Delhi District Court
Mr. Joe Wilfred Pinto vs The Indian Council For Child Welfare on 25 January, 2011
IN THE COURT OF SHRI RAKESH KAPOOR
DISTRICT JUDGE-I : DELHI
Guardianship Case No. 03/11
Unique ID No. 0240IC0002112011
1. Mr. Joe Wilfred Pinto
S/o Mr. Victor Felix
2. Mrs. Sharon Margaret Pinto
W/o Mr.Joe Wilfred Pinto
Both residents of:
Flat No. 1601, Al Fardan Building,
Sheikh Khalifa Street,
Abu Dhabi, U.A.E
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 :03.01.10
Date on which judgment/order was reserved :25.01.11.
Date of pronouncement of judgment :25.01.11
JUDGMENT
This petition under Sections 7 & 26 of the Guardians & Wards Act, has been filed by petitioners through their Attorney Sister Danyetta, (GP-03/11) (Page 1 of 5) praying that they be appointed as the joint guardians of the minor female child Miss Abigail Joanne Pinto, originally named as Nirmala (born on 28.12.2008). It has been disclosed in the petition that petitioners are Christian by religion & faith. They are Indian citizens and are presently residing in Abu Dhabi (U.A.E.). They were married on 02.01.1997. Due to medical reasons, the chances of their having any biological child of their own are remote. Being very fond of children and having a desire to give home and shelter to a destitute child, they are keen and desirous of being appointed as guardians of minor female child Miss Abigail Joanne Pinto, originally named as Nirmala. It is stated that minor female child Miss Abigail Joanne Pinto, originally named as Nirmala is an abandoned and destitute child. She was abandoned/ left by her unwed mother with Missionaries of Charity at Ranchi (Jharkhand) on 12.12.2009. The Child Welfare Committee, Ranchi (Jharkhand), vide its order dated 04.03.2010 has declared the minor child as legally free for adoption. Later on, she was transferred to the respondent No.2 on 24.04.2010. 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 replies 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 child study report of the minor, child photograph and medical report & certificate of the child as Ex.P2 & P3 (colly); declaration of willingness as Ex.P4; child acceptance letter as Ex.P5; undertaking furnished by the petitioners as Ex.P6; Home study report of the petitioners prepared by Ms. Omana Balagopal Menon of U.A.E., an agency duly recognised by the CARA, as Ex.P7; undertaking furnished by the said agency as Ex.P-8;
(GP-03/11) (Page 2 of 5) certificates sterility and health as Ex.P9; salary & employment certificates, property documents, financial statement, bank statements & fixed deposit receipts etc., as Ex.P10 (colly); police clearance certificates alongwith, birth & marriage certificates, copies of the adoptive parents' passports, recommendation letters, child care arrangement etc. as Ex.P11; and their family photographs as Ex.P12 (colly).
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 child study report and the photograph of the minor as Ex.P2 & P3 (colly); Order issued by the Child Welfare Committee, Ranchi (Jharkhand), declaring the minor child legally free for adoption, as Ex.R-1; and no objection issued by CARA as Ex.R-2. She testified that minor female child namely Miss Abigail Joanne Pinto, originally named as Nirmala is an abandoned and destitute child. She was abandoned/ left by her unwed mother with Missionaries of Charity at Ranchi (Jharkhand) on 12.12.2009. The Child Welfare Committee, Ranchi (Jharkhand), vide its order dated 04.03.2010 has declared the minor child as legally free for adoption. Later on, she was transferred to the respondent No.2 on 24.04.2010. 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 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 (GP-03/11) (Page 3 of 5) 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 02.01.1997. They have not been blessed with any child. Sterility certificate Ex.P9 depicts that petitioners have undergone fertility treatment since 2004 which also includes three unsuccessful IVF cycles; the cause for failure of treatment remained unexplained. Perusal of statement of RW1, coupled with Child Study Report Ex.P2 & P3 (colly); reveals that minor female child namely Miss Abigail Joanne Pinto, originally named as Nirmala is an abandoned and destitute child. She was abandoned/ left by her unwed mother with Missionaries of Charity at Ranchi (Jharkhand) on 12.12.2009. The Child Welfare Committee, Ranchi (Jharkhand), vide its order dated 04.03.2010 has declared the minor child as legally free for adoption. Later on, she was transferred to the respondent No.2 on 24.04.2010. 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 28.12.2008. Vide document Ex.R1, Child Welfare Committee, Ranchi (Jharkhand) has declared the minor child as an abandoned child and legally free for adoption. Document Ex.R2 shows CARA has given no objection certificate to the placement of the minor child with the prospective adoptive parents. As regards the petitioners, it is evident from the statement of PW1, coupled with salary & employment certificates that petitioner No.1 is working as a Head of Mechanical Department with VECO Engineering, Abu Dhabi; his monthly salary is AED 33,450/- (equivalent to INRs.4,18,125/- approximately) and that petitioner No.2 is working as a Receptionist with SNC Lavalin Gulf Contractors LLC and she is drawing a gross salary of Dhs.5,000/- per month (equivalent to INRs.62,500/- approximately). Thus, it can be inferred that the petitioners are capable to maintain themselves as well as the female child to be (GP-03/11) (Page 4 of 5) 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 Miss Abigail Joanne Pinto, originally named as Nirmala (born on 28.12.2008). Petitioners are also permitted to remove the child outside the jurisdiction of this court to which the Petitioners are 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 sponsoring agency, 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 25.01.2011. DISTRICT JUDGE-I: DELHI (GP-03/11) (Page 5 of 5)