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2012 DIGILAW 4399 (MAD)

Mary Rani Swamy v. .

2012-10-18

K.CHANDRU

body2012
Judgment This Original Petition is filed by the petitioner under Section 41(6) of the Juvenile Justice (Care and Protection of Children) Act, 2000 seeking that she may be permitted to adopt the minor girl child Jency Jothika, born on 20.12.1999 and for declaration that the minor child is entitled to legal status of a biological child with all rights of succession and inheritance from the petitioner. 2. The O.P was admitted on 11.09.2012. When the matter came up on 18.10.2012, the petitioner examined herself as P.W.1. It is the stand of the petitioner that she is the daughter of N.N. Swamy and N.L. Lakshmi. She has two more sisters. Her father died long back and her mother is alive. The petitioner got married on 10.02.1991 to one A.E. Rego. Her marriage life was not successful. She was deserted by her husband since the year 1995. At present, she is working as a Nursing Officer in the Military Hospital at St. Thomas Mount. She does not have any issues out of her marriage. The petitioner's sister Mrs. Margret Prema and her husband W. Gnana Soundararajan has a daughter by name Jency Jothika, who was born on 20.12.1999. The minor child is a physically challenged girl. 3. During the year 2004, the petitioner decided to adopt the said minor child and requested her sister to give her child in adoption. Her sister and her husband consented for her request. Accordingly, an affidavit was executed by the biological parents of the minor child on 02.05.2004 before the Notary public. But, the petitioner was told that such a course of action is not permissible and that she was advised to go through the legal process. It was because of this reason, the petitioner filed such a petition. The petitioner also stated that as a Nursing Officer, she is drawing a salary of Rs.4.50 lakhs per annum. She owns a house and has sufficient bank deposit. The house is well equipped and has got all facilities. She has sufficient mental, physical and financial resources to take the guardianship and adoption of the minor Jency Jothika and she is also anxious to share these wealth, love and affection. She also declared that she will take care of the child. The petitioner is well placed and also the maternal aunt of the minor child. She has got proper atmosphere to bring up the child. 4. She also declared that she will take care of the child. The petitioner is well placed and also the maternal aunt of the minor child. She has got proper atmosphere to bring up the child. 4. In her deposition given as P.W.1, she stated that the birth certificate of the minor showing the date of birth as 20.02.2001 was marked as Ex.P.1. The parents of the minor child had executed an affidavit on 02.05.2004 stating that they have no objection to give the child in adoption, which was marked as Ex.P.2. The parents of the minor child, i.e., M/s. W. Gnana Soundararajan and Mrs. Margret Prema were present at the time of recording evidence. She also has property at Tanjore. The sale deed standing in her name relating to the property was marked as Ex.P.3. The minor child is also mentally retarded to an extent of 90%. The original passbook on a National Identity Card with disability certificate was marked as Ex.P.4. The planning permission and building permission in respect of the property was marked as Ex.P.5. Her salary certificate was marked as Ex.P.6. The house tax receipt of the property at Tanjore was marked as Ex.P.7. The original serving certificate received from the Commandant, Military Hospital was marked as Ex.P.8. Ex.P.9 is the photocopy of the bank pass book account maintained by the petitioner with the State Bank of India, HVF Branch, Avadi. The photograph of the minor child along with the CD was marked as Ex.P.10. A home study was conducted in respect of the petitioner which was marked as Ex.P.11. The petitioner also gave a declaration of willingness to adopt the child which was marked as Ex.P.12. 5. In the present case, admittedly, the petitioner is a Christian. Under Section 41(1), it is stated that the primary responsibility for providing care and protection to children shall be that of his family. But under Section 41(2), it has been stated that adoption can be resorted to for rehabilitation of children who are orphan, abandoned or surrendered through such mechanism as may be prescribed. The Central Government has framed rules known as Juvenile Justice (Care and Protection of Children) Rules, 2007. Rule 33 provides for procedure for adoption. Rule 33(4) provides for the method by which surrendered children can be made for adoption. The Central Government has framed rules known as Juvenile Justice (Care and Protection of Children) Rules, 2007. Rule 33 provides for procedure for adoption. Rule 33(4) provides for the method by which surrendered children can be made for adoption. But however, the document produced by the petitioner in Ex.P.2 cannot be said to be a surrendered document. But at the same time, both parents have stated that they had given their daughter Jency Jothika on adoption to the petitioner at Velankanni Church on 02.05.2004. 6. It must be noted that an Indian Christian do not have personal law which permits adoption of a child and also with a right to succeed to the estate of such adoptive parents. But this court vide judgment in R.R. George Christopher – in re. reported in 2009 (8) MLJ 309 has upheld the right of Christian parents in adopting the child after referring to the provisions of the Juvenile Justice Act, 2000, more particularly Section 41. Therefore, there is no difficulty in granting the child in adoption to the petitioner. Further, the marital status of the petitioner is also again a question which has to be considered. As stated by the petitioner, though she married, her husband deserted her since the year 1995 and she is living single. Under Section 41(6)(a), it is provided that the court can allow a child to be given in adoption to a person irrespective of the marital status. Therefore, it does not require the consent of the deserted husband of the petitioner. The petitioner has shown her credentials in bringing up the child. As told by the petitioner, the child is physically challenged and mentally retarded and very rarely a person will come forward to adopt such a child. The court also had an occasion to see the child in court. Since the biological parents have expressed their desire to give their child in adoption, it could be technically considered as a surrender of the child. The petitioner is also capable of adopting the child in terms of Section 41(6)(a). This court is also satisfied with the credentials of the child. 7. In the light of the above, this Original Petition is allowed as prayed for. The petitioner is appointed as an adoptive parent of the person of the minor female child Jency Jothika.