FAO Nos.1793 2920 of 2018 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
1. FAO No.1793 of 2018 (OM)
Date of Decision:11.12.2018
*****
Anil Sharma
. . . . . Appellant
Vs.
Harjinder Kaur and another
. . . . . Respondents
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2. FAO No.2920 of 2018 (OM)
*****
Harjinder Kaur
. . . . . Appellant
Vs.
Anil Sharma and another
. . . . . Respondents
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CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN
HON’BLE MR.JUSTICE ANUPINDER SINGH GREWAL
*****
Present: – Mr.Manjeet Singh, Advocate,
for the appellant (in FAO No.1793 of 2018).
for the respondent (in FAO No.2920 of 2018)
Mr.Rahul Sharma, Advocate,
for the respondent (in FAO No.1793 of 2018)
for the appellant (in FAO No.2920 of 2018)
*****
RAKESH KUMAR JAIN, J. (ORAL)
This order shall dispose of two appeals bearing FAO Nos.1793
of 2018 title as “Anil Sharma Vs. Harjinder Kaur and another” [for short
‘the 1st appeal’] and FAO No.2920 of 2018 title as “Harjinder Kaur Vs. Anil
Sharma and another” [for short ‘the 2nd appeal’] as both the appeals have
arisen from the common judgment dated 6.3.2018 passed by the Guardian
Judge-cum-Civil Judge (Sr. Divn.), Panchkula by which an application filed
by the appellant in the 1st appeal under Section 7 of the Guardianship and
Wards Act, 1890 [for short ‘the Act’] read with Section 13 of the Hindu
Minority and Guardianship Act, 1956 [for short ‘the Act of 1956’] for his
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appointment as guardian of the minor girl child, namely, Kashni Neeta
Sharma, has been declined. However, for the sake of convenience, the facts
are being extracted from the 1st appeal.
In brief, the appellant in the 1st appeal is a Non Resident Indian
(British citizen) residing at #7, Lampton Avenue, Hounslow TW3 4EW,
United Kingdom from the last 16 years with his wife Neeta Sharma. They
are Hindu by religion and are issueless. The respondent Harjinder Kaur is a
Sikh by religion and is a resident of Faridkot (Punjab). Although the
appellant had set up a case that the respondent, being a friend of his sister
Anu Sharma, had agreed to be a surrogate mother for his child by adopting
IUI technique but it had ultimately been found, after the DNA test, that the
child in question, born to the respondent, was not of the appellant. Rather it
has been found as a fact that the respondent is an unwed mother of the
female child, namely, Kashni Neeta Sharma. The appellant had filed an
application under Section 7 of the Act and Section 13 of the Act of 1956
before the Court at Panchkula, where he was ordinarily residing, for his
appointment as a guardian of the minor girl Kashni Neeta Sharma, who was
born on 11.1.2017 to the respondent, in view of the settlement/agreement
arrived at between the parties on 28.11.2017. It is pertinent to mention here
that before the settlement was arrived at between the parties, the appellant
had registered one FIR No.144 dated 21.6.2017 under Sections 384, 389
420 of the Indian Penal Code, 1860 [for short ‘the IPC’] at Police Station
Sector 14, Panchkula against the respondent but they had agreed, as per the
settlement/agreement dated 28.11.2017, to get rid of the said FIR by seeking
its quashment on the basis of a compromise. The application filed by the
appellant under Section 7 of the Act and Section 13 of the Act of 1956 dated
2.12.2017 was not contested by the respondent, who had filed an admitting
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written statement dated 18.1.2018. The appellant tendered his evidence in
examination-in-chief by way of an affidavit as PW1 and was even
cross-examined by the respondent only to the effect that they would look
after the child as their daughter and would provide her both social and
financial security. Neeta Sharma, wife of the appellant, was examined as
PW2, who also deposed that they are asking for the custody of the minor
child as they ultimately wanted to adopt her and as per law of the United
Kingdom the child cannot be adopted until and unless his/her custody is
given in India. PW2 was not cross-examined by the respondent. The
appellant also tendered in evidence the report of the Andrew Beckwith, an
independent social worker of United Kingdom, who had concluded in his
report that “My professional opinion of this couple is that they have a close,
stable and loving relationship together. They speak lovingly and
affectionately of Kashni. The home is adorned with photographs of Kashni
and Mr. Mrs. Sharma together. The fact that Kashni is not their own
biological child has not, in my opinion, affected their love for her. Mr.
Mrs. Sharma are fully supported by their respective families and also regard
Kashni as a family member. It is my professional opinion that Mr. Mrs.
Sharma can offer Kashni the love, support and stability that every child
needs. They can open a world of opportunity to the child that they ultimately
wish to adopt and parent and, most importantly, care for and love”. He also
tendered the statement of truth that “he had no conflict of interest of any
kind”. Respondent No.1, also put in appearance as RW-1, had stated that she
wanted to give her child voluntarily, with her free consent and without
monetary interest in the guardianship of the appellant and his wife with a
view that the child would be taken into adoption by them.
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The learned trial Court, after considering both oral as well as
documentary evidence, opined that the respondent had appointed the
appellant as a guardian of the minor child by way of Will and in view of
Sections 9(4) (5) of the Act of 1956, the custody cannot be given to the
appellant as a guardian during the life time of the biological mother. It is
also observed by the trial Court that the appellant has failed to lead evidence
to the effect that the biological mother of the child was having any
acquaintance with his sister and owing to that relationship the respondent
had offered to be a surrogate mother due to love and affection and without
financial consideration. It is further observed that the appellant has failed to
produce on record the passport record in order to substantiate that the child
has been in his direct care and custody since birth. The Court had also
referred to the decision of the Supreme Court in the case of “Anokha (Smt.)
Vs. State of Rajasthan and others” 2004(1) SCC 382, cited by the
appellant, to distinguish the same on the ground that in the said case, the
parties knew each other since long whereas in the present case, the trial
Court had found that the parties to the lis were having criminal litigation.
The trial Court was thus of the view that it would not be just and expedient
much less in the welfare of the child to be given under the guardianship of
the appellant and his wife.
Aggrieved against the aforesaid judgment of the learned trial
Court, the present appeals have been preferred by both the parties.
Learned counsel for the appellant in the 1st appeal, which has
been kept as a lead case, has argued that the learned trial Court has
unnecessary swayed with the nomenclature of the declaration dated
01.12.2017 in which Section 9(4) of the Act of 1956 was inadvertently
mentioned to treat the same as a Will otherwise there was no intention on the
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part of the respondent to appoint the appellant by way of a Will. In this
regard, counsel for the respondent has also submitted that the said
declaration, prepared under Section 9(4) of the Act of 1956, was an error of
commission as there was no intention to appoint the appellant as a guardian
of the minor child by way of a Will. It is, however, not disputed by the
counsel for the appellant that had a person been appointed by way of a Will
in terms of Section 9(4) (5) of the Act of 1956, the right of the
guardianship would arise only after the death of the natural parent/biological
mother or father. It is further submitted that insofar as the question of
acquaintance of the respondent with the sister of the appellant is concerned,
she herself has filed the reply to the petition filed under Section 7 of the Act
and Section 13 of the Act of 1956 admitting each and every averment made
therein and in this regard, pressed Section 58 of the Evidence Act, 1872 in
which it is provided that “No fact need be proved in any proceeding which
the parties thereto or their agents agree to admit at the hearing, or which,
before the hearing, they agree to admit by any writing under their hands, or
which by any rule of pleading in force at the time they are deemed to have
admitted by their pleadings”. It is further submitted that in case of a
illegitimate girl child, the mother is the only natural guardian and in this
regard he has referred to Section 6(b) of the Act of 1956, which read as
under:-
“6. Natural Guardians of a Hindu Minor:-
the natural guardians of a Hindu minor, in
respect of the minor’s person as well as in
respect of the minor’s property (excluding his or
her undivided interest in joint family property),
are:
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FAO Nos.1793 2920 of 2018 -6-
(a) XXXX
(b) In case of an illegitimate boy or an
illegitimate unmarried girl, the mother, and
after her, the father.”
It is further submitted that one of the bottleneck for appointing
the appellant as the guardian was the pending criminal litigation between
them as the appellant had admittedly registered one FIR No.144 against the
respondent on 21.6.2017. However, he has submitted that the said FIR has
now been quashed by this Court vide its order dated 4.12.2018 passed in
CRM-M-47001-2017 titled as “Harjinder Kaur and others Vs. State of
Haryana and others” on the basis of a compromise arrived at between the
parties on 28.11.2017 which came into being at the stage when the
respondent had applied for anticipatory bail in this Court. He has further
submitted that there is no other case, much less criminal, pending between
the parties as of now after the happy ending in that CRM-M-47001-2017. It
is also argued that the learned Court below has erred in not appreciating the
law laid down by the Supreme Court in the case of Anokha (Smt.) in which
the facts were almost similar as in that case also the girl child was given in
the guardianship of an Italian couple, who was though known to the family
of the girl child from the past many years. It is argued that in the said case
the Supreme Court has laid down certain guidelines after referring to the
provisions of Central Adoption Resource Agency [CARA] but according to
him the CARA is not applicable to the facts of the present case in view of
Section 56(3) of Chapter VIII of the Juvenile Justice (Care and Protection of
Children) Act, 2015 [for short ‘the Act of 2015’] which deals with the
‘Adoption’. Section 56(3) of the Act of 2015 read as under: –
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FAO Nos.1793 2920 of 2018 -7-“Nothing in this Act shall apply to the
adoption of children made under the
provisions of the Hindu Adoption and
Maintenance Act, 1956.”
He has also submitted that since both the parties to the lis are
either Hindus or Sikhs and are governed by the provisions of the Act and the
Act of 1956 and in this regard he has referred to Section 2 of the Act of 1956
in which it is provided that “the Act to be supplemental to Act 8 of 1890. The
provisions of this Act shall be in addition to, and not, save as hereinafter
expressly provided, in derogation of, the Guardians and Wards Act, 1890”.
He has thus submitted that the provisions of Section 7 of the Act and Section
13 of the Act of 1956 were invoked by the appellant for the purpose of
seeking custody of the minor child and in that regard in view of Section
56(3) of the Act of 2015, the provisions of CARA would not apply. He has
also submitted that neither the provisions of CARA nor the provisions of the
Adoption Regulations, 2017, which have been enacted in view of the powers
conferred by Clause (c) of Section 68 read with Clause (3) of Section 2 of
the Act of 2015, would apply because in the present case, the child is to be
given in guardianship by the biological mother. Learned counsel for the
appellant has further submitted that the necessity for appointing a guardian
of the child has arisen because of the adoption law of United Kingdom. In
this regard, he has referred to the provisions of the Adoption and Children
Act, 2002 [for short ‘the Act of 2002’] of the United Kingdom and also
Paragraphs 316A and 316B of the Immigration Rules. It is submitted that in
order to adopt a child in England, the person must be appointed as guardian
by the Indian Court in order to take the child to United Kingdom to complete
the process of adoption. Although the Act of 2002 is not produced as a
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whole but it is submitted that as soon as the child is brought lawfully to the
territories of the United Kingdom for the purpose of adoption then the
prospective adoptive parents have to comply with certain legal requirements
which are summarized as under: –
“1. Applied for their suitability to adopt a child
by a local council or voluntary adoption
agency – i.e. IAC
2. Complied with the assessment process.
3. Received confirmation from the agency in
writing approving them as suitable to be an
adoptive parent.
4. Received notification from the Secretary of
State in writing that he is ready to issue a
certificate of eligibility.
5. Within 14 days of the couple’s arrival in UK
with their child, they must notify their local
council informing them about their intention
to adopt the child. Once this notification has
been received by the local council, the child
be a protected child under the law and her
placement will be monitored by the council.
6. Child can stay in the UK during which the
adoption process can be made through the
UK Courts. If adoption order is granted by
UK Court than the child will acquire British
Citizenship.”
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FAO Nos.1793 2920 of 2018 -9-It is further submitted that paragraph 316A of the Immigration
Rules provides the requirement for limited leave to enter the United
Kingdom with a view to settlement as a child for adoption. The requirements
to be satisfied in the case of a child seeking limited leave to enter the United
Kingdom for the purpose of being adopted (which, for the avoidance of
doubt, does not include a de facto adoption) in the United Kingdom are as
under:
“(i) is seeking limited leave to enter to
accompany or join a person or persons
who wish to adopt him in the United
Kingdom (the “prospective parent(s)”), in
one of the following circumstances;
(a) both prospective parents are present
and settled in the United Kingdom
or is being admitted for settlement
on the same occasion that the child
is seeking admission, and has had
sole responsibility for the child’s
upbringing;… and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is
unmarried and is not a civil partner, and
has not formed an independent family
unit; and
(iv) can, and will, be maintained and
accommodated adequately without
recourse to public funds in
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FAO Nos.1793 2920 of 2018 – 10 –accommodation which the prospective
parent or parents own or occupy
exclusively; and
(v) will have the same rights and obligations
as any other child of the marriage or civil
partnership; and
(vi) is being adopted due to the inability of the
original parent(s) or current carer(s) (or
those looking after him immediately prior
to him being physically transferred to his
prospective parent or parents) to care for
him, and there has been a genuine
transfer of parental responsibility to the
prospective parent or parents; and
(vii) has lost or broken or intends to lose or
break his ties with his family of origin’
and
(viii) will be adopted in the United Kingdom by
his prospective parent or parents in
accordance with the law relating to
adoption in the United Kingdom, but the
proposed is not one of convenience
arranged to facilitate his admission to the
United Kingdom.
Limited leave to enter the United
Kingdom with a view to settlement as a
child for adoption.”
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FAO Nos.1793 2920 of 2018 – 11 –
Similarly, paragraph 316B of the Immigration Rules provides
as under: –
“A person seeking limited leave to enter the
United Kingdom with a view to settlement as
a child for adoption may be admitted for a
period not exceeding 24 months provided he
is able, on arrival, to produce to the
Immigration Officer a valid passport or
other identity document and has entry
clearance for entry in this capacity”.
Insofar as the intended parents are concerned, they are also
supposed to show that:-
“(i) They currently live and are settled in the
UK legally and that there is no time limit
on their stay. Mr. and Mrs. Sharma are
both British Citizens (see passport).
(ii) They can currently adequately support
and house Kashni without needing any
support from public funds (see financial
statement and report of independent sw)
(iii) As Mr. Mrs. Sharma meet these two
conditions, they qualify as prospective
adoptive parent who can bring Kashni to
the UK.
(iv) The child must meet specific requirements
in order to qualify to join the couple in
the UK: She cannot support herself
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FAO Nos.1793 2920 of 2018 – 12 –financially, is not leading an independent
life and is not married: She is under 18
years and has not made any independent
family unit; she has no family ties left
with her birth family, she was adopted
because the birth parents could not care
for her and a genuine transfer of parental
responsibility has taken place and any
adoption is not for the purpose to make
entry to the UK easily.”
Learned counsel for the appellant has thus submitted that there
are numerous checks and balances created for the welfare of the child who is
removed from the guardianship of the biological parent and is taken to
foreign land for the purpose of adoption. He has also submitted that certain
guidelines have also been laid down by the Supreme Court in the case of
Anokha (Smt.) (Supra), which are reproduced as under: –
“1) The respondents No.2 and 3 will file an
affidavit before the District Court, Alwar
with an undertaking to adopt the child within
two years and to produce the child, if so
required, till proof of adoption is filed with
the District Court;
2) The respondents No.2 and 3 shall keep in
deposit with the District Court an amount of
Rs.50,000/- (Rupees fifty thousand only) to
cover the air fare for the possible
repatriation of the child to India till the child
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FAO Nos.1793 2920 of 2018 – 13 –is legally adopted; the amount shall be kept
by the District Court in a short term fixed
deposit with any Nationalised bank and the
Fixed Deposit Receipt is to be held to the
credit of the minor, Alka. Upon proof of her
adoption by the respondents No. 2 and 3 the
amount deposited shall be forthwith returned
to the said respondents or their duly
authorized representative together with the
interest accrued thereon.
3) The respondents No. 2 and 3 must
undertake by affidavit filed before the
District Court to submit annual reports to
the District Court of the child’s welfare and
progress in school with photographs and to
inform the District Court of any change of
address till the child is legally adopted The
Registry of this Court is directed to send two
copies of this judgment together with two
copies of the affidavit of the appellant dated
1st October 2003 and the annexures thereto
to the CARA, Ministry of Welfare,
Government of India one set of which is to be
retained by CARA and the other forwarded
by it to the relevant Indian Diplomatic
Mission in Italy for their record in the event
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FAO Nos.1793 2920 of 2018 – 14 –any follow up action is necessary. The
appeal is allowed and disposed of as above.
It is also submitted by him that primarily the Court has to see
the welfare of the minor. In this regard, reference has been made to Section
13 of the Act of 1956, which read as under: –
“13. Welfare of minor to be paramount
consideration.- (1) In the appointment of
declaration of any person as guardian of a
Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.
(2) No person shall be entitled to the
guardianship by virtue of the provisions of
this Act or of any law relating to
guardianship in marriage among Hindus, if
the court is of opinion that his or her
guardianship will not be for the welfare of
the minor.”
Learned counsel for the appellant has also referred to all the
decisions mentioned by the Supreme Court in the case of Anokha (Smt)
(Supra), which are also mentioned herein for a ready reference:-
“1. “Laxmi Kant Pandey Vs. Union of
India” (2001) 9 SCC 379
2. “Indian Council Social Welfare Vs.
State of A.P. and others” (1999) 6
SCC 365
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FAO Nos.1793 2920 of 2018 – 15 –
3. “Sumanial Chhotalal Kamdar Vs.
Asha Trilokbhai Shah” (1995) 3 SCC
700
4. “Karnataka State Council for Child
Welfare and another Vs. Society of
Sisters of Charity St. Gerosa Convent
and others” 1995 Supp (4) SCC 529
5. “Laxmikant Pandey Vs. Union of
India” (1991) 4 SCC 33
6. “Laxmi Kant Pandey Vs. Union of
India” (1987) 1 SCC 66
7. “Laxmi Kant Pandey Vs. Union of
India” 1985 Supp SCC 701
8. “Lakshmi Kant Pandey Vs. Union of
India” (1984) 2 SCC 244″
Learned counsel for the respondent has also supported the
arguments of the counsel for the appellant as the respondent has also filed
2nd appeal being aggrieved against the impugned order dated 6.3.2018 as she
has voluntarily taken a decision to give her child to the appellant and his
wife in their guardianship looking at her bright future and welfare in their
hands as she is an unwed mother.
We have heard learned counsel for the parties and perused the
record with their able assistance.
The issues involved in this case are as under: –
“1. Whether the respondent had executed a Will while
making declaration on 1.12.2017 and, if so,
whether in the presence of a Will, the appellant
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FAO Nos.1793 2920 of 2018 – 16 –could have been appointed as a guardian in terms
of Section 9(4) (5) of the Act of 1956?
2. Whether the absence of appellant’s sister Anu
Sharma from the witness box is fatal to the case of
the appellant to prove that the family of the
appellant or his sister had an acquaintance with
the respondent, who has otherwise filed an
admitted written statement?
3. Whether in the absence of any civil or criminal
litigation, now pending between the parties, and
keeping in view the better future prospects much
less for the welfare of the minor, the Court can
appoint the appellant as a guardian?
Insofar as the 1st question is concerned, in case there is a Will
executed by the Hindu mother for appointing a person as a guardian of her
minor illegitimate child, in respect of the minor’s person or property or in
respect of both, the Will would come into effect only after the death of the
testator. There is no doubt or exception to this law because the Will would
only come into operation after the death of the testator and not in his/her life
time. However, from a bare perusal of the document dated 1.12.2017, which
is labelled as a declaration under Section 9(4) of the Act of 1956, we are of
the considered opinion that there was no intention on the part of the
respondent to appoint the appellant as a guardian by way of a Will rather it is
the duty of the Court to lift the veil to look into the language used in the
document to find out the true purpose of the executant of the document and
not to be swayed with the nomenclature or the title given in the document.
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FAO Nos.1793 2920 of 2018 – 17 –
In this regard, reference could be had to para 6 of the said affidavit of the
declaration dated 1.12.2017, which read as under:-
“6. That the declarant will have no right
over the minor child namely Kashni Neeta
Sharma presently aged about 10 months
and nor shall claim any right over the child
in any manner in future and the appointed
and declared guardian shall be free to look
after the child and take the child with him
and take any other decision relating to the
child with regard to the welfare and
maintenance and education etc.”
It is thus apparent that the intention was to appoint guardian in
praesenti and not in future. Thus, the first question is answered in the
manner hereinabove that from the record we have found that the respondent
had not desired to appoint the appellant as a guardian of her minor child in
future by way of a Will which would naturally come into effect only after
her death. The first objection raised by the learned trial Court in this regard
is, therefore, answered.
In regard to the 2nd issue about the doubt of the trial Court in
regard to the acquaintance of the family of the appellant with the respondent
through his sister Anu Sharma is concerned, though it is a matter of fact that
Anu Sharma did not enter the witness box to state about her acquaintance
with the respondent but the facts averred in the application filed under
Section 7 of the Act read with Section 13 of the Act of 1956 have all been
admitted by the respondent in her reply, therefore, Section 58 of the
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FAO Nos.1793 2920 of 2018 – 18 –
Evidence Act would come to the rescue of the appellant in which it is
provided that the fact which is not disputed need not to be proved.
The 3rd and the last question with regard to the welfare of the
minor child is concerned and with the quashing of the FIR by this Court vide
order dated 4.12.2018 and in the absence of any other litigation having been
brought to our notice, pending between the parties, may be civil or criminal,
we are of the considered opinion that the anxiety of the trial Court not to
appoint the appellant as the guardian of the minor would be no more in
existence. There is no error as such committed by the trial Court in this
regard because we are also of the considered opinion that if there is any
litigation pending between the parties then it would not be in the welfare of
the minor by giving his/her guardianship to a person who is asking for it.
The last but not the least is the issue of welfare of the minor
child. We have considered this fact that the respondent is an unwed mother
and does not possess sufficient means to give sufficient security, education
etc. to the minor child whereas the appellant and his wife are the persons of
means, who are of the Indian origin, issueless, living in United Kingdom for
the last so many years and having their established business/profession. The
English Law, which we have already referred to in the earlier part of this
judgment, also provides checks and balances in order to protect the interest
of the minor child. Moreover, the decision in the case of Anokha (Smt)
(Supra) rendered by the Supreme Court, the child, who was given in
guardianship by the biological mother after taking into consideration the
provisions of CARA as well as by laying down certain guidelines, which we
have already referred to in the earlier part of the judgment and would also
reiterate the same for the purpose of impressing upon the appellant and his
wife to follow. Although in the directions contained in para No.17 of the
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FAO Nos.1793 2920 of 2018 – 19 –
decision rendered by the Supreme Court in the case of Anokha (Smt)
(Supra), the amount of `50,000/- has been ordered to be deposited in the
District Court to cover the air fare for the possible repatriation of the child to
India till the child is legally adopted. Keeping in view the present scenario
we direct the appellant in the 1st appeal to deposit an amount of `5 lakh in
the District Court, Panchkula with a further direction to submit all the details
about the process of adoption taking place at United Kingdom of the said
child. The said information has to be sent by the appellant to the District
Judge, Panchkula immediately after the adoption and various steps taken
with regard to her adoption, up bringing etc. and after every year thereof.
All these measures have been taken by this Court in view of the mandatory
provisions of Section 13 of the Act of 1956 which also enjoins a duty upon
the Court to watch the interest and welfare of the minor.
With these observations, both the appeals are hereby allowed
and the impugned judgment is set aside and as a necessary corollary, the
appellant and his wife are appointed as guardian of Kashni Neeta Sharma
and are permitted to take her to United Kingdom with them for the purpose
of her adoption.
A photocopy of this order be placed on the file of connected
case.
(RAKESH KUMAR JAIN)
JUDGE
(ANUPINDER SINGH GREWAL)
11.12.2018 JUDGE
Vivek
Whether speaking /reasoned : Yes/No
Whether Reportable : Yes/No
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