect to the Guidelines of 2006 from Indian Adoption should be completed. With this aspect the decision of the Courts in Section 41(3) of the Juvenile Justice (Care and Protection of Children) Act, 2000 will take a step to ease in assisting the adoption of the respective orphaned child in a foreign country [11].

Related Cases

Lakshmi Kant Pandey v. Union of India, [(1984) 2 SCC 244] this case is to ensure that the child who is adopted to foreign country enjoys living and to be prevented from illegal activities of trafficking or conferring to abusive work or practiced with maltreatment by maintaining a progress report should be submitted by Home Study Report of that Country. And also the procedure of the law with respect to Inter-Country adoption, it may be noticed, was not only confined to hearing various organizations like the Indian Council for Child Welfare and Indian Council of Social Welfare by the issuance of appropriate notices but also the time period within which the proceedings filed before the Court are to stand decided.

 

Judgment

The Guidelines from the Indian Adoption of 2006 were repealed by the new set of enacted Guidelines of 2011 which came to effect from the 24th June of 2011. This guideline was established by the Department of Women and Child Development Ministry, Government of India based on the s. 41(3) of Juvenile Justice (Care and Protection of Children) Act, 2000. With the consent of the child to be adopted and the interest of the appellant to adopt Tina shows the much care taken on her by the appellant. The appellant also vested with the No Objection Certificate and in a good faith that every orphan child should be granted with a family which is also considered as an obligation of the United Nations. Though the single women more than 45 years of age, she as a family consisting of brothers, etc. and working as a Naturopathic Physician for the Washington Centre for Complementary Medicine. With the acceptance of care for the adopted Tina guaranteed by the appellant’s brother Mr. Philip Becker Jr. and his wife Ms. Linda Becker suppose any bad unforeseeable event occurs to the appellant. The acceptance of care is only to ensure the future of Tina is safeguarded.

Thus the amendment of rules of guidelines of Indian Adoption, 2011 with s. 41(3) of the Juvenile Justice (Care and Protection of Children) Act, 2000 considering the adoption of various grounds and considering the No Objection Certificate by the Central Adoption Resource Authority and considering the interest of care by the appellant in a good faith and protected future of Tina by the appellant’s brother and his wife the Supreme Court of India set-asides the order passed by the both Trial and High Courts of Delhi dated 17th of September 2010 and in FAO of dated 9th of July 2012, such that granted the appellant with the adoption of her lovable girl child Tina.

References

[1] https://www.legitquest.com/case/ms-stephanie-joan-becker-v-state-another/7a1ff#

[2] https://indiankanoon.org/doc/175104149/

[3] https://indiankanoon.org/doc/175104149/

[4] https://indiankanoon.org/doc/175104149/

[5] https://indiankanoon.org/doc/175104149/

[6] https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00047_189008_1523274313365&sectionId=43358&sectionno=7&orderno=8

[7] https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00047_189008_1523274313365&sectionId=43377&sectionno=26&orderno=27

[8] https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00047_189008_1523274313365&sectionId=43377&sectionno=26&orderno=27

[9] https://indiankanoon.org/doc/175104149/

[10] https://indiankanoon.org/doc/175104149/

[11] https://indiankanoon.org/doc/175104149/

[12] https://indiankanoon.org/doc/175104149/

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