Amrik Singh And Others v. Union Territory Of Chandigarh Through Its Principal Secretary And Others
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" ' ( % " ! = " ( 8 "CONSTITUTION OF INDIA Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. XXX XXX XXX (3) Nothing in this article shall prevent the State from making any special provision for women and children. XXX XXX XXX
39. Certain principles of policy to be followed by the State
XXX XXX XXX (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citi zens are not forced by economic necessity to enter avoca tions unsuited to their age or strength;
(f) that children are given opportunities and facilities to de velop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
XXX XXX XXX Article 45 "The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years."
XXX XXX XXX
Article 47 of The Constitution of India is one of the Directive Principles which directs the State to raise the level of nutrition and the standard of living and to improve public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of intoxicating drinks and drugs which are injurious to health.
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Requisites of a valid adoption.― No adoption shall be valid unless- (i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
XXXXX XXXXX XXXXX
9.
Persons capable of giving in adoption.― (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of sub section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption: Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
(3) * * * * * (4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself. (5) Before granting permission to a guardian under sub section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation.―For the purposes of this section― (i) the expressions "father" and "mother" do not include an adoptive father and an adoptive mother;
(ia) "guardian" means a person having the care of the person of a child or of both his person and property and includes― (a) a guardian appointed by the will of the child's father or mother, and (b) a guardian appointed or declared by a court; and (ii) "court" means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
10.
Persons who may be adopted.― No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:― (i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. 11.
Other conditions for a valid adoption.― In every adoption, the following conditions must be complied with:― (i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have
a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption: Provided that the performance of datta homam shall not be essential to the validity of an adoption."
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015.
2.
Definitions In this Act, unless the context otherwise requires,-
(1) "abandoned child" means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry;
(2) "adoption" means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child;
XXX XXX XXX (9) "best interest of child" means the basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well being and physical, emotional and intellectual development;
XXX XXX XXX
(14) "child in need of care and protection" means a childXXX XXX XXX (v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well being of the child; or (vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or XXX XXX XXX (viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or XXX XXX XXX
(31) "guardian" in relation to a child, means his natural guardian or any other person having, in the opinion of the Committee or, as the case may be, the Board, the actual charge of the child, and recognised by the Committee or, as the case may be, the Board as a guardian in the course of proceedings;
(42) "orphan" means a child- (i) who is without biological or adoptive parents or legal guardian; or (ii) whose legal guardian is not willing to take, or capable of taking care of the child;
XXX XXX XXX 3.
General Principles to be followed in administration of the Act.
The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:- XXX XXX XXX (iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to de velop full potential.
(v) Principle of family responsibility: The primary responsibil ity of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.
(vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.
(vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.
XXX XXX XXX Section 38 Procedure for declaring a child legally free for adoption.
1) In case of orphan and abandoned child, the Committee shall make all efforts for tracing the parents or guardians of the child and on completion of such inquiry, if it is established that the child is either an orphan having no one to take care, or abandoned, the Committee shall declare the child legally free for adoption:
Provided that such declaration shall be made within a period of two months from the date of production of the child, for children who are up to two years of age and within four months for children above two years of age: Provided further that notwithstanding anything contained in this regard in any other law for the time being in force, no first information report shall be registered against any biological parent in the process of inquiry relating to an abandoned or surrendered child under this Act.
(2) In case of surrendered child, the institution where the child has been placed by the Committee on an application for surrender, shall bring the case before the Committee immediately on completion of the period specified in section 35, for declaring the child legally free for adoption.
(3) Notwithstanding anything contained in any other law for the time being in force, a child of a mentally retarded parents or a unwanted child of victim of sexual assault, such child may be declared free for adoption by the Committee, by following the procedure under this Act. (4) The decision to declare an orphan, abandoned or surrendered child as legally free for adoption shall be tak en by at least three members of the Committee. (5) The Committee shall inform the District Magistrate, the State Agency and the Authority regarding the number of children declared as legally free for adoption and number of cases pending for decision in the manner as may be prescribed, every month.
XXX XXX XXX Section 56 Adoption (1) Adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children, as per the provisions of this Act, the rules made thereunder and the adoption regulations framed by the Authority. (2) Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.
(3) Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956).
(4) All inter country adoptions shall be done only as per the provisions of this Act and the adoption regulations framed by the Authority.
(5) Any person, who takes or sends a child to a foreign country or takes part in any arrangement for transferring
the care and custody of a child to another person in a foreign country without a valid order from the District Magistrate, shall be punishable as per the provisions of section 80.
Section 57 Eligibility of prospective adoptive parents. (1) The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him. (2) In case of a couple, the consent of both the spouses for the adoption shall be required.
(3) A single or divorced person can also adopt, subject to fulfillment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.
(4) A single male is not eligible to adopt a girl child. (5) Any other criteria that may be specified in the adoption regulations framed by the Authority.
XXX XXX XXX Section 63 Effect of Adoption A child in respect of whom an adoption order is issued by the District Magistrate, shall become the child of the adoptive parents, and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, for all purposes, including intestacy, with effect from the date on which the adoption order takes effect, and on and from such date all the ties of the child in the family of his or her birth shall stand severed and replaced by those created by the adoption order in the adoptive family:
Provided that any property which has vested in the adopted child immediately before the date on which the adoption order takes effect shall continue to vest in the adopted child
subject to the obligations, if any, attached to the ownership of such property including the obligations, if any, to maintain the relatives in the biological family.
THE ADOPTION RULES 2017 XXX XXX XXX 3.
General principles to be followed in administration of Act.- The Central Government, the State Governments, the Board, the Committee, or other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:- (i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.
(ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights.
(iii) Principle of participation:
Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child.
(iv) Principle of best interest:
All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. (v) Principle of family responsibility:
The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.
(vi) Principle of safety:
All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.
(vii) Positive measures:
All resources are to be mobilized including those of family and community, for promoting the well being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act. (viii) Principle of non stigmatizing semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child.
(ix) Principle of non waiver of rights:
No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non exercise of a fundamental right shall not amount to waiver.
(x) Principle of equality and non discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child.
(xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judi cial process.
(xii) Principle of institutionalisation as a measure of last resort:
A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.
(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re united with his family at the earliest and to be restored to the same socioeconomic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.
(xiv) Principle of fresh start:
All past records of any child under the Juvenile Justice system should be erased except in special circumstances. (xv) Principle of diversion:
Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.
(xvi) Principles of natural justice:
Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.
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"In reference to the above cited subject, it is submitted that a visit was conducted on 11 12 2023 at residence of Gurcharan Singh Virdi and Ms. Kiran Virdi regarding submission of report with respect to the social/financial status of the Petitioners and suggestions as to whether the requirements for giving a child in adoption would be met on socio economic evaluation of Petitioners.
Petitioner no. 4 and 5 own and live in a 9 maris house in Phase 10 Mohali. It is a double story house and used by Petitioners for their own family only i.e. both floors are utilized by the family.
Petitioner no. 4 Mr. Gurcharan Singh Virdi is an advocate at Chamber no. 25, District Courts Complex, Sector 43, Chandigarh Petitioner no. 5, Ms. Kiran Virdi W/o Petitioner no. 4 is a house wife.
Petitioner no. 4 own property named National Saw Mill at plot # 12, Timber Market, Sector 26, Chandigarh. (ownership certificate is attached) Petitioner no. 4 jointly owns a 14 marla house with his brother in Panchkula, Haryana As per the latest ITR furnished by the Petitioner no. 4, his annual income is Rs.18,82,090/ .
Petitioner number 4 and 5 own 2 cars.
Both: Petitioners no. 4 and 5 are of Sikh religious beliefs. They have 2 full time (residential) maids for household chores and as care taker of children They have one more daughter named Mehar. She is 2 year old and was born through surrogacy.
Both girl children go to a school Cute Cubs in sector 33 A Chandigarh.
The residence/home of Petitioner no. 4 and 5 lavishly decorated and maintained.
The immunization card of Rxxxx was also seen. Her consultation and immunization is done in Chaitanya Hospital Sector 44, Chandigarh.
Both Petitioner no. 4 and 5 come across as happy and healthy minded couple.
Deeming the above, it can be stated that Petitioner no. 4 and 5 belong to upper financial strata society, economically/ financially they are very sound to provide a fulfilling life to their children. All the needs of child/children can be met easily Petitioner no 4 and 5. It is for your information and further necessary action please."
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