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DELHI HIGH COURT
Indermeet Kaur, J.
Tibetan Childrens Village School —Petitioner
versus
Karma Lama & Anr. —Respondents
CM(M) 579 of 2015 and C.M. Nos.11006 of 2015, 31084 of 2015, 31085 of 2015, 2550 of 2016 and 29897 of 2016
Decided on 18.11.2016
For the Petitioner:Mr. Jagdeep Kishore, Mr. Naresh Mathur and Ms. Rekha Gupta, Advocates
For the Respondent Nos.1 and 2:Mr. Giriraj Subramanium, Mr. Simarpal Singh Sawhney and Mr. Sidhant Krishan Singh, Advocates
For the Respondent No.3:Mr. Tenzing Tsering and Mr. Tenzin Namgyal, Advocates
For the Respondent No.4:Mr. Kapil Kumar Nim, Advocate
Headnote:(a) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 2(k) – Master Tenzin brought from Nepal – Natural and biological parents not known – Held an orphan u/s 2(K). (Para 27)
(b) Guardians and Wards Act, 1890 – Sections 7, 8, 9, 10 & 11 – Petitioner accepting sponsorship for Master Tenzin from respondents 1 and 2 – Allowing them to take the child out of country for two months – Issuing I-D card of the child with repsondnet 1 as his father – Indicating intention of petitioner to give the child in adoption to respondents 1 and 2 – Guardian and Wrads court appointing respondents 1 and 2 guardian of the child – Appeal thereagainst before High Court of Himachal Pradesh consciously withdrawn by petitioner – Appointment of respondents 1 and 2 as guardian of the child attaining finality. (Para 30, 37, 40)
(c) Hindu Adoption and Maintenance Act – Sections 9(4) & (5) – Guardian of a child of unknown parentage may give the child in adoption to any person including the guardian himself, subject to permission of the Court – Court is obliged u/s 9(5) to ensure the adoption to be for welfare of the child after considering the wishes of the child – No infirmity in Family Court order. (Para 43, 45, 46)
(d) Family Court Ac, 1984 – Section 7 – Family court has the same jurisdiction which is exercisable by any District Court or any subordinate Civil Court – Family court competent to adjudicate on guardianship of a person or custody of a minor – Further section 8 excludes jurisdiction of all other courts in such matter. (Para 50, 51, 72)
1 (1998) DMC 266; 2008 (1) CARLJ 647; (1984) 2 SCC 244 – Distinguished impliedly
(e) Family Court Ac, 1984 – Sections 7 & 8 r/w Sections 9 (4) & (5) of the HAMA; Sections 41 (2)(3) of the JJ Act, 2000 and with Rule 33 (5) of the JJ Rules, 2007 – Family Court has the same jurisdiction which is exercisable by any District Court or any other sub-ordinate Civil Court – Family Court specifically clothed with jurisdiction to deal with matters of adoption (Section 41) including that of an orphan child – Held, Family Court was well within its domain to exercise jurisdiction in matters of adoption; its jurisdiction was in no manner ousted by the subsequent enactment of JJ Act, 2000. (Para 58)
(f) CARA Guidelines, 2015 – Rule 53 – Rwepealing Guidelines governing Adoption of Children Rules, 2011 – Respondents seeking NOC in 2016 after comning into force of 2015 guidelines – CARA issuing NOC in accoerdance with the guidelines – No irregularity. (Para 66)
(g) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 60 – Ex-post facto approval of NOC – Applications for approval/NOC should be processed in a child friendly manner and within a fixed time frame. (Para 67)
(h) Adoption – Inter-country adoption – Master Tenzin’s natural and biological parents not known – The adoption could not be “inter-country direct adoption”. (Para 75)
(2004) 1 SCC 382 – Referred
Result: Appeal dismissed.
Indermeet Kaur, J.—The petitioner before this Court is Tibetan Children’s Village School (TCV). It is functional from upper Dharamshala, Himachal Pradesh. This petition has been filed through its General Secretary.
2. This petition concerns the adoption rights of a minor child namely Master Tenzin Tsering (in short ‘Tenzin’). The averments in the writ petition disclose that a lady namely Tashi Choedon brought with her a tibetan male child namely Tenzin when he was 1- ½ years old to the TCV. She had brought him from Nepal. As per the information furnished to the TCV, the child was born in Nepal on 03.03.2007. His natural and biological parents were not known. Tenzin was enrolled in the petitioner school on 13.08.2008.
3. Respondents No. 1 & 2 are Karma Lama and Paola Pivi. They are permanent residents of United States. At the time of filing of this petition, they were residing temporarily in Northern India. Respondents No.1 & 2 approached the petitioner for sponsoring the education of Master Tenzin. The petitioner accepted the sponsorship offer and received $480 for a period of one year as sponsorship charges from respondents No.1 & 2. This was in August, 2012. It was made clear to respondents No.1 & 2 that they could meet the child periodically and they could also take the child out for winter vacations which fell between 25.12.2012 and 24.02.2013. The condition was that the child had to be brought back before the end of the winter vacation or earlier, if need be.
4. In the second week of January, 2013, Tashi Choedon came to the petitioner institute with a request to take the child back to New Delhi for a possible relocation in France. The petitioner informed respondents No.1 & 2 asking them to bring back Master Tenzin on 13.01.2013. Respondents No.1 & 2 visited the school of the petitioner on 13.01.2013. They were un-accompanied with Master Tenzin. They agreed to bring back Master Tenzin to the petitioner school but thereafter they disappeared. They in fact lived at Dharamshala and shifted to New Delhi without informing their whereabouts to the petitioner.
5. On 17.01.2013, the petitioner learnt that respondents No.1 & 2 had approached the National Commission for Protection of Child Rights (NCPCR) and had obtained an ex-parte order restraining the child from being forcibly taken to France or any place outside India.
6. On 22.01.2013, respondents No.1 & 2 filed a guardianship petition under Sections 7, 8, 9, 10 & 11 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act of 1890). They wished to obtain the custody of the minor child. This petition was filed before the Senior Civil Judge, Senior Division, Dharamshala. The High Court of Himachal Pradesh transferred the case to the Court of Senior Civil Judge, Shimla who on 11.12.2014 while exercising the powers of the District Judge appointed respondent No.1 as the guardian of Master Tenzin. Tashi Choedon had been impleaded as respondent No.4 being the adoptive mother of the minor but before she could be heard, her name was deleted and thus she did not have the opportunity of contesting the proceedings. The petitioner had however contested the petition.
7. The petitioner aggrieved by the order passed by the Guardian Court (11.12.2014) preferred an appeal before the High Court of Himachal Pradesh at Shimla. This appeal was taken up for hearing after its admission on 07.05.2015. Respondents No. 1 & 2 were also served. The petitioner had in fact moved an application on 04.06.2015 before the High Court of Himachal Pradesh seeking a direction from restraining respondents No.1 & 2 from removing the child outside India. This appeal was however subsequently withdrawn on 21.08.2015 by the petitioner.
8. The petitioner, thereafter, learnt that respondents No.1 & 2 had approached the Principal Judge, South-East, Family Court Saket and in proceedings under Section 9 (4) of the Hindu Adoption and Maintenance Act (hereinafter referred to as the ‘HAMA’), they obtained
