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
*****
2. FAO No.2920 of 2018 (OM)
*****
Harjinder Kaur
. . . . . Appellant
Vs.
Anil Sharma and another
. . . . . Respondents

*****
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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(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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“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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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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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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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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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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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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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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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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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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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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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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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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