Delhi District Court
Mr.Michel Buchwalder vs The Indian Council For Child Welfare on 7 December, 2010
IN THE COURT OF SHRI RAKESH KAPOOR
DISTRICT JUDGE-I : DELHI
Guardianship Case No. 178/10
Unique ID No. 0240IC0468562010
1. Mr.Michel Buchwalder
S/o Mr. Charles Buchwalder
2. Mrs. Dominique Buchwalder
W/o Mr.Michel Buchwalder
Both residents of:
Sur les Clos 150,
2829 Vermes, Switzerland.
Through their duly-constituted Attorney
Sister Danyetta,
Missionaries of Charity,
12-Commissioners Lane,
Delhi - 110 054. ......Petitioners
Versus
1. The Indian Council for Child Welfare,
4, Deendayal Upadhyaya Marg,
New Delhi - 110 002.
2. Missionaries of Charity,
a Society duly registered under
the Societies Registration Act,
having its orphanage at
12-Commissioners Lane,
Delhi-110054
....Respondents
Date of institution of petition :12.10.10
Date on which judgment/order was reserved :07.12.10.
Date of pronouncement of judgment :07.12.10
JUDGMENT
This petition under Sections 7 & 26 of the Guardians & Wards Act, has been filed by petitioners through their Attorney Sister Danyetta, praying that they be appointed as the joint guardians of the minor female (GP-178/10) (Page 1 of 5) child Miss Renu Buchwalder, originally named as Renu (born on 27.09.2005). It has been disclosed in the petition that petitioners are residents and citizens of Switzerland. They were married on 14.03.1998. They have been blessed with one child named Master Mael (born on 06.04.2003) and as per their medical reports, the chances of their having any further child of their own are remote. Being very fond of children and having a desire to give home and shelter to a destitute child, and to complete their family, they are keen and desirous of being appointed as guardians of a minor female child. It is stated that minor female child Renu Buchwalder, originally named as Renu was relinquished by her unwed mother with Missionaries of Charity, Kanpur on 03.01.2007. Vide order dated 19.09.2008, the Child Welfare Committee, Kanpur (U.P.) has declared the said child legally free for adoption. As per reports available, this minor child was born on 27.09.2005. The said child has been transferred from Missionaries of Charity, Kanpur to Missionaries of Charity, Delhi on 18.06.2009. Since then the child is in the foster care and custody of respondent No.2.
2- Notice of the petition was issued to the respondents and citation was also affixed on the Notice Board of the Court House. Both the Respondents have filed their respective reply to the petition stating therein that they have no objection if the prayer of the petitioners is allowed. 3- In support of the petition, Sister Danyetta has placed and proved the power of attorney executed by the petitioners in her favour as Ex.P1. She tendered her evidence vide affidavit Ex.PW1/A wherein she reaffirmed all the averments made in the petition. She has placed and proved on record marriage certificate of the petitioners as Ex.P2; child study report of the minor, child photograph and medical report & certificate of the child as Ex.P3 & P4 (colly); letter from the adoptive parents, accepting the position of the minor as Ex.P5; Sterility & Health certificates alongwith medical reports of the adoptive parents as Ex.P6 (colly); health certificate & consent letter of their biological child as Ex.P7 (colly); salary certificate, income tax (GP-178/10) (Page 2 of 5) certificate, bank statement and list of belongings as Ex.P8 (colly); Home study report as Ex.P9; foster permission to adopt the minor, issued by Service of Social Deeds, Central County Authority for Adoption, Delemont, Switzerland as Ex.P10; police clearance certificates alongwith the reference letters as Ex.P11 (colly); declaration of willingness of the petitioners to adopt the child as Ex.P12; undertaking given by the petitioners as Ex.P13; acceptance letter of the petitioners as Ex.P14; agency undertaking furnished by Fondation Enfant-Espoir, an agency for international adoptions in Switzerland, as Ex.P15; General power of attorney executed by the petitioners as Ex.P16; birth certificates, copies of passports and certificates of good conduct of the petitioners as Ex.P17 (colly); certificate of clearance issued by CVARA as Ex.P18; and no objection certificate issued by CARA as Ex.P19.
4- Sister Antonile, one of the Sisters of the Missionaries of Charity (respondent No.2) tendered her evidence vide affidavit Ex.RW1/A. She has proved on record the certificate of abandonment issued by Child Welfare Committee, Kanpur as Ex.R1, child study report and the photograph of the minor as Ex.P3 & P4 (colly); Clearance certificate issued by CVARA as Ex.P18; and no objection issued by CARA as Ex.P19. She testified that minor female child namely Renu Buchwalder, originally named as Renu (born on 27.09.2005) was relinquished by her unwed mother with Missionaries of Charity at Kanpur on 03.01.2007. As per reports available, this minor child was born on 27.09.2005. The said child has been transferred from Missionaries of Charity, Kanpur to Missionaries of Charity, Delhi on 18.06.2009. She testified that minor child Miss Renu Buchwalder was having cleft of the lip and palate and now she has been operated for the same. She also testified that their institution has no objection if the petition is allowed.
5- I have heard the learned Counsel for the petitioners and have gone through the records carefully.
6- Section 7 of the Guardians & Wards Act provides that for (GP-178/10) (Page 3 of 5)
appointment of the guardian, paramount consideration is the welfare of the minor. An application under Section 7 must be decided in the discretion of the court after due consideration of the matters provided under Section 17 of the Act, namely the personal law of the minor, the age, sex and religion of the minor, the character and capacity of the proposed guardian, the wishes if any, of a deceased parent, any existing or previous relations of the proposed guardian with the minor or his property and the wishes of the minor if he is old enough to form an intelligent preference. Section 26 relates to the removal of ward/minor outside the jurisdiction of the court. Permission to remove the minor outside the jurisdiction of the court may be granted for good and sufficient grounds especially for the welfare of the minor.
7- It is manifest from the pleadings and evidence adduced on record that the petitioners were married on 14.03.1998. They have been blessed with one male child. Sterility certificate Ex.P6 depicts that petitioner No.2 presents a secondary sterility for various treatments, ovarian stimulation and artificial insemination have produced no positive results. Hence the petitioners, in order to complete their family, want to adopt a female child. Perusal of statement of RW1, coupled with Child Study Report Ex.P5 reveals that minor female child namely Renu Buchwalder, originally named as Renu (born on 27.09.2005) was relinquished by her unwed mother with Missionaries of Charity at Kanpur on 03.01.2007. She was not able to talk due to complete cleft of the lip and palate and now has been operated for the same. The said child has been transferred from Missionaries of Charity, Kanpur to Missionaries of Charity, Delhi on 18.06.2009. Since then the child is in the foster-care and custody of respondent No.2. As per reports available, this minor child was born on 27.09.2005. Vide document Ex.R1, Child Welfare Committee, Kanpur has declared the minor child as an abandoned child and legally free for adoption. As regards the petitioners, it is evident from the statement of PW1, coupled with documents Ex.P8 (colly) that petitioner No.1 hold a full (GP-178/10) (Page 4 of 5) time job with Donze-Baume Fabrique whereas petitioner No.2 is working as a Nurse with Hopital du Jura and their gross monthly salary is CHF 8,500/- (equivalent to INR 3,42,742/-) and CHF 2,865/- (equivalent to INR 1,15,516/-). Thus, it can be inferred that the petitioners are capable to maintain themselves, their biological son as well as the female child to be adopted and it will be in the welfare of the minor female child if the prayer of the petitioners is allowed.
8- Accordingly, I allow the petition and appoint the petitioners as guardians of the minor female child namely Renu Buchwalder, originally named as Renu (born on 27.09.2005). Petitioners/ their attorney are also permitted to remove the child outside the jurisdiction of this court to which the Petitioner is the subject. The petitioners are directed to execute a surety bond in the sum of Rs.5,00,000/- (Rupees Five Lakhs) with an undertaking to produce the said child before this Court as and when required. The petitioners are also directed to send through the agency i.e. `Fondation Enfants-Espoir (as mentioned in the document Ex.P15)', quarterly progress reports of the child to this court, as also to respondent No.1, for a period of two years and half yearly thereafter until her adoption is complete or she attains the age of majority, whichever is earlier. After completion of formalities, necessary certificate be issued in favour of the petitioners. File be consigned to record room.
Pronounced in open court ( RAKESH KAPOOR) on 07.12.2010. DISTRICT JUDGE-I: DELHI (GP-178/10) (Page 5 of 5)