Nichola John Addington and Another vs Barnard and Another

Rakesh Kumar Jain, J.—Challenge in this appeal is to the order passed by the Guardian Judge, Chandigarh, dated 27.5.2009, whereby an

application filed by the Appellants u/s 8 of Guardian and Wards Act, 1890, (for short, the ""Act""), was dismissed and also an order dated

30.11.2009, whereby an application filed u/s 47 of Code of Civil Procedure, 1908 (for short, "" Code of CPC "") for review of the order dated

27.5.2009 was rejected.

A few skeletal facts are necessary to unfold the controversy between the parties. On 19.11.2006, Respondent No. 1, who was unmarried, gave

birth to a female child in The Christian Hospital at Jagadhri. When the child was seven days'' old, she left the child in the custody of the Appellants

after executing a relinquishment deed dated 18.12.2006 alleging that she is an unwed mother whose husband had left her in lurch is unable to bring

up the child. All that had been done was out of shame as the birth of a child by an unwed mother is looked down upon the society.

The Appellants then filed an application u/s 8 of the Act for their appointment as legal guardian of the female child. They impleaded mother of

the child as Respondent No. 1 and General Public as Respondent No. 2. Respondent No. 1 filed her admitting written statement to the application

in which she had categorically alleged about her incapacity to rear the child and also about the relinquishment deed, in para Nos. 3 and 6, which

reads as under:

That para No. 3 is correct. The answering Respondent is living with her sister and her husband since the birth of the child and is at their mercy. The

answering Respondent has no source of income.

That para No. 6 is correct. The answering Respondent had willingly executed Relinquishment Deed dated 18.12.2006 in favor of the Petitioners

relinquishing all her rights over the child in favour of the Petitioners. Since 18.12.2006, the Petitioners are looking after the child.

In the end, she had prayed that she would have no objection if the Appellants are appointed as legal guardian of her female child.

Apparently, Respondent No. 1 had not contested the application filed by the Appellants who wanted to be appointed as legal guardian of the

minor child. However, the learned Court below dismissed the application by observing that ""I find that Respondent No. 1 herself stated that she is

living with her sister and brother at their house meaning thereby, it is crystal clear that apart from her one of the nearest relative of the Respondent

is taking care of the child"" The Court had further observed that ""the Respondent is making reliance upon the relinquishment deed through which she

has relinquished her right with the Petitioner but relinquishment deed is not duly proved by the Respondent and none of the attesting witnesses of

the relinquishment deed has been examined by the Respondent

During the pendency of the application filed u/s 8 of the Act, one significant development has taken place as Respondent No. 1 has got

remarried as per Christian rites with one Vikas William. Certificate of marriage dated 25.10.2008 is part of record as Annexure A-7. It is

significant to mention here that Respondent No. 1 has again been blessed with a female child from the loins of Vikas William on 21.8.2009. Birth

Certificate of the said child is part of the record as Annexure A-9.

The turn of events ultimately brought happiness to the doors of Respondent No. 1 after she had been ditched by an unscrupulous person.

After the application was dismissed by the learned Guardian Judge on 27.5.2009, the Appellant had immediately filed an application u/s 47 of

the Code of CPC for review of the order on the ground that there is an apparent mistake in the impugned order where it is observed that the child

is also being looked after by the brother and sister of Respondent No. 1. It was brought to the notice of the Court that in fact, Respondent No. 1

is at the mercy of her brother and sister and the child is in the custody of the Appellants since the very beginning i.e. after seven days of her birth

but the Guardian Judge, without examining this aspect of the matter, dismissed the review application on the ground that the Appellants may seek

remedy of appeal instead.

Mr. M.L. Sarin, learned Senior Counsel appearing for the Appellants has vehemently argued that the Appellants had filed the application to take

legal custody of the child in terms of Section 8 of the Act which provides that the Court can pass an order if an application is filed by the person

desirous of being, or claiming to be, the guardian of the minor. At the time of passing of the order in terms of Section 17 of the Act, the Court has

to take into consideration various aspects in which welfare of the child is supreme. Since Respondent No. 1 had given birth to the female child in

question as an unwed mother, definitely, she could not have taken the child along-with her to the family of her husband (Vikas William). Learned

Counsel has also submitted that both the Appellants have kept the minor child from the very beginning and in the face of the admitting written

statement filed by Respondent No. 1 and in the absence of any objection raised by the General Public, who has been served by this Court by way

of publication in the News Paper, the application deserves to be allowed. In support of his contention, learned Counsel has relied upon two

judgments of the Supreme Court in the cases of Nil Ratan Kundu and Another Vs. Abhijit Kundu, and also Smt. Anjali Kapoor Vs. Rajiv Baijal, .

On the other hand, Mr. Vikas Suri, learned Counsel appearing for Respondent No. 1 has supported the stand taken in the written statement

and submitted that the child was given in the custody of the Appellants by her free will without there being any pressure, coercion or undue

influence on her mind. He submits that the Appellants are nicely looking after the child.

After hearing learned Counsel for the parties and keeping in view the facts and circumstances of the case, I am of the considered view that the

orders passed by the learned Guardian Judge dated 27.5.2009 and 30.11.2009 are patently illegal and are liable to be set aside because it is a

case where the Court has to not only examine the pleadings but has also to take into consideration the circumstances in which the application has

been moved. Respondent No. 1 has specifically stated that being unwed mother, she could not have brought up the child in the society, therefore,

the child was given to the Appellants for the purpose of her well being, moreover, she is happily married and has again been blessed with another

daughter.

This Court has time and again held that the only consideration about the custody of minor child is the welfare of the child and not the rights of

the parties. In my opinion, the welfare of the child would be with we Appellants in the given circumstances.

After taking into consideration the totality of circumstances of the case, I find that the custody given by Respondent No. 1 to the Appellants by

her own free will and without any undue influence cannot be questioned by the Court as she has not made any allegations against the Appellants for

not looking after the child properly.

In view thereof, the present appeal is allowed and the impugned orders are hereby set aside. No costs.