: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.41 OF 2005 IN GUARDIANSHIP PETITION NO.100 OF 2004 1. Zaveed Pharukhi 2. Shirlina Mohammed, Both having their residence at 1720, Crownover Road, Houston Texas 77080 and presently at C/o Pramila Farooqui, 198, Aram Nagar, Part II, Versova Road, Andheri (West) Mumbai. 3. Abdul Kadir Karim Shaikh 4. Zakiyab Abdul Kadir Shaikh, Both permanently residing at Room No.1, Ganesh nagar, B.J. Road, Bandstand, Bandra (West), Mumbai - 50. ....Appellants Original Petitioners Mr.Riyz I. Chagla with Mr.S.N. Vimadalal i/b Vimadalal & Co. for the Appellant. Mrs.Madhavi Diwan - Amicus Curie. CORAM : A.P. SHAH AND S.J. VAZIFDAR, JJ. DATED : 24TH FEBRUARY, 2005. ORAL JUDGMENT (PER S.J. VAZIFDAR, J.) : 1. This is an Appeal against the order of the : 2 : learned single Judge dated 30th November, 2004, dismissing the Appellants’ Petition. The Appellants have filed the Petition for an order declaring Appellant Nos.1 and 2 as guardians of the ward viz. newly born baby boy namely FARAZ (formerly known as "Sohail") ; for an order declaring that Appellant Nos.1 and 2 have the legal exclusive and valid custody of the said child and for an order declaring that Appellant Nos.1 and 2 as such will be entitled to take him out of the country to their place of residence. 2. Appellant No.4 is the wife of Appellant No.3. Appellant No.2 is the wife of Appellant No.1. 3. Appellant No.1 is a citizen of India. Appellant No.2 is a citizen of the United States of America (U.S.A.). Appellant Nos.1 and 2 reside in U.S.A. At present they reside in Canada and desire to take the child to Canada. Appellant Nos.1 and 2 were married on 2st January, 1998. Appellant Nos.1 and 2 have no children. During their visits to Mumbai, they used to stay with the brother-in-law of Appellant No.2 one Subhash Ghai. One Aasia was working as a domestic servant at the said Subhash Ghai’s residence for several years. She was aware that Appellant Nos.1 and 2 did not have children and were desirous of adopting : 3 : a child. Aasia also knew Appellant Nos.3 and 4. She was aware that Appellant Nos.3 and 4 had a fourth child i.e. the said child and that they were finding it difficult to provide for him. Appellant No.3 is a labourer who mainly does household chores. Appellant No.4 is a housewife. Appellant Nos.3 and 4 have had no formal education and are illiterate. Their income is extremely low. In addition to the said child, Appellant Nos.3 and 4 also have three other children viz. Roobina, Farook and Iqbal born on 13th April, 1992, 8th August, 1994 and 28th May, 1999 respectively. It is stated that they are not in a position to maintain all the children. They were informed by Aasia that Appellant Nos.1 and 2 were desirous of adopting a child. Appellant Nos.3 and 4 were unable to look after even the first three children. It is submitted that they are finding it difficult to provide for the fourth child. They therefore, considering the welfare of the child, consented and agreed to give the said child in adoption to Appellant Nos.1 and 2. 4. In the circumstances, admittedly with the consent and free will of Appellant Nos.3 and 4, Appellant Nos.1 and 2 adopted the said child by a ceremony as per their custom on 29th May, 2004. : 4 : 5. There is no doubt as to financial ability of Appellant Nos.1 and 2 to provide for and take adequate care of the said child. Appellant Nos.1 and 2 are collectively worth about US Dollar 4,000,000/-. They have produced several documents in respect of their financial status which we will refer to shortly. From the record we are also satisfied that Appellant Nos.1 and 2 are persons of good character with a stable relationship. They will certainly be able to provide a balanced, comfortable, conducive environment for the growth and development of the child. 6. That Appellant Nos.3 and 4 have willingly and voluntarily consented to give the said child in adoption to Appellant Nos.1 and 2 is also clear. We hasten to add that while this aspect certainly weighed with us in allowing this Appeal and therefore the Petition, it was incumbent upon us to satisfy ourselves on certain crucial and important aspects which we shall advert to after referring to various documents referred to and relied upon by the parties. 7. Appellant Nos.1 and 2 produced various documents as enumerated below :- : 5 : a). Their personal photographs. b). Their passports. c). Their marriage certificate. d). An application to the Canadian Authority to sponsor a child in the family by Appellant No.2. It was for the purpose of immigration to Canada. . The above application has been processed and Appellant No.2 has been allotted Client number and kit I.D. dated 23rd July, 2004. The application clearly states the relationship of the child to the sponsor i.e. Appellant No.2, as an adopted child. e). Reference letter from one Subhash Ghai stated to be a well known film personality. f). Reference letters from one Jagjit Singh, stated to be a well known singer and one Sanjay Narayan, Principal Secretary and CPO, General Administration Department, Mantralaya, Mumbai. . Each of these persons have certified that they have known Appellant Nos.1 and 2 for several years and they are of good standing in the community morally and socially ; that they have also served many charitable organizations both in the USA and in Canada ; that both individuals will be good parents and will provide the necessary love and attention that : 6 : is required to the said child. g). Certificate addressed by Quari Hosein Auckbaralee (Hon. President Nur-E-Islam Society of Canada) certifying that the Canadian law applies to all religions, races or creeds and does not prohibit adoption ; that he is a leader of the community in Canada ; he has been President of the society for 17 years and Vice President for eight years in Canada and that muslims in Canada are entitled to adopt children. h). Certificate issued by the Imaam of The Toronto And Region Islamic Congregation certifying that Islam does not prohibit or prevent Appellant Nos.1 and 2 from legal guardianship or foster of a child or children. i). Certificate issued by Imaam Shaffie Mohammed Scarborough Islamic Dawa certifying that he has known Appellant Nos.1 and 2 for about ten years ; that Appellant Nos.1 and 2 are very loving and kind hearted and that according to Canadian law adoption is permitted. j). Certificate issued by the police office of Quebec, Canada in respect of Appellant Nos.1 : 7 : and 2 certifying that there was no criminal record against either of them. k). Certificate issued by the Advocates and Notaries LACROIX & COTE, QUEBEC, CANADA certifying that he knows Appellant No.2 as a customer ; that Appellant No.2 is the only shareholder and administrator of the company which owns three buildings of the aggregate value of 24,00,000 Canadian Dollar. l). A bank statement of BANK ONE, Los Angeles indicating a combined balance US $ 313,976 in their accounts. m). Letter dated 14th February, 2005 from one Dr.Andre Larochelle certifying that there is no Family Advisory Bureau in the near vicinity ; that he has known Appellant Nos.1 and 2 and as well as their family background and status in society and as their family doctor had discussed personal matters with them from time to time ; that Appellant Nos.1 and 2 have a good family background and have respectable social status. n). Certificate of Mr.Pierre Cote, Psychologist, Quebec stating that he has evaluated their psychological ability and competency to bring up a child and certifying that Appellant : 8 : Nos.1 and 2 are mentally fit and their parental competency. o). Certificate issued by one Gilles Bergeron, Director General, Guebec certifying that they had conducted a home study report of Appellant Nos.1 and 2 and found that they have sufficient residential facility in Canada and that the area has excellent schooling facilities ; that they have marital harmony between them and have friendly and peaceful relations with their neighbours. p). Certificate issued by the said Notary stating that she was going to begin the Canadian procedures of adoption after the child arrived in Canada q). A letter addressed by the office of the City of Chicoutimi (residence of Appellant Nos.1 and 2 in Canada) certifying that appellant Nos.1 and 2 were carrying on business in real estate and that they were respectable residents with good social and financial status. r). Application procedure for issuing visas including for adopted child. : 9 : 8. Although the Petition was jointly filed by both the sets of parents, in view of the importance and sensitive nature of the matter, one of us while sitting singly earlier (S.J. Vazifdar, J.) had requested Mrs.M.S. Diwan to act as an amicus-curie. Mrs.Diwan had agreed to do so. She continued appearing as amicus-curie even before us. Before going any further, we would like to express our appreciation to both the learned counsel for their assistance and research not only of the law but also the procedure required in the present case. We have, after hearing Mrs.Diwan, provided several safeguards which are always necessary in such matters. On her recommendations further documents were called for which Mr.Chagla readily produced before us at subsequent hearings. 9. The learned Judge dismissed the Petition on the ground that merely because Appellant Nos.3 and 4 have consented to the appointment of Appellant Nos.1 and 2 as guardians of the child, the same could not be allowed. The learned Judge further held that merely because Appellant Nos.3 and 4 are very poor and that Appellant Nos.1 and 2 are affluent did not warrant the Petition being allowed. He held that the natural love and affection of the parents creates a proper : 10 : atmosphere and circumstances for the purpose of good up-bringing of the child ; that three children are already with Appellant Nos.3 and 4 and were being looked after and cared for and therefore it is not possible to hold that Appellant Nos.3 and 4 were not capable of performing their parental duties and/or were not fit to perform their duties towards the fourth child. The learned judge held that in view of Section 19(b) of the Guardians and Wards Act, 1890 it is improper to allow any person other than Appellant Nos.1 and 2 to be appointed as guardians of the child unless the Court came to the conclusion that the parents were unfit to be guardians of the child. 10. It is appropriate therefore at this stage to set out some of the provisions of the Guardians and Wards Act, 1890 (hereinafter referred to as the "said Act"). "7. Power of the Court to make "7. Power of the Court to make "7. Power of the Court to make order as to guardianship.- order as to guardianship.- order as to guardianship.- (1) Where the Court is satisfied that is for the welfare of a minor that an order should be made - (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the court may make an order : 11 : accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian a pointed or declared as aforesaid have ceased under the provisions of this Act. 17. Matters to be considered by the 17. Matters to be considered by the 17. Matters to be considered by the Court in appointing guardian. - Court in appointing guardian. - Court in appointing guardian. - (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. 19* * * (5) The Court shall not appoint or declare any person to be a guardian : 12 : against his will. 19. Guardian not to be appointed by 19. Guardian not to be appointed by 19. Guardian not to be appointed by the Court in certain cases.- the Court in certain cases.- the Court in certain cases.- Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person - (a) of a minor who is a married female and whose husband is not, in the opinion of Court, unfit to be guardian of her person, or (b) 20* * * of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under superintendence of a Court of Wards competent to appoint a guardian of the person of the minor." 11. It is important to note in the first instance the judgment of the Supreme Court in the case of Anokha v. State of Rajasthan (2004) 1 Supreme Court Cases 382. The child of the Petitioner was sought to be adopted by Respondent Nos.2 and 3. The Petitioner’s husband was a taxi driver. Respondent Nos.2 and 3 were Italian nationals. During their frequent visits to India they used to hire the Petitioner’s husbands taxi. The Petitioner’s husband expired as a result of an accident. The Petitioner had six children. Respondent Nos.2 and 3 had no : 13 : children and wanted to adopt one of the Petitioner’s children. Respondent Nos.2 and 3 therefore filed a Petition under Sections 7, 10 and 17 of the 1890 Act in the Court of the District Judge, Alwar stating that they were financially well off and that they would love the child and provide all necessary formalities. In support of the Petition various documents were filed to establish the bona-fides and suitability of Respondent Nos.2 and 3 to take the child in adoption. The District Judge held that the adoption ought to be affected by following the guidelines prescribed for "Adoption of Indian Children" issued by the Ministry of Welfare, Government of India. The guidelines required that the child must be sponsored by a social or child welfare agency recognized or licensed by the Government of the country in which the foreigner is a resident. It was therefore held that unless an authorised agency in Italy submitted an enquiry report and a "no-objection certificate" was issued by the Ministry of Welfare, Government of India, no application for appointment of foreigners as guardians could be presented to the court. In appeal, the High Court upheld the judgment. The High Court held that Respondent Nos.2 and 3 would have to get a no-objection certificate from the Central Adoption Resource Agency (CARA). : 14 : 12. The Supreme Court held that the impugned judgments erred in not considering the material produced by Respondent Nos.2 and 3 in support of their application. It was held that the guidelines issued in a number of decisions of the Supreme Court the first of which is in the case of Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244, did not apply in those cases where the children were staying with the biological parents. This is clear from the following observations : "8. The original decision of the Court was taken on the basis of a letter written by one Laxmi Kant Pandey complaining of malpractices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The judgment has considered the problem at great length after affidavits were filed not only by the Indian Council of Social Welfare but also by foreign organisations and Indian organisations which were engaged in offering and placing Indian children for adoption by foreign parents. The decision has referred to three classes of children : (i) children who are orphaned and destitute or whose biological parents cannot be traced ; (ii) children whose biological parents are traceable but have relinquished or surrendered them for adoption ; and (iii) children living with their biological parents. The third category has been expressly excluded from consideration as far as the decision was concerned "for in such : 15 : class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents". The reason is obvious. Normally, no parent with whom the child is living would agree to give a child in adoption unless he or she is satisfied that it would be in the best interest of the chid. That is the greatest safeguard. 10. The aforesaid observations only pertain to children who have been or are sought to be relinquished or surrendered for adoption in general to a placement agency or other institution where there is no contact between them and the adoptive parents at all and not to cases where the child is living with his/her parent/parents and is agreed to be given in adoption to a particular couple who happen to be foreigners. 11. This decision has been subsequently modified but reaffirmed in several decisions. In all the subsequent cases, the modification, if any, has pertained to adoptions through institutions i.e. the first or second category of children. (See Laxmi Kant Pandey v. Union of India, Laxmi Kant Pandey v. Union of India, Laxmikant Pandey v. Union of India, Sumanlal Chhotalal Kamdar v. Asha Trilokbhai Shah, Karnataka State Council for Child Welfare v. Society of Sisters of Charity St.Gerosa Convent, Indian Council Social Welfare v. State of A.P. and Laxmi Kant Pandey v. Union of India.) 12. The Guidelines have formulated various directives as given by this Court in the several decisions and do not relate to regulation of the adoption procedure to be followed in respect of the : 16 : third category of children, namely, children with their biological parents who are sought to be given in adoption to a known couple as is the situation in this case. It is only where there is the impersonalized attention of a placement authority that there is a need to closely monitor the process including obtaining of a no-objection certificate from the Central Adoption Resource Agency (CARA), Ministry of Welfare, the sponsorship of the adoption by a recognised national agency and the scrutiny of the inter-country adoption by a recognised Voluntary Coordinating Agency (VCA). Indeed CARA has been set up under the Guidelines for the purpose of eliminating the malpractices indulged in by some unscrupulous placement agencies, particularly the trafficking in children." (emphasis supplied) 13. It is thus clear that as far as the present case is concerned CARA guidelines do not apply. In fact in Lakshmi Kant Pandey v. Union of India AIR 1984 SC 469, the Supreme Court itself made it clear that the judgment did not apply to cases of adoption of children who are living with their biological parents. The Supreme Court held as under :- "11. We may make it clear at the outset that we are not concerned here with cases of adoption of children living with their biological parents, for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents. It is only in those cases where the children sought to be taken in : 17 : adoption are destitute or abandoned and are living in social or child welfare centres that it is necessary to consider what normative and procedural safeguards should be forged for protecting their interest and promoting their welfare." (emphasis supplied) 14. The law regarding cases of adoption of children living with their biological parents who are sought to be given in adoption to a known couple willingly by the biological parents themselves is governed by the judgment of the Supreme Court in Anokha’s case. In paragraph 15, the Supreme Court held as under :- "15. None of these provisions in the several decisions of this Court impinge upon the rights and choice of an individual to give his or her child in adoption to named persons, who may be of foreign origin. The Court in such cases has to deal with the application under Section 7 of the Guardians and Wards Act, 1890 and dispose of the same after being satisfied that the child is being given in adoption voluntarily after being aware of the implication of adoption viz. that the child would legally belong to the adoptive parents’ family, uninduced by any extraneous reasons such as the receipt of money etc. ; that the adoptive parents have produced evidence in support of their suitability and finally that the arrangement would be in the best of the child." (emphasis supplied) 15. In Anokha’s case the Supreme Court has also provided the guidelines for the nature of evidence : 18 : necessary to satisfy the Court regarding the desirability of permitting such applications and the undertakings to be given by the parties and safeguards to be provided by the Court. However, it is clear that the Supreme Court has categorically stated that in cases such as the one before us, the Court has to deal with the application under Section 7 of the said Act. It is necessary for the Court to be satisfied that the child is being given in adoption voluntarily; that the biological parents are aware of the nature and consequences of their act namely that the child would legally belong to their adoptive parents and that the act of the parties is not induced by any undesirable extraneous reasons such as the receipt of money. 16. We are entirely in agreement with Mrs.Diwan that an order allowing the adoption or permitting the persons other than the biological parents to be appointed as the guardians of a child ought not to be passed mechanically. Matters such as these cannot be treated like applications for consent decrees. Nor can they be permitted except for valid and desirable reasons. Indeed such orders ought not to permit a sale of children. Nor should parents be permitted to abdicate their duties of providing for their children : 19 : not merely financially but emotionally as well. It is necessary to realize that orders such as these do not merely affect the parties to the application but primarily affect the child. The object ought not to be merely monetary. Socially and psychology to remove from the child from the custody of the biological parents is a matter of utmost importance. The Court necessarily has to weigh cases such as these very carefully in the balance. 17. In the present case, we are satisfied that the intention of the parties is bona-fide and genuine and that the application ought to be granted for valid reasons. 18. Firstly there is little