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2005 Supreme(Bom) 251
IN THE HIGH COURT OF BOMBAY
ZAVEED PHARUKHI
Versus
State
Decided on : February 24, 2005
Headnote:Guardian and Wards Act, 1890 - Sections 7, 17 and 19 - Guardians of ward. - Financially well off can never be sole consideration for appointment of guardians of ward. - The appellants filed the petition for an order declaring appellant Nos. 1 and 1 as guardians of the wards viz. newly born baby boy as such will be entitled to take him out of the country to their place of residence. There is no doubt that appellants Nos. 3 and 4 have voluntarily agreed to appoint appellant Nos. 1 and 2 as guardians. Appellant Nos. 2 and 4 were in present the hearing. Nor it is difficult to understand in the facts and circumstances of the case, why appellant Nos. 3 and 4 have consented to appellant Nos. 1 and 2 being the guardians and adoptive parents of the child. Appellants No. 3 is a domestic worker with a very meagre income. They have four children including the said child. The first three children are 13, 11 and 6 years old respectively. The will be dependent on appellant Nos. 3 and 4 for many years to come. Merely because appellants Nos. 1 and 2 are financially well off, the Court ought not to appointment them as the guardians of the minor child. The fact that a part is financially well off can never be the sole consideration for an order appointing them as guardians. It is but a factors to be taken into consideration while deciding whether or not they would be able to prove for the child. Parents cannot be permitted to give their children in adoption without good cause. The importance of the role of the biological parents in every respect cannot be overstated. A distinction must be drawn in the approach of a Court while considering applications made with the consent of biological parents and contested applications. There cannot be any rigid formula for determining the welfare of the child. It must be determined keeping in mind the totality of circumstances. It cannot be said that the biological parents have without due consideration merely abdicated their duties as parents to care for the child. The record indicates that they will not be able to take care of the child despite their best intention to do so. In such a case even assuming that the rigours of Section 19 of the said Act are to be applied, Court would be inclined to allow this application not because Court has come to the conclusion that the biological parents are "unfit" in any pejorative sense but in a functional sense. (2004) 1 SCC 382; (1984) 2 SCC 244; AIR 1914 PC 41 - Relied.
S. J. VAZIFDAR, J.
( 1 ) THIS is an Appeal against the order of the 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 21st 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 Ghais residence for several years. She was aware that appellant Nos. 1 and 2 did not have children and were desirous of adopting 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.
( 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 :- 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 nu
