Maria Chaya Schupp v. Director General of Police (Karnataka)
2009-10-14
ANAND BYRAREDDY
body2009
DigiLaw.ai
Judgment : Heard the Counsel for the parties. 2. The facts of the case are as follows: The petitioner is a German national and is said to be residing with her adoptive parents in Germany. The petitioner claims that as a child she was an inmate of the institution known as Society for Sisters of Charity Nirmala Social Welfare Centre, Respondent No.5 herein. It is a Child Welfare Agency. The petitioner claims that she recollects having grown-up at the said centre. It is said that when the petitioner was six years old, she was given up for inter-country adoption by the Respondent No.5-Institution. She is said to have been taken in adoption by Shri Wolfgang Schupp and Smt. Ingrid Schupp of Germany in March 1981. They had taken the assistance of one Smt. Carla Wiedeking and her Adoption Agency M/s. Pro Infante, in Germany. The petitioner was 32 years old on the date of the petition and is in search of her biological mother. The petitioner has little information of her birth and her parents. She believes that her biological mother had placed her in the care of Respondent No.5 Institution for her schooling only and not for being sent out of the country in adoption. The petitioner suspects that she was possibly kidnapped and then given up for adoption with the active assistance of Respondent No.5-Institution. The petitioner has arrived at these conclusions given the concerted effort to conceal material records and the sequence of events leading to her adoption-which is mired in controversy, leaving even her adoptive parents in confusion-as they had placed faith in various third-parties, in India and abroad, in adopting the petitioner. The petitioner has in her possession documents indicating her date of birth differently, she is not sure whether her date of birth is 24.3.1976 or 8.12.1975. That is from information furnished to her adoptive parents by the German Agency Pro Infante-prior to her adoption. 3. It is the petitioner’s contention that she has learnt in retrospect that respondent No.5 has a strong nexus with one Shri Maxim Lobo, a practicing Advocate who had retired as a District and Sessions Judge, who specialized in Inter-country adoptions. And it is evident that Shri Lobo had engineered and instituted proceedings in a Court at Madurai to enable the petitioner to be adopted possibly through a willing impersonator on a false and misleading petition.
And it is evident that Shri Lobo had engineered and instituted proceedings in a Court at Madurai to enable the petitioner to be adopted possibly through a willing impersonator on a false and misleading petition. There is no Deed of Relinquishment by her biological mother giving up the petitioner in adoption. The petitioner’s efforts to ascertain whether there was indeed such a relinquishment deed have not been fruitful either through the German Adopting Agency or through the fifth respondent-Institution. The petitioner on being stone-walled by Respondent No.5, which failed to co-operate with her in ascertaining the truth-has approached the jurisdictional Police at Ullal, Mangalore of the refusal by Respondent No.5 to provide her with the information. She has also approached the Director, Women and Child Welfare, Mangalore in this regard. But it has been in vain. It is therefore the petitioner’s case that Respondent No.5 is clandestinely and diabolically engaged in placing young children for inter-country adoption through unscrupulous elements and Institutions-amounting to trafficking in children. The petitioner’s plight and her search for details of her mother has been widely reported in several news papers. The petitioner claims that she has psychological reasons for the urge to know about her biological mother. The petitioner is not the first to come in search of one’s roots. It is the petitioner’s case that there are regular news reports of people such as the petitioner who have successfully re-united with their biological parents. A person’s right to know of one’s biological parents is well entrenched in law in most civilized countries around the world. It is the petitioner’s contention that Respondent No.5 is feigning ignorance of the knowledge of the biological mother of the petitioner-only in order to cover up its nefarious and illegal role in kidnapping and placing the petitioner for inter-country adoption. It is in this background that the present petition is filed. 4. The Counsel for the petitioner contends that there is inaction on the part of Respondents 2 and 3 in not carrying out further investigation on the petitioner’s complaint and not taking any steps to secure the records pertaining to the petitioner’s birth and her biological mother as well as the mode adopted in respect of her adoption. The petitioner is thus deprived of her right to secure valid information and hence the intervention of this Court is warranted.
The petitioner is thus deprived of her right to secure valid information and hence the intervention of this Court is warranted. It is further contended that the stance of the above respondents that the relevant records are confidential information and that unless appropriate orders are obtained from a competent Court-the same cannot be provided runs counter to the dictum of the apex Court in the case of Lakshmikant Pandey vs. Union of India (1984) 2 SCC 244 . Guidelines have been issued in the said decision to regulate inter-country adoption of Indian children. Respondent No.5 has acted in violation of the same and hence requires to be brought to book. It is in respect of the vile practices, involving children, indulged in by Institutions such as Respondent No.5 that the apex Court has time and again reiterated the need for scrupulously following guidelines issued in Lakshmikant Pandey in AIR 1986 SC 274, AIR 1987 SC 232 , AIR 1992 SC 118 . It is contemplated that the inaction of the Respondents No.1 to 4, would result in permitting trafficking in inter-country adoptions by Institutions such as Respondent No.5-in gross violation of Article 23 of the Constitution of India. It is contended that the denial of information to the petitioner, though a German Citizen, is a denial of her right to life as understood by the apex Court in its interpretation of the tenor of Article 21 of the Constitution of India. It is also contended that the petitioner believes herself to be a Hindu and Respondent No.5 which was aware of the same has acted contrary to Section 9 of the Hindu Adoption and Maintenance Act, 1956. 5. The Counsel for the petitioner has placed extensive material pertaining to the subject of a child’s right to know her origins, in support of the petition. And therefore, seeks a direction to Respondents 1 to 3 to investigate into the complaint of the petitioner against Respondent No.5 and others involved and to probe their involvement in giving up children for inter-country adoption. 6. Respondent No.5 has entered appearance through Counsel and has filed statement of objections to contend that the allegations in the petition are vague and fanciful. It is stated that respondent No.5 is recognized by the Ministry of Social Justice and Empowerment, Government of India, a Child Welfare Agency recognized for intercountry adoption.
6. Respondent No.5 has entered appearance through Counsel and has filed statement of objections to contend that the allegations in the petition are vague and fanciful. It is stated that respondent No.5 is recognized by the Ministry of Social Justice and Empowerment, Government of India, a Child Welfare Agency recognized for intercountry adoption. It is stated that prior to 1984, no formal recognition or licence was required by Institutions or licence was required by Institutions to engage in adoption work. That ordinarily a child was surrendered by an unwed mother or destitute parents in favour of an Institution. Similarly, infants abandoned at public places would also be brought to such Institutions as Respondent No.5. Enquiries would be made wherever possible about the reasons for such surrender-but no written records were being maintained. The children were offered for adoption to adoptive parents in India and abroad and were generally given in adoption only after obtaining necessary orders of a competent District Court. Prior to 1984-obtaining a document of surrender was not mandatory. There was no statutory enactment providing for adoption of Indian children by foreign parent, except the provisions of the Guardians and Wards Act, 1890. However, in Lakshmi Kant Pandey’s case, the apex Court has laid down procedural safe-guards in a foreigner proposing to take a child in adoption. In accordance with directions of the apex, Court the Government of India, Ministry of Social Welfare set up on 3.7.1990, the Central Adoption Research Agency to act as a clearing house of information in regard to placing children for in-country and intercountry adoption. And further the Juvenile Justice Act, 1986 was repealed and in its place, Juvenile Justice (Care and Protection of Children) Act, 2000 was passed. Hence insofar as the present petition is concerned, the petitioner having been taken in adoption in the year 1981, was at a time when there were no normative guidelines prescribing the procedure for adoption by foreign adoptive parents. Respondent No.5 states that it has no records of the petitioner at or about the time that the petitioner was said to have been placed in adoption with her German adoptive parents. The respondent also states that it has no records of the whereabouts of the biological mother of the petitioner.
Respondent No.5 states that it has no records of the petitioner at or about the time that the petitioner was said to have been placed in adoption with her German adoptive parents. The respondent also states that it has no records of the whereabouts of the biological mother of the petitioner. The petitioner was duly informed of this position when she made enquires with Respondent No.5, however, the petitioner not being satisfied had obtained a search warrant through the Police against the respondent apart from publicizing her claim widely in the media. Respondent No.5 therefore asserts that it has no information in respect of the petitioner. The petitioner has insisted on examining the records maintained by Respondent No.5 in respect of other children, which was not permitted. The petitioner having taken recourse to these proceedings is hence not entitled to any relief-especially in the absence of material evidence to demonstrate that Respondent No.5 was in fact involved in the alleged illegal adoption of the petitioner. However, this Court having directed Respondent No.5 to produce records relating to children who were staying at the institution prior to 1981, Respondent No.5 had produced copies of certain records, namely, a) An Extract of the Case History Register of Creche for the period 1.4.1986 to 23.1.1995 b) A Register of Baptisms c) The Admission Book of Women from 14.1.1983 d) Medical records of some children from 1989. The petitioner had thereupon sought for direction to Respondents 1 and 2 to carry out a search of the premises of Respondent No.5 for the relevant records-since all the records produced as above were not relevant as they did not pertain to the period that the petitioner stayed at the Institution. By a further order dated 6.2.2009, this Court directed the fifth respondent to permit the petitioner to inspect the records relating to her being handed over to the custody of the fifth respondent and making over her custody to one Smt. Selvam Raj Kennet, the petitioner in O.P.18/1981 before the Court of the District Judge, Madurai. Accordingly, an inspection has been conducted on 28.2.2009. The petitioner however, complains there was no progress as Respondent No.5 had not furnished the complete records but only selective records and hence the petitioner is yet aggrieved.
Accordingly, an inspection has been conducted on 28.2.2009. The petitioner however, complains there was no progress as Respondent No.5 had not furnished the complete records but only selective records and hence the petitioner is yet aggrieved. In above circumstances, the petitioner having pursued her quest to trace her origins with a single-minded devotion and having approached this Court as a last resort is not to be spurned on technicalities, or even on a question of jurisdiction. In this regard, the effort of the counsel for the petitioner, Ms. Kothari in placing before this Court International Declarations, authoritative decisions of Courts in Europe and research material, leave no doubt that the petitioner is seeking to enforce a right which is well recognized. The right to know one’s origins is a dimension of the broader right to ascertain and preserve one’s identity. Identity is a complex concept which unsurprisingly has never been defined legally. In a nutshell, identity is “what we know and what we feel. It is an organizing frame work for holding to-gether our past and our present and it provides some anticipated shape to future life”-(See: Samantha Besson in an article: Enforcing the child’s Right to know her origins). However, the scope of this writ petition can only be confined to how best this Court could intervene to help the petitioner in her search and whether directions issued to any of the respondents would result in the petitioner being able to reach her goal. Hence, the larger issues sought to be raised, of possible child trafficking and the need for better safeguards and policing the abuse of inter-country adoptions of Indian children are not addressed. 7. To summarise the facts and circumstances as narrated by the parties in their turn: The petitioner was brought to the Respondent No.5-Institution when she was six years old by her mother for her schooling, but Respondent No.5 kidnapped her and gave her in adoption to a German couple in Germany by recourse to a petition under the provisions of the Guardians and Wards Act, 1890, in Original Petition 18/1981. The petitioner upon attaining adulthood and when she was 30 years old, she returned to trace her biological mother. She approached Respondent No.5 for details of her biological mother. She was refused any information. Therefore, the present petition. Respondent No.5 denies that it has in its possession any document pertaining to the petitioner.
The petitioner upon attaining adulthood and when she was 30 years old, she returned to trace her biological mother. She approached Respondent No.5 for details of her biological mother. She was refused any information. Therefore, the present petition. Respondent No.5 denies that it has in its possession any document pertaining to the petitioner. This Court by an order dated 6.2.2009, having directed Respondent No.5 to permit the petitioner to inspect records relating to her, if any in its custody, the petitioner has inspected the records furnished to her. Again on 18.6.2009, this Court directed Respondent No.5 to make a thorough search of the records at Nirmala Chapel where the petitioner was said to have been baptized. As well as the records of a dispensary where the burn injuries, indicated in her adoption papers were said to have been treated and also to ascertain from whom the fifth respondent had disseminated the particulars of the petitioner to the adopting agency Pro infante of Germany. In response to the above order dated 18.6.2009, Respondent No.5 has obtained a copy of the petition in OP 18/1981 before the Maduari Court and has produced the same along with Additional Statement of Objections dated 4.8.2009. It is seen that the petitioner was represented by one smt. Selvamraj Kennet those proceedings before the Madurai Court. As per that petition the petitioner was abandoned when she was ten months old. She was said to have been entrusted to the custody of Smt. Kennet of Madurai, by the present petitioner’s unwed mother. In those proceedings, one Shri Maxim Lobo, District and Sessions Judge (Retired) has acted as the Power-of-Attorney holder for the adoptive parents of the present petitioner. In a letter addressed to this Court by the adoptive mother of the present petitioner-the lady has declared that she is confused by the two versions which are evident from the available record. One version was that the petitioner’s biological mother was dead. The second version was that the petitioner’s biological mother was alive and it was she had placed the petitioner in the custody of respondent No.5 for her schooling.
One version was that the petitioner’s biological mother was dead. The second version was that the petitioner’s biological mother was alive and it was she had placed the petitioner in the custody of respondent No.5 for her schooling. While an order of a German Court, passed at the instance, the petitioner’s adoptive parents to comply with the adoption law of Germany-declares that the petitioner was an illegitimate child of an unmarried Indian named Miriam, whose surname was not known and that the child’s paternity could not be determined. The material documents on which the petitioner places reliance to hold that Respondent No.5 was the Institution which had her custody and therefore being aware of particulars of her birth and the existence or otherwise of her biological mother are Annexure-B to the application of the petitioner dated 29.1.2009-which is an undated document from the records of Pro-Infante-the German Adoptive Agency which is said to have mediated the adoption of the petitioner which indicates the petitioner’s location as Respondent No.5-Institution as well as Annexure-C thereto wherein the same information is repeated. And a Greeting Card bearing the seal of Respondent No.5 addressed to the adoptive parents of the petitioner enquiring about the welfare of the petitioner and signed by one Sister Caroline Carrera. This document is produced along with Memo dated 26.8.2009. 8. In the above background which is but a vague and inconsistent history of the petitioner’s birth and given the sheer lapse of time of about three decades in the petitioner having embarked on her mission of discovering her origins-even assuming that this Court could exercise its writ jurisdiction over Respondent No.5 through the indirect medium of the other respondents, to make a discourse of all its records-the admitted circumstance that there is an order of the District Court of Madurai in OP 18/1981 dated 18.3.1981, which has attained finality and which has assumed certain facts pertaining to the petitioner and her parentage-the same cannot be ignored either by the petitioner or by this Court. The adoptive parents of the petitioner have been party to those proceedings through their Power of Attorney holder. The adoptive mother now seeking to negate the same and in her letter to this Court claiming that she believes the petitioner’s version which appears to be more and more realistic by the day is not to be acted upon by this Court.
The adoptive mother now seeking to negate the same and in her letter to this Court claiming that she believes the petitioner’s version which appears to be more and more realistic by the day is not to be acted upon by this Court. While sympathizing with the turmoil, the petitioner possibly is undergoing-the petition is dismissed.