MASTER ARPAN CHHETRI Vs. MRS. SUJATA SEN

JUDGEMENT

(1.) The Court: The applicant is the Chief Executive Officer of Future Hope. Future Hope is a trust duly registered under the Indian Trust Act. 1882. Future Hope maintains and runs shelter homes at different parts of Kolkata for destitute minors. The applicant claims that she has been taking care of running the trust for the welfare of several destitute children. The applicant has had a respectable career and has been involved widely public and social service. The applicant from time to time and on behalf of Future Hope, for the purpose of welfare of several children has been working towards exchange programmes with different countries for the purpose of giving such destitute and abandoned children a sense of responsibility and belonging. Future Hope claims to have carried out extensive rehabilitation programmes for abandoned, orphaned, destitute children in Kolkata and has established several children's homes. Future Hope has been issued a licence in terms of the provisions of the West Bengal Women's and Children's Institutions (Licensing) Rules, 1958. The trust has recently received an invitation from one Tanglin Rugby Club for a Rugby Tournament to be held in Singapore on 7th and 8th October, 2017. The applicant has made this application for a declaration that the applicant may be appointed as a guardian of person and property of one Arpan Chhetri. It is stated that the said male child had arrived on or about 3rd June, 2007 and from the information given by the child it appears that he was born of Hindu parents namely Muktinath Chhetri and Sharmila Chhetri. The applicant contends that after various searches made by Future Hope, the parents of the male child could not be identified. Moreover, after the arrival of the child at Future Hope the parents or any one of them never had visited the said child and did not show any interest in the welfare of the said child. It is claimed that Future Hope has taken care of the welfare of the child. The applicant has disclosed materials and necessary details concerning the said child where from it appears that the applicant has taken care of the said child. The child is in need of care and protection. The applicant in the supplementary affidavit has disclosed an application dated 8th June, 2017 made before the Chairperson, Child Welfare Committee, Eliot Road praying for enrolment of Future Hope's child as per the norms followed by the child welfare committee. The application has also been filed under the Juvenile Justice (Care and Protection of Children) Act, 2015 for the children at the 7 residential homes of Future Hope. The said applications are pending before the appropriate authorities. The applicant undertakes that after the tournament in Singapore is over she would ensure the return of the male child at the earliest and inform this Court of the same and produce the child on the returnable date.

(2.) The learned Counsel appearing on behalf of the Passport Authorities submit that all legal formalities are required to be complied with before a Passport could be issued in favour of the mail child. The learned Counsel has referred to Clause 3.4(d) of the Passport rules, which requires that a legal guardian could also apply for the Passport of a minor child and in such a case the legal guardian besides standard documents would be required to produce a certified copy of the order appointing the applicant as a legal guardian.

(3.) The duty of a Court exercising in parens patraie jurisdiction as in cases involving custody of a minor child is all the more onerous. Welfare of the minor in such cases being the paramount consideration the Court, before any order could be passed needs to be satisfied that the interest of the minor would be best protected by the guardian to be appointed by the Court. It is true that father being a natural guardian of a child has a preferential right to claim custody of the son. However, the paramount consideration is the welfare of the minor and not the legal right of a particular party. The difficulty that arises in the instant case is that the parents of the minor are untraceable. However, it cannot be doubted on the basis of material on record that the welfare of the child has been duly taken care of by the applicant and in the event the applicant is not permitted to sign the required documents, the minor might loose the opportunity to travel abroad and participate in the tournament. On consideration of the welfare of the child the applicant shall be treated as a legal guardian of the minor by the Passport Authorities in terms of Clause 3.4(d) of the passport rules and the applicant shall be permitted to sign swear and make other declarations before the passport authorities as may be required for issuance of the passport in favour of the minor. This order, however, shall be subject to the final order that may be passed in this proceeding. The applicant shall try to ascertain the whereabouts of the parents of the minor and serve a copy of this application along with this order upon the parents of the minor. In addition, the order shall be posted on some conspicuous part of the court house and of the residence of the minor if could be ascertained in the meantime. This order shall also be published once in the Bengali Daily "Bartaman" and once in the English daily "The Statesman" within one week from date. The publication shall clearly specify that this matter is made returnable on 30th October, 2017. The parents of the minor shall be entitled to pray for modification and or variation of this order on the adjourned date. The parents shall also be entitled to approach the State Legal Services Authority for legal aid. The proceedings before the CWC, however, shall not be affected by the order passed in this proceeding.