Shakkiel Rias vs Shahana Ummer

M.R. Hariharan Nair, J.—The question that arises for decision in this case is whether this Court can exercise powers u/s 24 of C.P.C. to transfer proceedings pending in different Family Courts where question of guardianship is involved.

Naeemsaj, the minor involved in this case was born to the 1st petitioner and 1st respondent herein. The marriage broke down subsequently and it appears that the 1st respondent is now the wife of the 2nd respondent. The paternal grand parents of the child filed O.P. 240 of 1998 in the Family Court, Thrissur seeking custody of the child as also the appointment as guardian. That was filed at a time when the father of the child, the 3rd respondent in that proceeding, was outside India. Subsequently, the respondents herein filed O.P. 459 of 1999 in the Family Court, Ernakulam seeking appointment of the present 1st respondent as the guardian. There was also a prayer to declare that the father is unfit to be the guardian of the child.

Learned Counsel for the revision petitioners submits that to avoid conflicting decisions it is necessary that O.P. 459 of 1999 is transferred to the Family Court, Thrissur for a joint disposal along with O.P. 240 of 1998. It is pointed out that the petitioners had moved the Family Court, Thrissur as early as on 29.4.1998, and that the other proceeding was filed only on 7.7.1999. Yet another contention of the petitioners is that O.P. 240 of 1998 is at the stage of evidence.

The petition is opposed by the respondents based on Sections 9 and 14 of the Guardians and Wards Act, 1890. It is argued that the child is at Eloor which is within the jurisdiction of the Family Court, Ernakulam and it is that Court alone, which has the jurisdiction to consider the case. It is also pointed out that u/s 14 the petitioners are bound to move the Family Court, Ernakulam for necessary reliefs and that a petition of the present sort invoking powers u/s 24 of the C.P.C. is not maintainable.

I have heard both sides, Section 9 of the Act provides that "if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides". However, the said provision is not decisive as regards the question of trial of the petitions in this case, insofar as there is a case for the petitioners that it was after the filing of the 1st proceeding, that is O.P. 240 of 1998, that the child has been taken to Eloor. Section 9 does not at all require that the Forum for trial of the case should change from time-to-time depending upon the residence of the child. All that is required is that at the time of filing the petition seeking guardianship of the child, the Forum should be chosen. If the child was within the jurisdiction of the Family Court, Thrissur as on 29.4.1998, definitely that Court will have the jurisdiction to try the case and it is not necessary that the case should be transferred over to the Family Court, Ernakulam when the child is shifted to Eloor. Whether the child was actually moved as above is a matter for the Court concerned to decide on evidence.

Section 14 of the Guardians and Wards Act provides as follows :

"14. Simultaneous proceedings in different Courts-

(1) If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts that one, each of those Courts shall, on being apprised of the proceedings in the other Court or Courts, stay the proceedings before itself.

(2) If the Courts are both or all subordinate to the same High Court, they shall report the case to the High Court, and the High Court shall determine in which of the Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be had.

(3) In any other case in which proceedings are stayed under Sub-section (1), the Courts shall report the case to and be guided by such orders as they may receive from their respective State Governments."

In view of the above provision it was for the petitioners to apprise the fact of pendency of O.P. 240 of 1998 before the Family Court, Ernakulam and seek necessary orders u/s 14 of the Act. It is for the Family Court so moved to report the matter to this Court and then only the jurisdiction of this Court to determine in which of the two Courts the proceedings should continue to be decided. That stage is not yet reached. Section 14 being a special provision and since the presence of such a provision is a bar to the invocation of powers u/s 24 of the C.P.C. I find that the C.M.C. is not maintainable before this Court. Parties to the two proceedings are at liberty to move the Family Courts concerned u/s 14 of the Act for necessary orders. The C.M.C. is dismissed.