M.P. Chandrakantaraj Urs, J.
1. These two Appeals are disposed of by the following Common Order as the questions of law which arise out of them are similar as well as the facts.
2. For convenience, we state the facts of the cases in M.F.A. 2092 of 1990 as well as in M.F.A.2093 of 1990:
The Appeal is directed against the separate orders dated 26th day of February, 1990 in G & W.C. 56 of 1989 on the file of the 1st Additional Civil Judge and Judicial Magistrate, Mangalore and G & W.C. 57 of 1989. The first applicant before the lower Court in both the cases was the Society of Sisters of Charity represented by the Head of the institution - Sister Evangeline Menezes, Superior, Nirmala Social Welfare Centre, Ullal, Dakshina Kannada. The 2nd and 3rd applicants, who are the appellants in M.F.A. 2092/1990 are Mr. Armando Francesetti and Mrs. Enrice Munini Francesetti, The second and third appellants in M.F.A. 2093 of 1990 are Mr. Solaroli and Mrs. Anna Fabbri-Solaroli of Italy represented by Sister Dorothy Saldanha, Society of Sisters of Charity, St. Gerosa Convent, care of Stella Maris Convent, Malleswaram, Bangalore.
3. The first appellant-applicant made a petition under Section 7 of the Guardians and Wards Act seeking the relief of appointment as guardian of minor child Kavitha, a child born in wed-lock (legitimate), but having lost her father soon-after her birth. In that circumstance, given away to the custody of the first appellant-applicant by the mother as she was unable to support the child on account of poverty. In the other case, the child in respect of whom guardianship has sought was one Gloria, a child born out of wedlock (illegitimate). The child was therefore handed over to the first applicant-appellant to be brought up.
4. Kavitha was born on 5-12-1989, while Gloria was born on 4-4-1989. Kavitha was offered in adoption by the first applicant-appellant in M.F.A. 2092/1990, while Gloria was offered in adoption to the second and third appellants in M.F.A. 2093 of 1990.
5. The Court, as is apparent from the facts stated in the order dated 26th February, 1990, records that the application was filed by the petitioners-applicants under Section 7 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act) apparently with the ultimate object of adopting the child in question. The order further discloses that the 1st petitioner made effort with the object of interesting likely Indians and in the alternative, Indians abroad and persons of Indian origin so that suitable couple or persons among them may seek the adoption of Kavitha, The order records further disclose that the first applicant-appellant having failed to find a suitable home, ultimately, agreed to give in adoption to the custody of second and third applicants. These averments do not appear to have been disputed by any person as there was no respondent named in both the applications. It was in that circumstance and pursuant to circular instruction issued by this Court and having regard to the Decision of the Supreme Court in LAKSHMI KANT PANDEY'S CASE, : 2SCR795 the Court directed notice to Karnataka State Council for Child Welfare, an organisation registered under the Karnataka - Societies Registration Act with the object of assisting inter-State Adoption of Children as well as inter-Country Adoption in accordance with guide-lines issued by the Supreme Court in the afore-mentioned case as well as the clarification issued in the same case later (See: Lakshmikant Pandey v. Union of India, : AIR1986SC272 ). The said Council of Child Welfare submitted a detailed report which certified the applicants in both the cases as persons fit to be appointed guardians and also certified that it was in the minor's interest that second and third appellants in the respective two cases - be appointed as guardians under Section 7. But, however, a rider was added in the report and the certificate that the child had not been offered for adoption to Indian Parents and as such, the Karnataka Child Welfare Council could not clear the case of Kavitha and Gloria as before it could offer the children in question for adoption to Indian parents, they had already been offered to the applicants who are foreigners.
6. The Judge, noticing all these facts, formulated the following two points for consideration:
(1) Whether the petitioners are suitable couple to be appointed as Guardians for the minor Kavitha/Gloria?
(2) Whether the President, Karnataka State Council for Child Welfare, Bangalore is justified in not recommending the adoption of Kavitha as she is not cleared by Voluntary Coordinating Agency, Karnataka?
7. After recording a finding on the first point in favour of applicants 2 and 3, in each of the applications before him, the learned Civil Judge, on the second point formulated for consideration, came to the conclusion that the prayer in the applications should not be granted because Karnataka Council for Child Welfare, which, according to him, was the voluntary Coordinating Agency in Karnataka, had not cleared the case.
8. Aggrieved by the said orders, the present appeals are filed by the appellants before us inter alia contending that the learned Civil Judge erred in taking notice of the view expressed by the Karnataka Council for Child Welfare disregarding the legislative guide-lines which are implicit in Section 7 of the Act itself.
9. The thrust of the argument before us has been that in the light of the assertions made by the first applicant-appellant that they had tried to secure an Indian Home or Indian home abroad for the children in question not having been contradicted by any one who were notified by the Court, the Court ought not to have taken notice of comments of the Karnataka Council for Child Welfare that the child was not offered for adoption to Indian home and therefore, when that institution came into the picture, the child was already offered in adoption and therefore it could not make any attempt to find Indian home or the Indian guardians for the children in question.
10. This Court entertained this Appeal without there being any respondent, which normally is impermissible. But, however, after Appeal was registered in this Court and posted for admission, notice was once again directed to the Karnataka Council for Chief Welfare, the very institution which had been notified by the lower Court. In this context, we must observe that having regard to the provisions contained in Section 11 of the Act, as well as Order 1 Rule 10 of the C.P.C., the learned-Civil Judge ought to have treated the Karnataka Council for Child Welfare as the respondent in the proceedings before him. Otherwise, the very object of issuing notice under Section 11 to any other person occurring in sub-clause (iv) of Section 11 of the Act would lose its purpose. On the same reasoning, we have heard Mr. B.V. Heddur Shetty, learned Counsel appearing for the said Council and implead the said institution as respondents in these two Appeals.
11. Mr. B.V. Heddur Shetty does not dispute that the second and third applicants in the two applications before the learned Civil Judge were persons i.e., foreign nationals properly sponsored by the concerned agency in Italy and their applications had been processed by the said recognised agency and those recognised Agencies in Italy were to be found undoubtedly in the list maintained by Government of India as approved Agencies.
12. In the light of the observation of the Supreme Court in Lakshmi Kant Pandey's case supra, the Council does not dispute their financial status and ability to provide a good home for the two children with whom we are concerned in these cases. His only argument is, in the light of the observations made by the Supreme Court, particularly in paragraph 19 of the clarificatory Decision in Lakshmi Kant Pandey's case in C.M.P. Nos. 2726 and connected cases as reported in : AIR1986SC272 , there was failure to find an Indian home for the two children in question as the children had already been offered to foreign nationals for the purpose of adoption and therefore they could not clear the case of the children in question for adoption by applicants 2 and 3 in the two cases before the learned Civil Judge.
13. We must assume, having perused the records of the case, that the Council was furnished with all materials to file a suitable Report which, in fact the Council had filed. Operative portion of the Report found in the records at page 22 in G & W.C. 56 of 1989 reads as follows:-
'From the records of the case it is seen that the petitioners No. 2 and 3 are a couple of Italian Nationality and Domicile, and are aged 41 and 34 years respectively. The petitioners No. 2 and 3 are the partners of a company dealing in cutting and processing of magnetic plates. The petitioners No. 2 and 3 are living in a five room apartment. The financial position of the petitioners 2 and 3 is sound. The petitioners 2 and 3 have biological son named Mattia, born on 15-4-1974, 'International adoption', Tarcento, Italy, a Child Welfare Agency, recognised by the Government of Italy and enlisted by the Government of India as eligible to sponsor inter-country adoption of Indian minor children has sponsored - the application of the petitioners. The Home Study Report was compiled by the Local Health Centre.
The social worker visited Nirmala Social Welfare Centre, examined child Kavitha and the records pertaining to her. Child Kavitha was born on 5-12-1987 at St. Joseph's Prashanth Niwas Jeppu, Bangalore, in wedlock. The father of the minor Kavitha died when she was - five days old. The mother of the minor handed over her to the authorities of Nirmala Social Welfare Centre - on 1-5-1989 as she herself was unable to look after the minor due to her own ill health and poverty:
From the records of the case it is seen that the second and the third petitioners are a fit and suitable couple to adopt the child. Child Kavitha will have good home and better prospects if given in guardianship to the petitioners. However it is brought to the notice of the Honourable Court that the Voluntary -Coordinating Agency - Karnataka has not cleared this case. Hence, we do not recommend child Kavitha for inter-Country Adoption.
Karnataka State Council for Child Welfare Bangalore
Karnataka State Council
for Child Welfare Bangalore.'
From the concluding paragraph, it is evident that the Council which had been notified had no objections in regard to the qualifications of the foreign applicants concerning the two children. The Council also came to the conclusion that it was in the better interest of the minor children if the guardianship prayer was granted to 2nd and 3rd applicants respectively in each of the cases. But, however, it was brought to the notice of the Court - the Voluntary Coordinating Agency in Karnataka - had not cleared the case i.e., meaning the Council itself had not cleared the case for inter-country adoption of the children in question. The Report is followed by a certificate which is in a printed form and titled as Clearance Certificate. In the case of Kavitha, a certificate dated 11-12-1989 (so also in Gloria's case) gives the name of the child, case number in the Court, the name of the placement agency, the date of birth of the child, date of admission in the placement agency. Under the caption 'period given for adoption', it is stated that the Voluntary Coordinating Agency (V.C.A) did not receive the monthly status Report in time and when received Children were already placed for inter-country adoption. It is further mentioned under the caption 'Not free/free for inter-Country adoption', not free for inter-Country adoption. In the report, there was no mention of any reason for not clearing the children in these cases.
14. The learned Counsel Mr. Heddur Shetty submitted apparently on instruction, as noticed by us earlier, that the compelling reason for the Council not to clear was the fact that the children were not being offered for adoption to an Indian home and in the light of the observations of the Supreme Court in the clarification Decision in the Civil Miscellaneous Petitions filed by several voluntary organisations in the field, Indian child would be free for adoption by foreigners only after Voluntary Agencies in India had failed to secure an Indian home or Indian parents or Indian guardians for adoption and therefore, they could not clear it.
15. In the course of arguments submitted before us by the learned Counsel on both sides, it has been brought to our notice that pursuant to the decision of the Supreme Court in Lakshmi Kant Pandey's case supra, the Government of India, in the Ministry of Welfare has issued guidelines entitled 'Guidelines to Regulate Matters Relating to Adoption of Indian Children'. After setting out the aims and objectives for issuing guidelines, need for Family Court for development of children, review of adoption procedure, numerous duties are cast upon voluntary organisations recognised by Government of India as well as State Governments and the Administrations of Union territories. From the records, we do not find that anyone has performed all duties and obligations cast upon the voluntary organisations as well as the State Governments. In other words, the guidelines appear to be really ornamental rather than guidelines actively implemented. Unfortunately, we should comment that this reflects sad state of affairs in this Country in regard to this matter of adoptions of Indian children by foreign nationals which was so studiously considered by the Supreme Court in Lakshmi Kanth Pandey's case and the judicial norms were indicated by domestic application of human rights, regard being had to the recommendations of the report of Countries which met in Geneva in December, 1978 and adopted draft declaration of social and legal principles relating to the protection and welfare of children with special reference of fast placement and adoption national and inter-national. Though the draft declaration filed by the Committees has remained as such and to the best of our knowledge not made part of inter-national covenant or treaty, the Supreme Court had drawn copiously from the draft declaration to provide the guidelines in Lakshmi Kant Pandey's case which in turn are reflected in the guidelines issued by Government of India to which we have adverted to earlier.
16. We certainly cannot have the quarrel with Lakshmi Kant Pandey's case and the guidelines issued by the Government of India. The question which falls for determination in these two Appeals is whether the Court-below while exercising its judicial discretion under Section 7 of the Act should allow itself to be persuaded by any considerations other than the legislative guidelines which were found in the Section itself. In other words, what really falls for determination is the locus standi and legal competence of the Council to supervene with its recommendations and displace legislative guidelines because the children in question were not first made available for adoption to Indian parents. The problem of inter-State, inter-Country adoptions are visited with several hurdles to which copious reference has been made by the Supreme Court in Lakshmi Kanth Pandey's case. We should not lose sight of the fact, in our Country practically all the religions are professed and propagated. Each religion has its particular personal law to which the Members are subjected and by which they are administered. In the instant case, the second and third applicants respectively in each of the petitions are Christians. Having regard to the nationality, we must suppose that they are Catholics by faith. Therefore, what may be applicable to those who practice Christianity as a religion, may not be applicable to Hindus as defined under the codified Hindu Law. It is not known, by any material placed before us, as to how many other religious institutions run orphanages and offer children for adoption nationally and inter-nationally.
17. As submitted by Mr. R. Narayanappa, who has made an application on behalf of another institution viz., Voluntary Organisation doing the very same thing which the first applicant as well as the Council is doing that the system of using Guardian and Wards Act for the purpose of ultimate adoption has been in vogue for a long time in the erstwhile State of Bombay and Province of Bombay, later followed by the Supreme Court and the Delhi High Court. It therefore follows that after the break up of the Province of Bombay into various component States in the Union subsequently the practice appears to be to follow the procedure followed in Bombay earlier as far as possible. But no case of Hindu adoption has been brought to our notice. But this Court had occasion to examine the claim of a Hindu wife to seek independent right of adoption under Section 7 of the Hindu Adoption and Maintenance Act as Section 8 was discriminatory and therefore violative of Article 14. One of us who dealt with that matter, by order dated 26th July, 1990 held that the second petitioner therein viz., the Canara Bank Relief and Welfare Society which had offered a child for adoption by first of the petitioners therein was not competent to question the vires of the provision of law as it lacked locus standi. We have mentioned this only to evidence that there are other organisations belonging to other religions which also offer for adoption within the Country, besides those with which we are familiar in Lakshmi Kant Pandey's case and in the Appeals before us.
18. In the light of this back-ground, we find it extremely difficult to accept the plea put forward by Mr. Heddur Shetty. In order to support our conclusion, we have to state the law as it is found in Section 7. Section 7 of the Guardian and Wards Act, 1890 reads as follows:-
'7(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 this 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 any other person to be guardian instead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.'
19. The Court is bound to exercise the jurisdiction in favour of the child once it is satisfied that the order it is likely to make is for the welfare of the child. If the satisfaction is reached that the welfare of the minor is assured, the Court may make order accordingly should be read as mandatory and not directory. This view is further supported by considering the contents of Section 17 of the Act. Section 17 reads as follows:
'17(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 wilt 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.
(5) The Court shall not appoint or declare any person to be a guardian against his will.'
20. The dominant factor to be considered by the Court is the welfare of the minor and not of any procedural lapse and that too a procedure which does not contravene the law.
21. Mr. Heddur Shetty, the learned Counsel when specifically addressed in regard to legal competence of the Council to claim exclusive status applicable to whole of Karnataka, he fairly conceded that he cannot claim that status. What is strange is, the Memorandum of Association of the Council which is in the records indicates that the first appellant before us in both the cases as well as the intervenor Ashraya are members of the Council. In other words, the Central Agency and Coordinating Agencies contemplated by the Judgment of the Supreme Court in Lakshmi Kant Pandey's case has not been strictly implemented at least in the State of Karnataka. There is more than one organisation incorporated under one or the other law claiming to be voluntary Coordinating Agency for the purpose of inter-State and inter-Country adoption. All of them claim to be recognised by the Government of India. Therefore, the Council has no superior status to that of the first appellant or the Ashraya as submitted by the learned Counsel Sri Narayanappa.
22. In this circumstance, when the application before the learned Civil Judge was repeated despite the affidavit of the first applicant that it had made all attempts to find an Indian home for the children in question and had failed, the learned Civil Judge was aware, that assertion in the affidavit had not been contradicted by any one particularly the Council and ought not to have been persuaded by the fact brought to his notice by the Council that the children were not available for inter-Country adoption. That statement as certified does not appear to have any foundation in law beyond the observations made by the Supreme Court in Lakshmikanth Pandey's case. It is not in dispute that there is no specific law though Adoption Bill of 1980 has been introduced more than once and remains still at that stage and has not resulted in becoming a law. Undoubtedly, when there is no specific law occupying the field the executive can exercise executive power under Article 162 which is coextensive with its executive powers. As pointed by Mr. Narayanappa, on account of the numerous religious factors coupled with numerous other problems peculiar to India it appears to be almost an impossible task to have a common guideline or a Code on the subject. For instance, when Hindu Adoption and Maintenance Act is operative and a Hindu child is involved, the procedure for adoption would be governed by the relevant provisions of law in that and other allied laws and not by any executive order or observations made by the Supreme Court.
23. Regard being had to this state of affairs, we are compelled to conclude that once the Court had material which was not disputed by any one before it that the persons who sought the guardianship and the children whose welfare by appointing them as guardians would benefit, should not have allowed the Judge to go outside the guidelines found in Section 7 read with Section 17 of the Act and reject the application. We are therefore of the view that that part of the order in both the Judgments under appeal must be set aside and having regard to the report submitted by the Council that the applicants 2 and 3 in the two cases respectively were persons of good back-ground who are capable of looking after the children and whose guardianship they have sought and having regard to the fact that Court has recorded a finding that it is in the interest of the minor we allow the applications and modify the order accordingly.
24. We have disposed of these Appeals at the stage of admission after notice to the Counsel, having regard to the fact that the matter should not be delayed because one should not accept the prospective foreign parents or guardians to wait endlessly to take custody of children of Indian origin, if the litigation is protracted beyond reasonable time. For this very same reason, though we came aware of the duties cast on the State Government, in all such matters which may come before the Court in this State, it would be better if the Court having jurisdiction under the Guardian and Wards Act or any other law issues not only notice to the Voluntary organisations, but also to the State which has wider interest in the citizens who cannot speak for themselves. We feel that the State should be a necessary party in all these matters hence-forward and our observations will be followed by the Courts exercising jurisdiction in this behalf.
25. In the circumstances, there will be no order as to costs. Parties will bear their own costs. We place on record the assistance rendered by Sri Narayanappa in the disposal of these matters.
Appeals allowed in terms above.
After we had dictated this Judgment, Mr. Heddur Shetty made an oral application for certificate of fitness to appeal to Supreme Court. We do not think that there is any substantial question of law which requires to be considered by the Supreme Court which has not already been considered in the light of Lakshmi Kanth Pandey's case. Therefore, we decline to grant certificate of fitness.