Tarun Kadam vs State of Madhya Pradesh

S.K. Palo, J.—Aggrieved by the order dated 21.8.2012 passed by the Additional Principal Judge, Family Court, Gwalior in Case No. 08/2012 Guardian & Wards Act, 1890 the plaintiff has filed this appeal u/s 19 of the Family Court Act 1984.

By the impugned order the Additional Principal Judge, Family Court, Gwalior has rejected the application u/s 7 read with Section 9(4) of Hindu Adoption and Maintenance Act, 1956.

The disputes lies in a narrow compass. The learned Additional Principal Judge, Family Court Gwalior observing that ''''Court'''' in Rule 2 (V) of Madhya Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2003 means Court of Principal Civil Court of the District, rejected the application stating that it has no jurisdiction to try the application.

The appellant - plaintiff moved an application u/s 7 read with Section 9(4) of Hindu Adoption and Maintenance Act 1956 for adoption of the subject a abandoned child who is in the custody of respondent No. 2 - Balkalyan Samiti. The same was decided by the impugned order. Therefore, in this appeal, without going into the merits of the case, we set to decide the question of jurisdiction only.

On behalf of the appellant, it is submitted that the learned Family Court erred in holding that it has no jurisdiction, whereas Section 7(g) of the Family Court Act, 1984 clearly indicates that it can decide "a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor". It has also been submitted that as per sub-section (1) (b) of Section 41 of Juvenile Justice (Care & Protection of Children) Act, 2000 provides "to adopt a child of same sex irrespective of the number of living biological sons or daughters". It has further fervently argued that the learned Family Court while deciding the application relied on the Single Bench judgment of Kerala High Court in the case of Andrew Mendez and Others Vs. State of Kerala, in which judgment of Bombay High Court in the case of In the Matter of Manuel Theodore D''Souza, has been followed. In our opinion, it is not the correct view. These cases are distinguishable from the present case. Hence, the impugned order is liable to be set aside.

Learned counsel for the appellant also submitted that under the provision of Section 68 of Juvenile Justice (Care & Protection of Children) Act, 2000, the Central Government has power to frame Rules. Thus the Central Government has framed The Juvenile Justice (Care & Protection of Children) Rules, 2007. In sub-Rule (5) of Rule 33, it is provided that for the purpose of Section 41 of the Act, ''''Court'''' implies "Civil Court which has jurisdiction in the matter of adoption and guardianship and may include the Court of District Court, Family Court, City Civil Court". These rules have been framed by the Central Government in the year 2007 and published in the Gazette of India on 26-10-2007.

It can be safely said that in the case of Manuel Theodore D'' Souza (supra), the Court had no occasion to refer The Juvenile Justice (Care & Protection of Children) Rules, 2007 as it was decided on 27.10.1999. The learned Single Judge of the Kerala High Court in the case of Andreq Mondez and others (supra) has followed the decision referred in case of Manuel Theodore D'' Souza (supra) decided in the year 1999.

Learned counsel for the respondent- State has fairly conceded that after framing of The Juvenile Justice (Care & Protection of Children) Rules, 2007, this dispute has been set at rest.

The Family Courts Act, 1984 has been enacted with a view to promote to reconciliation and secure safety, settlement of dispute relating to marriage and family affairs and for matters connected there with.

For the better understanding of the provision we extract Section 7 of the Family Courts Act, 1984.

"7. Jurisdiction - (1) Subject to the other provisions of this Act, a 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) be deemed, for the purposes of exercising such jurisdiction under such law, to be a "district court" or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends".

For the better understanding of the matter in dispute, we also reproduce the provision of Sub Rule (5) of the Rule 33 of Juvenile Justice (Care and Protection of Children) Rules 2007 -

"(5) For the purpose of Section 41 of the Act, ''Court'' implies a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the court of the District Judge, Family Court and City Civil Court".

The intend of the legislation clearly shows that the "Family Court" has the same jurisdiction which is exercisable by any District Court or any sub-ordinate Civil Courts.

In Madhya Pradesh, the Family Courts are established in different districts but jurisdiction has been restricted to the municipal areas of that place in which the courts have been established; whereas the District Courts have jurisdiction to try such cases arising out of the area other than the municipal area of that district in which the Family Court is established.

That being so, the dispute regarding the jurisdiction of Family Court is now very clear after the enactment of Juvenile Justice (Care and Protection of Children) Rule, 2007.

We descent the view expressed by the learned Single Bench of Kerala High Court in the case of Andreq Mendez & Others (supra).

We, therefore, find it absolutely safe to come to a definite conclusion that "Family Court" can have jurisdiction to entertain the application u/s 41(6) of Juvenile Justice (Care & Protection of Children) Act, 2007.

Before parting with the case, we deem it necessary to circulate copy of order this to the District Courts and Family Courts so that for such petty matters the new born kids, abandoned, destitute or similarly situated child, who has a right to have a family, a name and a nationality, should not be allowed to remain in the Balkalyan Samiti for such a long time, whereas the prospective parents are eager to adopt them and to look after them.

A copy of this judgment be sent to the Registrar General for circulation to district courts and family courts in the State.

Accordingly, allow this appeal and set aside the impugned order.