BENGT INGMAR ERIKSSON Vs. JAMNIBAI SUKHARYA DHANGDA

JUDGEMENT

(1.) VERY unusual and unprecedented circumstances have given rise to filing of these two motions, and the complex issues arising there from are required to be answered not only by purely legal approach but with human considerations and bearing in mind welfare of two minor girls. The facts to be stated in hereafter would unfold the traumatic experience suffered by innocent people involved in this episode and would also highlight the precautions which must be taken before declaring a child as 'destitute' under the provisions of Bombay Children Act, 1948.

(2.) JAMNIBAI is a resident of Village Chulane in Bassein Taluka of Thane District, and she was residing there with her husband and two minor daughters Gulab and Laxmi. Both Jamnibai and her husband were working as labourers collecting fire -wood from the nearby forests. Gulab was born on January 12, 1975, while Laxmi on January 2, 1979. On March 19, 1980 Jamnibai with her husband left for work early in the morning leaving the two minor girls in the house along with their third child, a 12 year old boy. Jamnibai returned back from her work late in the evening and found that the two minor daughters were missing from the house. Jamnibai carried the search in the village and round about, but was unable to trace the two girls, and thereupon on the next day lodged missing report No. 10/80 with the Bassein Police Station. On March 20, 1980 at about 6.45 P.M. the two girls were found by a police constable attached to Gamdevi Police Station at Nanachowk, a place near Grant Road Railway Station in Central Bombay. The constable found the girls crying on the street and thereupon removed them to the police station at about 8 P.M. The girls were then sent to Remand Home at Dongari. On March 21, 1980 the two girls were produced before the Metropolitan Magistrate, Juvenile Court, Umerkhadi in accordance with Section 40 of the Bombay Children Act, 1948. The Magistrate directed that the girls should be kept in the Remand Home. The elder girl on being interviewed in the Remand Home stated that she hails from Bassein and the other girl was her sister. The elder girl also disclosed their names to the authorities of the Children Home. On March 27, 1980 the girls were shifted to Additional Observation Home at Mankhurd, Bombay. The photographs of the two girls were taken in Man -khurd Observation Home and on June 4, 1980 the girls were sent to Bassein to ascertain whether their parents could be traced. A report was made on the next date that it was not possible to trace the parents at Bassein.

(3.) FROM March 20, 1980, the date on which the girls were found by the constable of Gamdevi Police Station, both the girls were produced before the Juvenile Magistrate from time to time and were detained in the Observation Home at Mankhurd. On June 5, 1980, Mrs. Mrudula Rao, who is employed as a representative by the Family Association for Inter -country Adoption incorporated in Sweden, approached Juvenile Court for permission to ascertain whether any child in the Remand Home could be offered for foreign adoption and on permission being granted, selected Gulab and Laxmi for being considered to be given in foreign adoption. Mrs. Rao thereafter, as constituted attorney of one Lidrot of Sweden, filed Miscellaneous Petition No. 365 of 1980 for appointment as guardian of Gulab in accordance with provisions of Section 9 of the Guardians and Wards Act, 1890, Miscellaneous Petition No. 452 of 1980 was filed by Mrs. Rao on August 20, 1980, as constituted attorney of one Eriksson of Sweden for being appointed as guardian of Laxmi. The necessary documents in support of the claim in the two applications were filed. Miscellaneous Petition No. 365 of 1980 was dismissed by a single Judge of this Court on September 17, 1980 on the ground that Gulab and Laxmi were siblings and they should not be separated. Miscellaneous Petition No. 452 of 1980 was withdrawn on September 2, 1980. Prior to this date, on August 4, 1980 the Juvenile Court had passed order declaring both the girls to be destitute under Section 45 of the Bombay Children Act.