JUDGMENT
Venkatachala, J.
1. Petitioners in G & W. C. No. 17/89, on the file of the Court of I Additional Civil Judge at Mangalore, Dakshina Kannada, have presented this appeal feeling aggrieved by an order made therein on 30-6-1989 refusing to grant the application made under Sections 7, 10, 17 and 26 of the Guardians and Wards Act, 1890 (‘the Act’), respecting guardianship of two minor children.
2. Mr. Urbano Cerantola and Mrs. Mariella Lunardon Cerentola are husband and wife of Italian nationality and domicile. While the former is the Head Master and Teacher of a State Secondary School, the latter is a Teacher in a Lower Secondary School, both residing in their own residential villa composed of three floors and 15 rooms at 41, Mons, Rodolfi, 36061 Bassano del Grappa (Vicenza), Italy. Their annual income is said to be of the order of Lire 63,163,603, its equivalent in Indian Rupees being of the order of 6,60,000-00. The husband aged 46 years and the wife aged 40 years though are said to be fond of having children, are unable to have any of their own being afflicted with irreversible sterility. Their fondness for children and anxiety to become parents have made them register themselves with ‘Amici Trentini’ of Italy to obtain eligible minor children of Indian origin for adoption. That ‘Amici Trentini’ – a Child Welfare Agency recognised by the Government of Italy and enlisted by the Government of India, as an Agency to sponsor inter-country adoption of Indian minor children, having obtained a home-study report from the Social and Health Department of the District relating to the said husband and wife, who were eager to take in adoption two Indian children, has found them, taking into account their academic qualifications, financial status, dwelling conditions, mutual compatibility as married partners, psychological factors, tax, temperance and social records, medical records and the reports of a Psychologist and Social Worker received in the matter, to be a couple not only eligible but most suitable to adopt two minor girls from India. The Juvenile Court of Venice, which is the Competent Authority in the matter of adoptions to be made by the Italian couples according to the adoption laws of Italy, on an examination of the couple, has found them to be morally, ethically and financially fit to adopt two minor foreign children.
Anitha Marina born on 4-2-1974 and Savitha Marina born on 15-2-1977 are two minor siblings. Their father, who married after the death of their mother and did not like to have the siblings to live at his home with his second wife, gave them away on 1-7-1981 to St. Joseph’s Prashant Nivas – a reputed Centre (Orphanage) to take care of and give protection to children who are abandoned or have become destitutes or orphans. Thus, the two minor siblings lost their parental home, parental care and concern, parental love and affection, and lived and grew for several years in the Orphanage, among other similar unfortunate children, resigning themselves to their unfortunate lot and adjusting to the living conditions of an Orphanage obviously cursing their selfish father who had abandoned them by sacrificing their future and well-being, preferring a joyous life with his second wife taken after the death of their loving and affectionate mother, his first wife.
Society of Sisters of Charity, St. Gerosa Convent, Malleswaram, Bangalore, which has been running the Orphanage – St. Joseph’s Prashant Nivas at Jeppo in Mangalore, it appears, shifted in the year 1988 its inmates – Anitha Marina and Savitha Marina, the siblings, to Nirmala Social Welfare Centre at Ullal in Mangalore – another Orphanage also run by them, the latter Centre taking care of children available for adoption, in its hope and endeavour to find for the siblings suitable adoptive parents who could provide them a family life and take proper care of their future education, upbringing and well-being. Then, Society of Sisters of Charity, St. Gerosa Convent, cunning the aforesaid two Orphanages in Mangalore, being a Society recognised by the Ministry of Social Welfare, Government of India as eligible to process cases of minor Indian children for inter-country adoption, is said to have informed the ‘Amici Trentini’ at Italy, the Government’s recognised Association which finds children to its members for adoption, about the availability of the said siblings for adoption by Italian parents. That ‘Amici Trentini’, which had, as its members, Mr. Urbano Cerantola and Mrs. Mariella Lunardon Cerantola, on a thorough study, appears to have persuaded them to take the siblings in adoption, having regard to their tender age, health, character, intelligence, school results, etc. Readiness expressed by the said Italian couple to become adoptive parents of the siblings and take care of their well-being, education, future careers, is said to have brought to the siblings cheer, joy and hope of their good future, which obviously might not have been there earlier, in that, in Indian conditions, the girls brought up in Orphanages are not treated on par with girls brought up in family homes. Society of Sisters of Charity having found, on a thorough consideration of all matters relating to suitability of Mr. Urbano Cerantola and Mrs. Mariella Lunardon Cerantola to become adoptive parents of the siblings, who had been under its care arid protection for over nine years, filed a petition before the Court of District Judge at Mangalore, Dakshina Kannada, seeking appointment of Mr. Urbano Cerantola and Mrs. Mariella Lunardon Cerantola as guardians of the minor siblings with a view to bring about effectual adoption by them of the siblings according to the adoption laws prevailing in Italy, the Society of Sisters of Charity being petitioner-1 and Mr. Urbano Cerantola and Mrs. Mariella Lunardon Cerantola being petitioners 2 and 3 respectively therein. Along with the petition, all the documents including the photographs of the adoptive parents and their residential villa were produced. The Court of District Judge since transferred the said case to the Court of I Additional Civil Judge, Mangalore, for disposal in accordance with law, the latter Court has made an order on 30-6-1989 dismissing the petition filed by the petitioners. It is that order which is under appeal, as stated at the outset.
3. We have thoroughly examined the order under appeal and anxiously considered all aspects of the matter dealt with by the Court of Civil Judge, having regard to the emotional involvement of the siblings and the tender age of the young girls of mature understanding and their future upbringing and well-being. Besides hearing the learned Counsel on all aspects of the matter dealt with by the order under appeal, we have appraised ourselves of the correct state of mind of each of the siblings, of their feelings and of their choices as to their proposed adoption by petitioners 2 and 3, by talking to them individually after getting them to our Chambers and creating an atmosphere of full freedom for expression of their views on all matters. The Court of Civil Judge, as seen from its order under appeal, on a consideration of all the material which became available in the case, has held that petitioners 2 and 3 would be the suitable parents and guardians for the minor siblings, recording a finding thus:
“So all this goes to show that petitioners 2 and 3 are a suitable couple. They are employed and their financial position is sound and they have owned a residential villa therein. They are hale and healthy and they have no any symptoms of either physical or mental disease and as such petitioners 2 and 3 are a suitable couple to adopt and to be appointed as guardians.”
Despite the said findings, the Court of Civil Judge has refused to grant the petitioners’ application for appointing petitioners 2 and 3 as guardians of minor siblings and permitting them to take the minor siblings to Italy for their eventual adoption in accordance with adoption laws prevailing in that Country, the reasons weighing with it therefor being –
(i) that the siblings are not the inmates of Nirmala Social Welfare Centre, Ullal, as they are living in the house of Sister Dorothy Saldana at Jeppoo;
(ii) that the siblings, who are sisters being aged 15 and 12, are capable of looking after themselves and they will shine in India itself as they are intelligent and good in their studies in the School;
(iii) that in the petitioners’ application, it is not stated that they have been offered for adoption by an Indian couple and that no Indian couple has come forward to adopt them;
(iv) that the Surrender Document of the father of
the siblings surrendering them to St. Joseph’s Prashant Nivas, Jeppoo, Mangalore, in the year 1981, is not produced; and
(v) that the name of the father of the siblings is not disclosed and it is not shown that the mother of the siblings had died.
4. What has to be now seen by us is whether the said reasons which have weighed with the Court of Civil Judge for rejecting the petitioners’ application for appointment of petitioners 2 and 3 as guardians of minor siblings and permitting them to take the minor siblings to Italy for their adoption in accordance with adoption laws prevailing in that Country, are sustainable or unsustainable as sought to be made out on behalf of the petitioners as would call for the reversal of the order under appeal. Hence, we shall proceed to examine the sustainability or otherwise of the said reasons seriatim.
Re. Reason (i):
The minor siblings, according to the Court of Civil Judge, are not the inmates of Nirmala Social Welfare Centre, Ullal, in that, they have stated in their statements made before it that they are residing in the house of Sister Dorothy Saldana at Jeppoo, Mangalore. The statement of Anitha Marina, which is marked as Exhibit P-1, is in Kannada and in her hand-writing. According to that statement, Anitha Marina and her younger sister having become orphans after the death of their mother, were surrendered by their father to the Orphanage – St. Joseph’s Prashant Nivas, in that, he (their father) and his second wife were not prepared to look after them in their house; their father has never turned up thereafter; if they had their parents, they would not have been left in the lurch; fortunately for them, they have been looked after by the Sisters in the Orphanage and schooled by them because of their kindness; she was worried of her future and she had a longing to join the adoptive parents in the foreign country and was desirous of obtaining higher education there; and she wants the accompaniment of her younger sister and both of them have taken a decision in the said matters on their own. The statement of Savitha Marina, which is marked as Exhibit P-2, is substantially the same. The said statements no-where disclose that the siblings were residing in the house of Sister Dorothy Saldana at Jeppoo, as adverted to by the Court of Civil Judge. In fact, when we had an occasion to talk to the siblings by getting them to our Chambers, they made it clear that they were living in the Orphanage-Nirmala Social Welfare Centre, Ullal, after being moved there from the Orphanage – St. Joseph’s Prashant Nivas at Jeppoo. The assumption of the Court of Civil Judge that the siblings are residing in the house of Sister Dorothy Saldana at Jeppoo, overlooks the fact that Sister Dorothy Saldana belongs to the Society of Sisters of Charity, St. Gerosa Convent (petitioner-1) and that no Sister can have her own house to reside according to the discipline governing Sisters and Sister Dorothy Saldana stays only in Nirmala Social Welfare Centre, Ullal, as she is put in charge of adoption of children from the Centre. Hence, we are of the view that the said reason should not have weighed with the Court of Civil Judge in rejecting the petitioners’ application for appointment of petitioners 2 and 3 as guardians of minor siblings.
Re. Reason (ii):
The reason that the siblings should not be given in adoption to foreign parents as there is a possibility of their coming up in life in India itself because of their intelligence and the progress they are making in their studies, which has weighed with the Court of Civil Judge for refusing to appoint petitioners 2 and 3 as guardians for taking them in adoption, looks rather amusing. When children of mature age are offered for adoption by foreign parents, the latter would never agree for adopting the former if they are not intelligent, healthy and good in their studies, in that, it is difficult to expect of such children to cope up with the problem of then assimilation in the family of foreign adoptive parents arising on account of cultural, racial or linguistic differences. What is overlooked by the Court of Civil judge in this regard is the recommendation made by the Supreme Court that what should really matter in the case of deciding the suitability of the Indian child of mature age for adoption by foreign parents having regard to the fact that even children past the age of 7 years have been happily integrated in the family of their foreign adoptive parents, in LAKSHMI KANTH PANDEY v. UNION OF INDIA by observing thus:
“We would suggest that even children above the age of 7 years may be given in inter-country adoption but we would recommend that in such cases, their wishes may be ascertained if they are in a position to indicate any preference.”
In the Instant case, when the wishes of the siblings ascertained by the Court of Civil Judge were unequivocal as to their preference in the matter of being adopted by foreign parents, which wishes were reiterated before us, the fact of the siblings having grown up, of their being Intelligent or of their being good in studies should not have weighed with the Court of Civil Judge in imposing Its own view in the matter. When the siblings stated while we were trying to ascertain their wishes in the matter of their preference of their being adopted by foreign parents, that being girls brought up in an Orphanage, no member from a good Indian family would come forward to take them in marriage and even if taken in marriage by some such person, they would be thrown out of the family as persons unfit to be in the family having grown in an Orphanage, we could not having regard to the prevailing conditions in the Country, say anything to the contrary. The siblings-
the girls, in their age, who are to be regarded as mature enough to take a proper decision as to their future, when have preferred to become the adoptive children of foreign parents and find their home with them having come to know all about them, which, in every respect, is found to be good, it would be harsh and rather dangerous to impose upon them a wish of the Court that they should continue to reside in the orphanage itself in the hope that they may shine in this Country itself ignoring the realities prevailing in the Country as to the vicissitudes, to which such girls could be exposed. We are, therefore, not left in doubt that the fact that the siblings are intelligent, good in studies, good looking and healthy should not have weighed with the Court of Civil Judge in ignoring their preference to be adopted by foreign parents, in their genuine hope of finding a home of parents with love and affection, which they had been althrough denied, and in their eagerness and anxiety to get higher education and grow up in stature and become useful to society. We cannot help observing that the Court of Civil Judge has lost sight of the fact that for getting proper education abroad, children from this Country were always sent and even today, affluent families in India prefer to have education for their children in foreign countries. It has also overlooked the fact that It would be difficult to find for Orphans, adoptive parents both of whom are Teachers and who are eager to have adoptive children in their home and are ready to give good education to them and bring them up in life by providing a home and security for their future.
Re. Reason (iii):
We find this reason as wholly unfounded, in that, it overlooks what has been stated in Paragraph 9 of the petitioners’ application thus:
“It has not been possible considering the age of the said minors Anitha Marina and Savitha Marina to find suitable adoptive parents in India and no one has come forward to adopt them.”
Hence, the reason so weighed with the Court of Civil Judge in rejecting the petitioners’ application for appointment of petitioners 2 and 3 as guardians of the siblings is baseless.
Re. Reason (iv):
The reason of non-production of the Document of Surrender by the Orphanage, to which the siblings had been surrendered by their father, that has weighed with the Court of Civil Judge for refusing the application of petitloner-1 Sponsoring Agency, in the matter of appointment of petitioners 2 and 3, the intending adoptive parents, as guardians of the siblings, appears to us to be the result of a mis-understanding on the part of that Court of the Judgment of the Supreme Court in Lakshmi Kant Pandey v. Union of India and ors., to when the obtaining of a Document of Surrender by the Orphanage was possible as would warrant demand of its production. We are, therefore, impelled to excerpt the material observations from the Judgment of the Supreme Court in Lakshmi Kant Pandey v. Union of India to know the exact views of the Supreme Court respecting a Document of Surrender of a surrendered child to be obtained from its biological parents, before dealing with the case on hand.
Particulars of a Surrender Document:
“…..to make sure that the child has in fact been surrendered by its biological parents, it is necessary that the Institution or Centre or Home for Child Care or social or child welfare agency to which the child is surrendered by the biological parents, should take from the biological parents a document of surrender duly signed by the biological parents and attested by at least two responsible persons and such document of surrender should not only contain the names of the biological parents and their addresses but also information in regard to the birth of the child and its background, health and development.”
When a Surrender Document has to be obtained:
“Now, it should be regarded as an elementary requirement that if the biological parents are known, they should be properly assisted in making a decision about relinquishing the child for adoption, by the Institution or Centre or Home for Child Care or social or child welfare agency to which the child is being surrendered. Before a decision is taken by the biological parents to surrender the child for adoption, they should be helped to understand all the implications of adoption including the possibility of adoption by a foreigner and they should be told specifically that in case the child is adopted, it would not be possible for them to have any further contact with the child. The biological parents should not be subjected to any duress in making a decision about relinquishment and even after they have taken a decision to relinquish the child for giving in adoption, a further period of about three months should be allowed to them to reconsider their decision. But once the decision is taken and not reconsidered within such further time as may be allowed to them, it must be regarded as irrevocable and the procedure for giving the child in adoption to a foreigner can then be initiated without any further reference to the biological parents by filing an application for appointment of the foreigner as guardian of the child. Thereafter, there can be no question of once again consulting the biological parents whether they wish to give the child in adoption or they want to take it back. It would be most unfair if after a child is approved by a foreigner and expenses are incurred by him for the purpose of maintenance of the child and some time on medical assistance and even hospltalisation for the child, the biological parents were once again to be consulted for giving them a locus penitentia to reconsider their decision.”
The points emerging from the above views of the Supreme Court touching the Surrender Document of a minor child to be obtained from such child’s biological parents by an Institution or Centre or Home for child care or social or child welfare agency, to which such child is surrendered, for their proper understanding, could be put thus:
(i) The Institution or Centre or Home for child care or social or child welfare agency, to which the child is being surrendered for adoption, should, before taking the child sought to be surrendered, acquaint such child’s biological parents of the implications of adoption including the possibility of their child being adopted by a foreigner making it impossible for them to have any further contact with that child, so as to enable them to take a considered decision in the matter of relinquishment of the child;
(ii) The biological parents should not be subjected to any duress in the matter of their making a decision as to the relinquishment of their child;
(iii) If the biological parents, even with the full knowledge of the implications of adoption of their child and the possibility of such child being given away to a foreigner in adoption, make a decision to surrender the child, they have to be given three more months’ time to re-consider their decision. But, the decision taken by the biological parents if is not reconsidered within the time to be so allowed, the surrender of the child must be regarded as irrevocable and the procedure for giving the child in adoption to a foreigner can then be initiated without any further reference to the biological parents by filing an application for appointment of the foreigner as guardian of the child. Thereafter, question of once again consulting the biological parents-whether they wish to get the child in adoption or they want to take it back, could never arise;
(iv) When the child is so surrendered by the biological parents, it is necessary for the Institution or Centre or Home for child care or social or child welfare agency, to which the child is surrendered, to take from the biological parents a Document of Surrender to ensure themselves that the child has, in fact, been surrendered by its biological parents. The document of surrender to be so obtained shall contain the names of biological parents and their addresses, the information in regard to the birth of the child, its background, health and development. The signatures of the biological parents should be got on such document of surrender with attestation by atleast two responsible persons.
The above points touching the document of surrender are matters concerning normative and procedural safeguards set down by the Supreme Court for being followed in giving an Indian child in adoption to a foreigner, so as to cover an uncovered field of legislation, becomes apparent from the very observations of the Supreme Court in LAKSHMI KANT PANDEY v. UNION OF INDIA which read thus:
“Since we found that there was no legislation enacted by Parliament laying down the principles and norms which must be observed and the procedure which must be followed in giving an Indian child in adoption to foreign parents, we entertained the Writ Petition and after hearing a large number of social organisations and voluntary agencies engaged in placement of child in adoption, delivered an exhaustive Judgment on 6th February, 1984 discussing various aspects of the problems relating to inter-country adoption and formulating the normative and procedural safeguards to be followed in giving an Indian child in adoption to foreign parents.”
While the points, adverted to above, are those concerning the safeguards to be provided to the biological parents of a child surrendered for adoption to a foreigner by means of judicial legislation as indicated by the Supreme Court itself, care has been taken by the Supreme Court to warn the Court dealing with the guardianship application as to the dangers involved in bringing to the notice of the biological parents about the guardianship application relating to their surrendered child, in Paragraph 22 of its Judgment in Lakshmi Kant Pandey v. Union of India, thus:
“Lastly, we come to the procedure to be followed by the Court when an application for guardianship of a child is made to it. Section 11 of the Guardians and Wards Act, 1890 provides for notice of the application to be issued to various persons including the parents of the child if they are residing in any State to which the Act extends. But, we are definitely of the view that no notice under this Section should be issued to the biological parents of the child, since it would create considerable amount of embarrassment and hardship if the biological parents were then to come forward and oppose the application of the prospective adoptive parent for guardianship of the child. Moreover, the biological parents would then come to know who is the person taking the child in adoption and wish this knowledge they would at any time be able to trace the whereabouts of the child and they may try to contact the child resulting in emotional and psychological disturbance for the child which might affect his future happiness. The possibility also cannot be ruled out that if the biological parents know who are the adoptive parents they may try to extort money from the adoptive parents. It is therefore absolutely essential that the biological parents should not have any opportunity of knowing who are the adoptive parents taking the child in adoption and therefore notice of the application for guardianship should not be given to the biological parents. We would direct that for the same reasons notice of the application for guardianship should also not be published in any newspaper.”
Even in its subsequent decision in Lakshmi Kant Pandey v. Union of India the matter relating to the aforesaid warning administered in its aforesaid earlier decision is emphasised thus:
“We may again emphasise, even at the cost of repetition, that notice of the application for guardianship of a child should in no case be published in the newspapers, because otherwise the biological parents would come to know who is the person taking the child in adoption and they might, with this knowledge, at any time be able to trace the whereabouts of the child and they may try to contact the child resulting in emotional and psychological disturbance for the child and the possibility cannot be ruled out that they may also attempt to extort money from the adoptive parents. No notice of the application should for the same reasons be issued to the biological parents and this is particularly important in case of an unwed mother who has relinquished the child, for to disclose her name to the Court or to give her notice would be highly embarrassing.”
The aforementioned points touching the documents of surrender, which are in the nature of safeguards provided by the Supreme Court for the biological parents respecting their surrendered child, if seen in the context of the warning administered by the Supreme Court time and again to the Court dealing with the guardianship application of such child against the giving of any intimation or notice to the biological parents in that regard, the legal position, which emerges, could be understood thus –
Any surrender of a child by the biological parents made to the Institution or Centre or Home for child care or social or child welfare agency subsequent to the decision of the Supreme Court in Lakshmi Kant Pandey v. Union of India and others must be supported by a document of surrender obtained from the biological parents by the Institution or Centre or Home for child care or social or child welfare agency. Such document of surrender must be taken in the manner suggested in that decision and should contain not only the particulars of the surrendered child and its biological parents, but also the signatures of the biological parents duly attested by atleast two responsible persons. The fact that the document of surrender should contain the particulars of the surrendered child and its biological parents and that the same should further contain the signatures of the biological parents duly attested by atleast two responsible persons, shows that the obtaining of such document of surrender would become necessary if the surrender of the child had taken place subsequent to the aforesaid decision of the Supreme Court and not before. Further, if the safeguards provided by the Supreme Court in its aforesaid decision in the matter of re-claim of the surrendered child by its biological parents within a period of three months from the date of surrender on re-consideration of their decision as to the surrender (relinquishment), it becomes obvious that the safeguards so provided by the Supreme Court for the biological parents were not intended to cover a case of surrender of their child made before the rendering of the aforesaid decision by the Supreme Court in Lakshmi Kant Pandey v. Union of India inasmuch as the judicial legislation, made in that regard by the Supreme Court cannot be regarded as applying retrospectively to cases of surrender of children made by biological parents earlier.
In the light of what we have said about the legal position in relation to a document of surrender to be obtained from the biological parents, what remains for our consideration is whether non-production of a document of surrender concerning the siblings could have been the reason for the Court of Civil Judge in refusing to grant the application of petitioner-1 for appointment of petitioners 2 and 3 as guardians of the siblings.
The two siblings surrendered to St. Joseph’s Prashant Nivas at Jeppoo, Mangalore, on 1-7-1981 by their father-Krishna, while they were aged 7 years and 4 years respectively, have stated, as seen from their statements (Exhibits P-1 and P-2), that after the death of their mother, their father, who took a second wife, not being prepared to look after them, brought them to St. Joseph’s Prashant Nivas at Jeppoo and surrendered them to that Institution; eversince they are taken care of by the Sisters of that Prashant Nivas and are schooled; however, their father has never turned up to look them eversince. The affidavit of Sister Bernard Kurian, Secretary of St. Joseph’s Prashant Nivas, speaks of the surrender of the siblings after the death of their mother. It reads:
“That two minor female children known as Anitha Marina, born on 04-02-1974 and Savitha Marina, born on 15-02-1977 were surrendered by their own father to the authorities of St. Joseph’s Prashant Nivas, Jeppoo, Mangalore, The mother of the said children had died and the father remarried. The step mother did not want the children and the father irrevocably surrendered them on 01-07-1981 to our institution. Since then our institution has brought up and educated the said minors. Neither the father nor any other relative has come to see or claim custody of Anitha Marina and Savitha Marina since their surrender to our institution in 1981.”
Further, while the certificates of birth relating to the siblings disclose the name of their father as Krishna, a Hindu, the names of the siblings are found to be Christian names. This circumstance indicates that after the siblings were surrendered to the Christian institution, Christian names are given to them. Thus, when the surrender of the siblings in the instant case by their father has occurred in the year 1981 itself, while the decision of the Supreme Court requiring the obtaining of the document of surrender from the biological parents has been rendered in the year 1984, we find it difficult to think that the requirement of obtaining the document of surrender from the biological parents, as envisaged in the decision of the Supreme Court, could apply to the case of the surrender of the siblings which had occurred in the year 1981 itself. In the said view of the matters, we cannot help thinking that non-production of the document of surrender executed by the father of the siblings at the time of surrender could have been the reason for the Court of Civil Judge in refusing to grant the application of petitioner-1 seeking appointment of petitioners 2 and 3 as guardians of the siblings.
Re. Reason (v):
The reason that there was non-disclosure of the name of the father of the siblings surrendered to St. Joseph’s Prashant Nivas – the Orphanage, and the non-mentioning of the death of the mother of the siblings by the petitioners, which has weighed with the Court of Civil Judge in rejecting the application of petitioner-1 seeking appointment of petitioners 2 and 3 as guardians of the siblings for their eventual adoption, is rather amusing. As already pointed out in dealing with unsustainability of Reason (iv) given by the Court of Civil Judge for rejecting the guardianship application of petitioner-1, Certificates of Birth produced in the case while clearly disclose the name of the father of the siblings, the statements of the siblings in Exhibits P-1 and P-2 and the affidavit of Sister Bernard Kurian filed in the case, in unequivocal terms, refer to the death of the mother of the siblings, prior to their surrender on 1-7-1981. Hence, Reason (v) weighed with the Court of Civil Judge for rejecting the application of petitioner-1 seeking appointment of petitioners 2 and 3 as guardians of the siblings, is also wholly unsustainable.
5. There is yet another important aspect of the case which needs a specific mention. When an application is made under the Act for appointment of foreign parents as guardians of minor children available for adoption, the Court concerned may have to first satisfy itself that the social or child welfare agency sponsoring the applications of foreign parents is a dependable institution. The Court’s satisfaction in this regard must necessarily depend upon the past services rendered by such Institution in the field of child welfare. When an Institution is reputed for good work in the field of child welfare, the Court should not conjecture that such institution may throw away its child well taken care of, well nursed, well schooled, for a mere monetary gain or the like. In the case on hand, when we look to the Society of Sisters of Charity, St. Gerosa Convent C/o Stella Mary’s Convent, Malleswaram, Bangalore, the Sisters of that Society have rendered and have been rendering yeoman service in the sphere of the welfare of children at great sacrifices of their personal happiness. Educational Institutions and Orphanages run by them have acquired a high reputation for good work in this State. Their attention to children, particularly girls, and love and affection, with which orphaned, abandoned or disabled girls are brought up and schooled by them, is well-known. When such an Institution, which is petitioner-1 before the Court of Civil Judge, had made an application sponsoring petitioners 2 and 3 for appointment as guardians of the siblings young girls for their eventual adoption, the Court of Civil Judge should not have dismissed that application with some casual observations, obviously with no due and proper application of its mind to all the important aspects of the matter, particularly the welfare of the siblings, with which the Institution was very much concerned.
6. In the peculiar circumstances of the case and further delay that is likely to occur in the event of our remanding the case to the Court of Civil Judge for its fresh disposal in the light of what we have said of various aspects requiring consideration in cases of the kind, we have considered it our duty to look into the material on record to satisfy ourselves whether good future is in store for the siblings if petitioners 2 and 3 are appointed as guardians and allowed to take the siblings to their Country for their eventual adoption, and proceed accordingly.
Petitioners 2 and 3, who are Head Master of a State Secondary School and a Teacher of a Lower Secondary School in Italy, look gracious when we see them in a photograph produced in the case. Their residential villa, as seen from the photograph produced in the case, looks grand and beautiful. In their substantive affidavit, which is filed in the Court, this is what they have said about their residential villa:
“They are the owners of a residential villa, situated on a site of 970 m in Bassano Gr., 41, Mons. Rodolfi Street, composed of three floors, fifteen rooms, four bathrooms, a garage, a garden and a kitchen garden for a total value of lit 350,000,000 (three hundred fifty million lira).”
Banca Popolare of Marostica in its Declaration dated 18-10-1988 produced in the case, states thus:
“We herewith state that Mr. and Mrs. – Prof. Cerantola Urbano born in Rosa on 5-1-1943 -Lunardon Mariella born in Bassano G. on 10-11-1948 are honest and solvent and their economic situation is solid.”
The General Certificate Issued by the District Attorney for Bassano Del Grappa declares that the said persons are without any criminal record. The President of the Region of Veneto has declared in an affidavit sent to the Court, thus:
“that he knows Mr. Cerantola Urbano and Mrs. Lunardon Mariella personally and he can vouch for their social behaviour and quality of life.
The above-mentioned couple is fully part of our community which is not racially prejudiced and in which other foreign minors, including from India, have already been introduced without any problem.
Our area is proud of its social sanitary, cultural and recreational facilities, such as a modern hospital, museums, secondary and high schools and Universities in Padova, Venezia and Verona, which allow an ideal intergration in the world of study, work and leisure.”
The Priest of the Parish of ‘Santa Croce’, in his Declaration dated October 18, 1988, declares thus:
“he knows Mr. and Mrs. Urbano Cerantola personally and that he can vouch for their moral behaviour and quality of life.
The above-mentioned couple is part of our religious community and they also devote themselves to social activities.
The Parish can testify that other young people from abroad have been successfully brought up in this area and that it offers many possibilities for youth group activities under the guidance of Ecclesiastic Authorities.”
The said Declaration of the Priest is also found in the records. Further, the State Professional Institute for Industry and Handicraft has given Declaration of the regular high annual income of the said couple (petitioners 2 and 3). A Declaration, which is sent by the President and the Judge of the Juvenile Court of Venice, reads thus:
“The above mentioned couple qualified for the adoption of two foreign minors born before 5-1-1983 on condition that they are brothers/sisters and so a ‘nulla osta’ is granted for the entry of the minors into the State territory.”
There are other documents produced in the case, which refer to the characteristics of the couple, reason for wanting the adoption and their willingness to adopt the children, thus:
“Characteristics of the couple: they met at work and immediately took a liking to each other.
After having been engaged for a year, they got married in 1973. At first they had some problems in their relationship because of different opinions but as time went by they overcame all their difficulties. Now Mr. and Mrs. Cerantola are a happy couple, with clearly complementary characteristics. They both like travelling and reading and are socially active. Besides, Mr. Cerantola has a disposition for ‘do it yourself’ and gardening. Mrs. Cerantola likes embroidery and knitting.
Reasons for wanting the adoption: Mr. and Mrs. Cerantola have only now asked for adoption because they have been five miscarriages. This experience has been a great sorrow for them but it has brought them closer and helped them mature their desire for adopting children. They are aware that the probable age of this child will require a different relationship to that needed with a younger child but they feel prepared to face up to this. Their educational preparation seems to be appropriate as it is supported also by their professional experience.
Child: being aware of the age limit, they are willing to adopt a child (even two, if brothers/ sisters) of an age between five and ten. They would have preferred an Italian child but they agreed to adopt a foreign child (having no racial prejudices) even if they are aware of the greater difficulties.”
Having looked into all the above material produced in the case and having consulted the wishes of the siblings by getting them to our Chambers, we are fully satisfied that appointment of petitioners 2 and 3 as guardians of the minor siblings and permitting them to take the minor siblings to Italy for their eventual adoption would be a great blessing for them (siblings), which they could not have ordinarily dreamt of in the normal course of events. If the application made for appointment of petitioners 2 and 3 is granted and leave sought for taking the siblings to Italy is granted, we hope and believe that having regard to the nature and favourable circumstances of the adoptive parents and also the nature of the siblings, the siblings would find a good parental home, which had been dented to them for over nine years, in that, they were in the Orphanage, and have bright and prosperous future.
7. Before parting with this case, we cannot help observing that the District Courts, which receive the applications of the kind, i.e., applications for appointment of foreign parents as guardians of minor children of Indian origin, should not shirk the responsibility of disposing them of by themselves having regard to various factors including the emotional factors of children involved in such cases, instead of getting rid of such applications by transferring them to a subordinate Court for disposal.
8. In the result, we allow this appeal, reverse the order of dismissal of the application made under the Act by petitioners, allow the petitioners’ application and appoint petitioners 2 and 3 as guardians of the persons of minor siblings – Anitha Marina and Savitha Marina and permit their removal from India to Italy for their eventual adoption by petitioners 2 and 3 and further direct the ‘Amici Trentini’ – the Association in Italy, to send report to the Court of Civil Judge at Mangalore, Dakshina Kannada, about the adoption of the siblings by petitioners 2 and 3 according to the Italian Adoption Law and in the mean time, also send interim reports to the same Court on the progress of the two minors after their arrival at the Agency for Infants in India or Social Service which is following the case for the designation of the adoptive parents every three months in the first year and every six months in the following year or years until they are effectively adopted and if, for any reason, the proposed adoption does not go through, to arrange to send back the siblings to India.
However, petitioner-1 shall give a bond to the Court of Civil Judge to its satisfaction for due performance of the obligations undertaken by it in relation to the siblings and it shall, in turn, obtain a corresponding bond from the ‘Amici Trentini’ – the sponsoring social and child welfare agency at Italy, which has sponsored the adoption of the siblings.
Copies of this Judgment be sent to the Ministry of Social Welfare, Government of India, as also the Ministry of Social Welfare, Government of Karnataka.