Dharma Dutta Chaturvedi vs Principal Judge, Family Court

Pankaj Mithal, J.—Heard Sri K.P. Shukla, learned Counsel for the petitioner. No one appears for respondent No. 2 despite order dated 11.3.2014 holding service of notice upon her to be sufficient.

Petitioner applied u/s 25 of the Guardians and Wards Act, 1390 (in short ''Act'') for the custody of his three minor children.

The Family Court before whom the petition was filed vide order dated 1.4.2013 has directed for the return the plaint to the Civil Court holding that it has no jurisdiction to entertain a petition u/s 25 of the Act.

In challenging the above order the contention of learned Counsel for the petitioner is that the Family Court has misread the provisions of section 7 of the Family Courts Act, 1984 which clearly provides that the Family Court shall have the jurisdiction apart from other things inter-alia in respect of proceedings in relation to guardianship of the person or the custody of, or access to, any minor.

It would be material to refer section 7 of the Family Courts Act, 1984 in resolving the issue of jurisdiction of the Family Court to entertain a petition u/s 25 of the Act for the custody of minors. It reads as under:

Jurisdiction.--(1) subject to the other provisions of this Act, the Family Court shall--

(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b)........................

Explanation.--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:

(a)........................

(b)......................

...........................

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2)........................

A plain reading of the above provision establishes that the Family Court u/s 7 of the Act has jurisdiction to decide suits and proceedings in relations to the guardianship of the person or of a custody of any minor.

The proceedings u/s 25 of the Act are in connection with the custody of a minor/ward, i.e., either of his removal from the custody of the guardian or restoration of custody to the guardian. They are as such in the nature of custody of a minor.

In view of the above, it is apparent that the proceedings u/s 25 of the Act for the custody of the minor children would lie before the Family Court wherever it is so established and the Family Court shall exercise all powers of a District Court or any subordinate Civil Court in respect thereof.

The above view of mine find support from the decision of the Bombay High Court (Nagpur Bench) in the case of Vimalashram Gharkul of Amprapali Utkarsha Sangh Vs. Jyoti Banson Joseph, which lays down that the proceedings in relation to the guardianship of a person or custody of a minor are required to be instituted in the Family Court in view of section 7 of the Act.

In the instant case the Court below has directed for return of the plaint for presentation to the Civil Court by incomplete reading of the provisions of section 7 of the Act. It failed to take into account Clause (g) of section 7 of the Act which specifically provides for jurisdiction of the Family Court in respect of the matters relating to guardianship and custody of minor.

The Family Court in directing for return of the plaint had relied upon certain decisions.

One of the cases relied upon by the Court below is P. Madhavan Nair and others Vs. K. Ravindran Unni, . In the said case the dispute was with regard to change of custody of a minor which was entrusted to the husband u/s 26 of the Hindu Marriage Act 1955 in proceeding for divorce by mutual consent. The Division Bench of the High Court in view of the fact that the said order was passed by the Civil Court opined that the change of custody has also to be applied for before the Civil Court and that the Family Court which had come into existence subsequently would not have any jurisdiction over the matter.

The aforesaid authority is not applicable to the facts and circumstances of the present case where the proceedings have been initiated for custody of the minors u/s 25 of the Act independently rather than in connection with proceedings before the Civil Court.

In the other case Devilal Bhagat Vs. Rekha Bhagat, the matter was regarding appointment of guardian of the property of the minor. The matter was directed to be referred to the Civil Court as it involved the property of the minor and not his/her custody. Guardianship or custody of minor and guardianship of the property of the minor are two separate things which cannot be equated. In the present case only the custody of the minors is involved and there is no dispute about the guardianship of the property of the minors.

The aforesaid authority is also distinguishable and is not applicable to the facts and circumstances of the present case where only the custody of the minor is involved.

In the third case Darshanaben (Dharva Parmar) and Others Vs. Shantibhai Ratilal Parmar (Dharva Parmar) and Others, the dispute was with regard to partition of the properties and accounts of the H.U.F.

The Court held that the relief of maintenance claimed in the suit is only ancillary to the main relief of partition of the properties of the H.U.F. and for accounts and as such the Civil Court alone would have the jurisdiction to decide the dispute and it would not lie before the Family Court.

The Court cannot loose sight of the two other authorities one in Ramjeet Chabra Vs. Savita Chabra, and the other in Susila Naik v. Judge, Family Court, Rourkela and another AIR 1988 Ori 61, wherein on consideration of section 7 of the Act the Courts held that the Family Court has no jurisdiction to appoint a guardian/manager in respect of minor''s property. The view taken therein is identical to that taken by the Jharkhand High Court in the case of Devilal Bhagat (supra) and is not applicable to the facts and circumstances of this case where there is no dispute regarding appointment of guardian/manager of the properties of the minors but is confined to the custody of the minors which is a distinct cause of action squarely covered u/s 7 of the Act.

The aforesaid decisions therefore cannot be held to be laying down law that the application for the custody of minors u/s 25 of the Act would stand excluded from the jurisdiction of the Family Court rather the position is otherwise and in view of section 7 of the Family Courts Act, 1984 all suits and proceedings of the nature where guardianship and the custody of the person of minor is involved would be within the domain of the Family Court wherever they are in existence.

In view of the aforesaid facts and circumstances, the impugned order dated 1.4.2013 is quashed and the petition is allowed. However, as all the three minors as on date may have attained maturity, the Family Court is directed to consider their age and then only to proceed with the decision of the petition u/s 25 of the Act. The writ petition is allowed. No costs.