The fitness of the natural guardian under section 19(b) of the Guardians and Wards Act, 1890 must be assessed before considering the appointment of a third party as guardian. Financial stability alone cannot justify appointing a third party as guardian, and the natural love and affection of the parents is essential for the upbringing of the child.

JUDGMENT - KAMDAR S.U., J.: - By the present petition, the petitioner Nos. 1 and 2 seeks relief that they should be declared as guardians of the wards viz. Faraz (formerly known as Sohail). The petitioner Nos. 3 and 4 are the natural guardians viz. the mother and the father. The child is born on 2-5-2004 and thus, is about six months of age, The petitioner Nos. 3 and 4 have also other three children known as daughter Roobina, who is around 12 years old, son Farook, who is about 10 years old, another son Iqbal, who is around 5 years old.

2. The petitioners Nos. 1 and 2 are residing at Houston Texas in the United States of America. The petitioner No. 1 is a citizen of India and the petitioner No. 2 is the citizen on United States of America. They are both husband and wife. According to the petitioner, the petitioner Nos. 1 and 2 are wealthy having assets of about US $4,000,000. The petitioner No. 2 is a qualified Bachelor of Business Management. According to the petitioner, they are desirous of adopting a child since they are without any issue and the petitioners Nos. 3 and 4 have given their consent that the child viz. Faraz should be adopted by the petitioner Nos. 1 and 2. In paragraph 4 of the petition, it has been inter alia stated that the petitioner No. 3 is a labourer who does household chores and the petitioner No. 4 is a housewife. They are both illiterate and they have a very low income and are not in a position to maintain their newly born child. On the basis of the aforesaid averments, the petitioners Nos. 3 and 4 are supporting the petitioner Nos. 1 and 2 for being appointed as a guardian.

3. The learned Counsel for the petitioner has stated that this appointment of the guardian is a step towards ultimately adoption of the said child by the petitioner Nos. 1 and 2. According to him, under the Canadian Law unless the parents are appointed first as the guardians, it is not possible for them to adopt the child and, therefore, the present petition is filed as a step towards ultimate adoption of the newly born child.

4. The learned Counsel for the petitioner, who has appeared before me, strongly urged that I should allowed the present petition because the petitioners Nos. 3 and 4 being the natural guardians have given their consent for appointment of the petitioners Nos. 1 and 2 as guardians of the newly born male child Faraz. He has also urged before me that the ultimate welfare and interest of the said newly born child Faraz is in appointing the petitioner Nos. 1 and 2 as guardians. He has further contended that petitioner Nos. 3 and 4 are unfit to be appointed and/or continued as guardian though they are natural guardian because they are financially too poor to look after the welfare of the said child Faraz.

5. The learned Counsel for the petitioner has further inter alia contended that while appointing the guardian the Court must take into consideration only the provisions of sections 7 and 17 of the Guardians and Wards Act, 1890 and, in accordance therewith, should appoint the guardian by keeping in mind the ultimate interest of the child. According to the learned Counsel for the petitioner, the interest of the child will be best served by appointing the petitioner Nos. 1 and 2 because they are financially sound and are in a position to look after the future need of the said child and, therefore, the petitioner Nos. 1 and 2 should appointed as guardians.

6. Vazifdar, J., has by an earlier order appointed Ms. Madhavi Diwan as an Amicus Curie in the present matter. The learned Counsel has placed before me her arguments and has contended that the Court should take into consideration the provisions of section 19 of Guardians And Wards Act, 1890 particularly, sub-clause (b) thereof. The learned Counsel has contended that under the provisions of section 19(b) of the Guardians And Wards Act, 1890 if the natural guardians, including the father of the child is alive, then they should be appointed as natural guardian and no ot

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