Mr. Craig Allen Coates & Anr. vs State & Anr.
2009 Latest Caselaw 3461 Del

      HIGH COURT OF DELHI : NEW DELHI

                     FAO No.32/2009

%            Judgment reserved on: 20th August, 2009

             Judgment delivered on: 31st August, 2009


(1) Mr. Craig Allen Coates
    S/o. Mr. Roger Marvin Coates.

(2) Ms. Cynthia Ann Coates
    W/o Mr. Craig Allen Coates.

    Both resident of:-
    380S, Westfield Street
    Oshkosh, WI 54902
    Winnebago, USA

    Through Mrs. Rekha Arora
    Adoption Officer
    Welfare Home for Children
    1-B, Institutional Area
    Sarita Vihar
    New Delhi-110 044.
                                       ....Appellants
                      Through: Mr. Mohinder Singh,
                               Adv.

                 Versus

(1) State through
    Indian Council for Child Welfare,
    4, Deen Dayal Upadhaya Marg,
    New Delhi.

(2) Welfare Home for Children,
    1-B, Institutional area,

FAO No.32/2009                           Page 1 of 18
      Sarita Vihar,
     New Delhi
                                        ....Respondents.

                       Through: Nemo


Coram:

HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                            Yes

2. To be referred to Reporter or not?                         Yes

3. Whether the judgment should be reported
   in the Digest?                                             Yes




V.B.Gupta, J.

Appellants have filed present appeal against

judgment dated 18th December, 2008, passed by District

Judge-III (West), Delhi, vide which their petition under

Section 7 & 26 of Guardians and Wards Act, 1890 (for

short as „Act‟) was dismissed.

2. Brief facts are that, appellants are American nationals

and were married on 19th May, 1984. From their wedlock,

they have three children, namely, Scott aged 21 years,

female child Kacie aged 19 years and male child Jesse

aged 16 years old.

3. It is stated that appellants are medically and

physically fit and healthy and they have a strong desire to

adopt another minor male child in order to further expand

their family.

4. Appellant no.1 is working as a Transaction Processor

with U.S Bank and his salary per hour is $8.29 while,

appellant no. 2, is working as Nursing Supervisor with

Preferred Home Health Care and her current annual

income is $43,680. Both enjoy high status and sufficient

means of livelihood.

5. Respondent no. 2 is a registered Society and is

licensed by Government of NCT of Delhi to keep and

maintain abandoned, orphaned and destitute children at

their Children Homes. It has been granted recognition by

Ministry of Social Justice and Empowerment, Government

of India, for submitting applications to competent Court for

declaration of foreigners as guardians of Indian Children

under the Act.

6. Minor male child Anil (born on 19th October, 1999)

was found abandoned by police officials of Police Station

Okhla, New Delhi, and was transferred to respondent no. 2-

institution on 20th January, 2006. Date of birth of minor has

been fixed as 19th October, 1999, after medical

examination. Said child has been declared as abandoned

child and is certified as legally free for adoption by Child

Welfare Committee. Coordinating Voluntary Adoption

Resource Agency (CVARA) and Central Adoption Resource

Authority (CARA) have been given clearance for inter

country adoption of the child. Appellants, through their

attorney moved this petition for being appointed as joint

guardians of minor child and be permitted to remove the

minor outside the jurisdiction of this Court for his

adoption, according to local laws of their country.

7. Notice of present appeal was issued to the

respondents, who filed their „No Objections.‟

8. It is contented by learned counsel for appellants that

child in question is an abandoned child and no Indian

family has come forward to adopt the said child.

Appointment of appellants as guardians of minor, would be

in best interest and welfare of the child, who would get a

family and stability in life, which he could never get in an

orphanage.

9. It is further contended that in case appeal is not

allowed the child would be deprived of warmth of family

and would be forced to spend his life up to 18 years in an

orphanage without getting proper education and

upbringing and a family environment.

10. Lastly, it is contended that trial court wrongly

dismissed the petition, even though Government of India

has granted „No Objection‟ Certificate to appellants for

adoption of the minor male child. The minor child has been

rejected by Indian families, as child is suffering from

mental delays and needs special care, which appellant no

.2, could provide as she is qualified nurse and has been

taking care of her husband also.

11. In support of his contentions learned counsel for

appellants cited various decisions of Supreme Court,

namely:

(i) Lakshmi Kant Pandey Vs. Union of India (1984) 2 Supreme Court Cases 244;

(ii) Lakshmi Kant Pandey Vs. Union of India & Anr. 1985 Supp Supreme Court Cases 701;

(iii) Lakshmi Kant Pandey Vs. Union of India (1987)1 Supreme Court Cases 66;

(iv) Lakshmi Kant Pandey Vs. Union of India & Anr. (1991)4 Supreme Court Cases 33;

(v) Lakshmi Kant Pandey Vs. Union of India & Anr. (2001)9 Supreme Court Cases 379 and

(vi) Jeremy Kauffinan & Anr. Vs. Indian Council for Child Welfare & Anr. [FAO No. 270-271 of 2006, decided by this Court on 25th January, 2007.]

12. Section 7 of the Act, deals with the Power of

the Court to make order as to guardianship. It read

as under:

"7.Power of the Court to make order as to guardianship-(1)Where the Court is satisfied that it 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 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 appointed or declared as aforesaid have ceased under the provisions of this Act.

13. As per this Section, District Judge, as protector

and guardian of minor, appoints guardian of the person

and properties of minor and places himself in the

position of the father or guardian.

14. If a person applies to be appointed guardian of

the person of a minor, and the applicant is found to be

unsuitable, it is not necessary for the Court to do

anything more than rejecting his petition. The

discretion of the Court of first instance in the

appointment of a guardian will not be interfered with

by the Court of Appeal, except for strong reasons.

15. Section 17 of the Act, deal with matters to be

considered by the Court in appointing guardian. It read

as under:

"17 . Matters to be considered by the 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 to 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.

(4) x x x x x x (5) The Court shall not appoint or declare any person to be a guardian against his will.

16. Section 7 read with Section 17 of Act, make it

incumbent on court to take into account question of

welfare of minor while appointing or declaring a

guardian.

17. Section 17(2) of the Act mentions and specifies a

number of items for the consideration of the court in

appointing or declaring a guardian.

18. The settled law is that the word "welfare" used in

this section must be taken in its widest sense. The

moral and ethical welfare of the child must also weigh

with the court as well as its physical well-being.

19. In Lakshmi Kant Pandey (Supra), Supreme

Court laid down guidelines with regard to adoption to

be followed from time to time . In (1984) 2 Supreme

Court Cases 244, the Court held :-

"But while supporting inter-country adoption, it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the child, great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide to the child a life of moral or material security or the child may be subjected to moral or sexual abuse or forced labour or experimentation for medical or other research and may be placed in a worse situation than that in his own country."

20. The court also observed;

"It has been the experience of a large number of social welfare agencies working in the area of adoption that, by and large, Indian parents are not enthusiastic about taking a stranger child in adoption and even if they

decide to take such child in adoption, they prefer to adopt a boy rather than a girl and they are wholly averse to adopting a handicapped child, with the result that the majority of abandoned, destitute or orphan girls and handicapped children have very little possibility of finding adoptive parents within the country and their future lies only in adoption by foreign parents. But at the same time it is necessary to bear in mind that by reason of the unavailability of children in the developed countries for adoption, there is a great demand for adoption of children from India and consequently there is increasing danger or ill-

equipped and sometimes even undesirable organizations or individuals activating themselves in the field of inter-country adoption with a view of trafficking in children and sometimes it may also happen that the immediate prospect of transporting the child from neglect and abandonment to material comfort and security by placing it with a foreigner may lead to other relevant factors such as the intangible needs of the child, its emotional and psychological requirements and possible difficulty of its assimilation and integration in a foreign family with a different racial and cultural background, being under-emphasized, if not ignored."

21. The Court further held;

"We may also point out that if a child is to be given in inter-country adoption, it would be desirable that it is given in such adoption as far as possible before it completes the age of 3 years. The reason is that if a child is adopted before it attains the age of understanding, it is always easier for it to get assimilated and integrated in the new environment in which it may find itself on being adopted by a foreign parent. Comparatively it may be somewhat difficult for a grown up child to get acclimatized to new surroundings in a different land and sometimes a problem may also arise whether foreign adoptive parents would be able to win the love and affection of such grown child. But we make it clear that when we say this, we do not wish to suggest for a moment that children above the age of three years should not be given in inter-country adoption. There can be no hard and fast rule in this connection. Even children between the ages of 3 and 7 years may be able to assimilate themselves in the new surroundings without any difficulty and there is no reason why they should be denied the benefit of family warmth and affection in the home of foreign parents, merely because they are past the age of 3 years".

22. In light of above observations made by Supreme

Court, it is to be seen as to whether appellants have

got any case for adoption of the child in question.

23. As is apparent, appellants are already blessed

with three children i.e. two males and one female

child. Both appellants are fifty years old, therefore,

need for them to expand their family further at this

stage, does not sound very convincing. Appellant no.2

is a nurse and is already taking care of her husband,

who is disabled and managing her career also.

24. It is quite likely that bringing up of additional

child, may get neglected. Also one cannot completely

rule out the possibility that child may be exploited and

used as a mere helper for Appellant no.1, who is

disabled, once the child reach the foreign land.

25. It has also not satisfactorily been explained by the

appellants as to why they are so keen, in adopting an

Indian child, specifically, and not the child of their own

country, who will be quicker in adapting to their

family.

26. In AIR 1994 Supreme Court 658, the Court

further clarified the guidelines, laid down in Lakshmi

Kant Pandey's (Supra) and observed;

"We would like to clarify that the guidelines laid down in Lakshmi Kant Pandey‟s case and adopted by the Government of India pursuant to the directions made therein have relevance on the question of welfare and must be kept in view while disposing of any case concerning adopting of Indian children by foreign couples. One of the guidelines is that before such adoption is cleared an attempt should be made to find Indian parents or parents of Indian origin for the children and if that is not possible within a reasonable time then the question regarding adopting by foreign parents may be considered. This is clearly to ensure that as far as possible Indian children should grow up in Indian surroundings so that they retain their culture and heritage, a matter which has a bearing on the question of their welfare. We would like to emphasize that the guide lines laid down in Lakshmi Kant Pandey‟s case are binding on all Courts including High Courts. We do not think that by the above observations the High Court intended to brush aside the guidelines laid down by the Government of India as not germane to the question pertaining to adoption under Section 7. We read the above observations made by the High Court merely to mean that

the recommendations made by the Council a Voluntary Co-ordination Agency set up pursuant to the guidelines in Lakshmi Kant Pandey„s case, are not final and conclusive in nature, that is to say, that the decision regarding adoption has to be taken by the Court in terms of S.7 without treating the recommendations as conclusive in character although they are entitled to great weight.".

27. In Laxshmi Kant Pandey (Supra), though

adoption by foreign nationals has been upheld, but it

is also observed that greater care and introspection is

needed in these Inter-Country adoptions.

28. The impugned judgment of District Judge is based

on sound legal principles, as it deals in detail with

legal as well as moral principles, that when foreign

couple have already got a male child, what is the need

and motive to adopt another male child. Trial court

rightly came to the conclusion, that it would not be in

the welfare of the child, for appellants to be appointed

as his guardian. Relevant findings of trial court are as

under:-

"(9) The child is stated to be about 9 years of age. In order to as certain his willingness, I had summoned him to the Court and had met him in my chamber. I had tried to make him comfortable by offering some biscuits and tea. However, I found that the child hardly spoke. He did not give answers to various questions posed by me and did give an impression that he did not understand the proceedings nor can understand that he is being proposed to be sent to a foreign land amongst different people, of different race and language. He kept on looking towards the door from where he was made to come in and appeared to be apprehensive that he may not be left there. He was thus, not in a position to give an assent or otherwise regarding his willingness to be taken outside the Country for his eventual adoption by foreign parents. In my opinion, therefore, sending such a child abroad may not be conducive to his good health and to his overall development. I am of the considered opinion that this child may not be able to adapt to the new environments, the new way of life in the foreign land where he is proposed to be taken. Since, he is about 9 years of age, it would be rather difficult for him to pick up the language and manner of their living.

(10) There is another angle to this case. The home study report filed on record shows that the proposed adoptive parents are about 50 years of age. They

have 3 children with the age ranging between 16-21 years. Two of them are not residing with their parents. In these circumstances, this child will hardly get any company. Secondly, the proposed adoptive father suffers from a serious disease known as Cerebral Palsy. The home Study Report Ex. P -2 inter-alia reads as under:-

"Craig has had cerebral palsy since birth. It is a physical condition, one that confines him to a wheel chair. Craig cannot talk verbally, so he has a communication board that attaches to his wheel chair that helps him communicate with others . "

(11) It is, therefore, clear that petitioner no. 1 is a physically handicapped person. In my opinion, he would be unable to take responsibility of a guardian for the child. I am, therefore, of the considered opinion that the grant of the petition may not be in the welfare of the child. In the result, I reject the prayer for appointment of the petitioners as the guardians of the minor".

29. It appears that respondents in the present

case gave their „No Objection„ without any

application of mind. They did not consider this

aspect, that when appellants are having three

children already, then where is need for them to

expand their family, any further.

30. Case of Jeremy Kauffman (Supra) is clearly

distinguishable from the facts of the present case. In

the present case, appellants are already having three

children and both appellants are about fifty years old.

31. After going through entire record and considering

the arguments advanced by learned counsel for

appellants, I find that there is no ambiguity or illegality

in the impugned judgment.

32. The real intention of appellants in adopting the

child who is suffering from mental delays, appears to

exploit him as a domestic help for appellant no.1, since

appellant no.2 is gainfully employed as a nurse, while

appellant no.1, has been suffering from Cerebral Palsy

since birth. Moreover, appellants are already having

three children, then where is the need to further

expand their family.

33. Present appeal filed by appellants is nothing but

an abuse of the process of law. Such frivolous and

bogus appeals, deserves to be dismissed with heavy

costs, so that precious time of trial court as well as

appellate court are not wasted.

34. Accordingly, this appeal stand dismissed with

costs of Rs.20,000/-(Rupees twenty thousand only)

35. Costs be deposited with Registrar General of this

Court within four weeks .

36. Trial court record be sent back.

37. List for compliance on 6th October, 2009.

31st August, 2009                   V.B.GUPTA, J.
 bhatti