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2012 Supreme(Del) 1935
IN THE HIGH COURT OF DELHI AT NEW DELHI
VEENA BIRBAL, J.
ERIN JENNIFER HAWK – Appellant
Versus
STATE & ANR – Respondents
FAO 105/2010
Decided On : 24.09.2012
Mr. Mohinder Singh along with Mr. Ankur Goel, Advs.
Mr. Rajeeve Mehra, ASG along with Mr. Ashok Singh, Mr. Kunal Kahol & Mr. Madhusudan, Advs.
The welfare of the child is the prime consideration in appointing a guardian, and it should be measured in its widest sense, including the moral and ethical welfare of the child.
Headnote:
Guardians and Wards Act - Appointment of Guardian - Section 7, 26 - Summary of Acts and Sections: The court discussed the provisions of Section 7 and 26 of the Guardians and Wards Act, 1890, which deal with the power of the court to appoint a guardian of a minor's person and property. The court emphasized that the welfare of the child is the prime consideration in making orders as to guardianship, and it should be measured in its widest sense, including the moral and ethical welfare of the child. The court also considered Section 17, which outlines the matters to be considered by the court in appointing a guardian, emphasizing that the welfare of the minor is the sole consideration. The court referred to the Supreme Court's judgment in Laxmi Kant Pandey vs. UOI, which supports inter-country adoptions while emphasizing the need for great care to ensure the welfare of the child. The court highlighted the importance of considering the child's assimilation in a new environment and the desirability of inter-country adoption before the child reaches the age of 3 years.
Fact of the Case:
The appellant, a single lady, sought appointment as the guardian of a minor child for adoption. The appellant, a permanent resident of the USA, was previously married and had two male children from her previous marriage. The child in question was found abandoned and was under the care of a registered society. The appellant's petition was dismissed by the District Judge, citing concerns about the welfare of the child in the appellant's care.
Finding of the Court:
The court found that the welfare of the child is the prime consideration in appointing a guardian, and it should be measured in its widest sense, including the moral and ethical welfare of the child. The court considered the appellant's existing family situation, her work, and the potential for remarriage, and concluded that appointing the appellant as the guardian for the female child would not be conducive to the child's welfare.
Issues: The main issue was whether the appellant should be appointed as the guardian of the minor child for adoption, considering the welfare of the child in the appellant's care.
Ratio Decidendi: The court emphasized that the welfare of the child is the prime consideration in appointing a guardian, and it should be measured in its widest sense, including the moral and ethical welfare of the child. The court also considered the desirability of inter-country adoption before the child reaches the age of 3 years, as highlighted in the Supreme Court's judgment in Laxmi Kant Pandey vs. UOI.
Final Decision: The court dismissed the appeal, upholding the District Judge's decision to reject the appellant's petition for appointment as the guardian of the minor child for adoption.
VEENA BIRBAL, J.
1. Present is an appeal under Section 47 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the Act’) against the impugned order dated 15.02.2010 passed by the learned District Judge, Delhi whereby the petition filed by the appellant for her appointment as guardian of person of minor child Urmila born on 21.11.2001 under the care of respondent no.2 Society, under Section 7 and 26 of the Act has been dismissed.
2. The factual background of the case is as under:-
The appellant is a single lady. She had filed a petition under Section 7 and 26 of the Act for her appointment as guardian of the person of minor child Urmila born on 21.11.2001 under the care of respondent no.2 Society, with permission to adopt her as per local court of her country. The said petition was filed through Mrs. Vijay Raina, Director SOS childrens Villages of India i.e. respondent No.2 before the learned District Judge, Delhi. At that time, appellant was 37 years of age. Appellant is permanent resident of USA being its citizen/national. The appellant was earlier married to Anthony F. Hawk on 28.09.1996. Due to irreconcilable differences between them, they could not live together and their marriage ended on 01.09.2004. From the said wedlock, there are two male children viz., Spencer Anthony Hawk and Keegan Wesley Hawk born on 26.03.1999 and 18.07.2001, respectively. Appellant is having joint custody of the children along with her earlier husband. It is stated in the petition that appellant is medically and physically fit and wishes to adopt a minor child to expand her family. She is self-employed for the past 5 years as a property manager. Her average annual income in the year 2008 was $323,000. She has a high status and sufficient means of livelihood.
3. Respondent no. 2 is a registered society and is licensed by the Government of NCT of Delhi to keep and maintain the abandoned, orphan and destitute children. It has been granted recognition by the Ministry of Social Justice and Empowerment, Government of India, New Delhi for submitting applications to the competent court for declaration of foreigners as guardians of Indian children under the Act. It was further alleged that on 08.10.2006, a minor female child, namely, Urmila born on 21.11.2001 was found abandoned by the police officials of P.S. Old Delhi. On that very day, the care and custody of the child was handed over to the Child Helpline, Central Zone, New Delhi which handed over the care and custody of the child to respondent no. 2 society on 09.10.2006 and since then nobody has come forward to claim the child. Respondent no. 2 society had moved an application before the Child Welfare Committee for declaring the said child as an abandoned child free for adoption and the said committee after making enquiries vide order dated 25.07.2007 had declared the child Urmila as an abandoned child free for adoption. It is further averred in the petition that every attempt was made to place the child in an Indian family but no suitable Indian family came forward to adopt and accordingly the Co-ordinating Voluntary Adoption Resource Agency (CVARA) had cleared the child as an abandoned child free for adoption. It was further alleged that the appellant has been found to be the most suitable person for legal adoption of the child and the Central Adoption Resource Authority (CARA) has issued “No Objection Certificate” in her favour. It was prayed that it will be in the interest of minor child that the appellant be appointed as guardian of the minor child Urmila with permission to adopt her as her daughter in accordance with local laws of her country.
4. Notice of the said petition was issued to the respondents. However, none appeared on behalf of respondents to contest the claim of appellant before the learned District Judge. The appellant examined Mrs. Vijay Raina, Director of respondent no.2 and attorney of appellant as PW-1 who led in evidence her affidavit Ex. PW1/A along with
