- (1.) THIS appeal has been filed by Trine Hoist Thomsen against the order of the First Additional District Judge, Allahabad dismissing her application under section 7 of the Guardians and Wards Act for being appointed guardian of the person of the minor girl. Km. Chaitali. The ap pellant is a resident of Denmark. She wished to take under her guardianship a minor Indian girl and for that purpose approached the respondent. The minor is reported to he an orphan living under the care and custody of the respondent the Children's National Institute, Swaraj Bhawan Allahabad. Learned counsel appearing for the Institute has stated that the minor is an orphan and the Insti tute has no knowledge about her parents re lations or religion. The Institute, he has further stated, has no objection to the appel lant being appointed as the minor's guardian.
(2.) THE trial Court has dismissed the application on the ground that on the material available on the record, it was not established that it would be for the "well being of the minor" that the applicant be appointed her guardian. Learned counsel for the appellant contended that the affidavits had been filed in the trial Court and on the basis thereof, the Court below should have come to the conclusion that it would be for the welfare of the minor to appoint the ap pellant as the guardian. The affidavit has been sworn by the Notary Public in Den mark. Section 14 of the Notaries Act, 1952, provides- "14. Reciprocal arrangements for recog nition of notaries acts done by foreign no taries- If the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by notaries within India are recognized for all or any limited purposes in that coun try or place, the Central Government may, by notification in the Official Gazette, de clare that the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes or, as the case may be, for such limited pur poses as may be specified in the notifica tion." Although time was granted, the necessary notification has not been produced and it has not been shown that the affidavit sworn in Denmark is admissible in guardianship proceedings in Courts in India. Only a te legram sent by the Ambassador of Denmark in India to the respondent opposite party in this case has been produced which states that "according to principles in Danish ad ministration of justice there is reciprocity be tween India and Danish documents during a pending Court case in Denmark." The telegram however cannot be treated as evidence. But, even if all the facts stated in that affi davit are taken as established, no case has been made out for the appointment of the appellant as guardian. The facts that have been asserted are: that the appellant is a well-to-do lady having considerable income, she lives in Denmark and is interested in rearing an Indian child and that she is willing to be appointed the guardian of the minor's per son. The purpose of the application seeking the guardianship of the minor is to take the child to Denmark. The appellant has no in tention of coming to India or living in India. Learned counsel contends that it may not be possible for the child to get a passport for going to Denmark to join the appellant un less the appellant is appointed a guardian of the minor's person. It is clear that the pur pose of the application is primarily to se cure a licence for taking the child out of India. This is certainly not the purpose for which the Court can be moved to appoint guardian of a minor. It is not contemplated by the Guardians and Wards Act According to Article 6 of the Corpus Juris Secundum. Vol. 39, page 6, "a guardian cannot be ap pointed for minors for the purposes of hav ing them sent immediately into a foreign country:" (Ala-Describes v. Wilmer, 69 Ala. 25, 44 Am. R. 501), "nor will one be appointed for the sole purpose of transferring a minor's legal residence to a city so as to enable the minor to obtain gratuitous education at the city's expense." (N. Y.-In re. Schnipper's Guardianship, 268, N. Y. S. 302, 149. Misc. 905.) It is thus evident that the Courts do not appoint guardians only to let the child secure a passport or for getting charitable education or help.
(3.) THE purpose of appointment of a guardian by a Court under the Guardians and Wards Act is to protect the child and not to grant a licence for taking the child out of the country. As put by Bennett J. in Re. D. (INFANTS), (1943) 2'All ER 411, "the jurisdiction is based upon the need of an infant for protection which in my judg ment having regard to the authorities give this division of the Court jurisdiction to ap point a guardian." This view finds support from the speech of Lord Langdale in John-stone v. Beattie, (1843) 10 Cl and Fin. 42 (HL) at p. 145, where Lord Langdale ob served: "Amidst the differences of opinion which exist in this case, it is satisfactory to me that no doubt is thrown upon the juris diction of the Court of Chancery to appoint guardians for any infant residing in England. The whole property of an infant may be situate in a foreign country and tutors and curators of the person and estate of the in fant may have been duly appointed accord ing to the law of the country where the pro perty is; and yet it may be evident that without the authority of a guardian duly ap pointed here and subject to the control of the Court of Chancery the infant may be without the protection which may be ab solutely necessary for its welfare and even for its safety." Although it is the guardian who directly protects the minor the ultimate responsibility remains with the Court, when it appoints a guardian.;