Family Court has the authority to appoint a guardian for the minor: Ernakulam High Court: Ernakulam High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY THE 22ND DAY OF DECEMBER 2021 1ST POUSHA 1943 AGAINST THE ORDER JUDGMENT IN OPGW 1139 2017 OF VI ADDITIONAL MFA NO. 150 OF 2021 DISTRICT COURT ERNAKULAM K.S.NARAYANA ELAYATHU AGED 45 YEARS S O.LATE SANKARAN ELAYATH KESAMANGALATH ILLOM EROOR DESOM NADAMA VILLAGE THRIPUNITHURA 682 306 BY ADV PAUL K.VARGHESE AGED 38 YEARS D O.SURYANARAYANAN MULLAPPALLY ILLOM PARAPPUKARA VILLAGE MUKUNDAPURAM TALUK THRISSUR DISTRICT 680 BY ADV C.R.REGHUNATHAN THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2021 THE COURT ON 22.12.2021 DELIVERED THE FOLLOWING: M.F.ANo.1521 A.MUHAMED MUSTAQUE & C.R SOPHY THOMAS JJ M.F.ANo.1521 Dated this the 22nd day of December 2021 JUDGMENT Sophy Thomas J This appeal has been preferred by the respondent in O.P No.1139 of 2017 challenging the proceedings of the Additional District Judge VI Ernakulam dated 22.11.2021 2. O.P No.1139 of 2017 was filed by Smt.Sandhya mother of minor girl Nivedya against the respondent who is the father of the minor and husband of the petitioner. Due to strained marital relationship the petitioner and respondent were living separately and the minor child was staying with her mother. Plaint schedule property was owned by the maternal grandmother of the minor child and it was settled in her favour as per settlement deed No.1766 2012 of SRO Tripunithura. The petitioner wife filed that O.P for declaring her as the guardian of the person and property of the minor Nivedya 3. The respondent husband challenged the jurisdiction of the Family Court in entertaining that petition. He contended that the M.F.ANo.1521 District Court is not having jurisdiction as the entire right of the District Court by virtue of the Guardian & Wards Act has been taken over by the Family Court as per Section 7explanationNo.11317 before the Additional District Court VI Ernakulam for appointing her as the guardian of the person M.F.ANo.1521 and property of the minor child. According to the appellant Section 7(1) explanationof the Family Courts Act 1984 takes away the jurisdiction of the District Court and so the O.P is not maintainable before that court. Moreover he has filed OP No.931 of 2019 before the Family Court Muvattupuzha for getting custody of the minor child and it is still pending. 8. Section 7 of the Family Courts Act 1984 lays down that a family Court shall have and exercise all 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 which inter alia includes according to clause a suit or proceeding in relation to the guardianship of the person or the custody of or access to any minor. Section 8 of the Family Courts Act specifically says that where a family Court has been established for any area no District Court or any subordinate civil Court referred to shall in relation to such area have or exercise any jurisdiction in respect of such suits or proceedings referred to in the Explanation which includes clause g). No.1521 custody of or access to any minor the jurisdiction of the District Court is taken away by the Family Courts Act as per Section 7(1 explanation of the Family Courts Act 1984. But when the question involved relates to appointment of guardian in respect of the property of minor the Family Court has no jurisdiction as that dispute is not coming under explanationto Section 7(1). 10. In Devi Lal Bhagat vs. Rekha Bhagat reported in 2008KLT SN 14the Jharkhand High Court held that on a bare reading of Section 7(1) explanationof the Family Courts Act 1984 and Section 9 of the Guardian & Wards Act 1890 it is manifestly clear that the suits and proceedings including the suit or proceeding where any question of guardianship of the person of any minor or his custody or access to him arises whether governed by any personal law or the provisions to the Guardians and Wards Act would be cognizable only by the Family Court if the mater arises within the area over which the jurisdiction is exercisable by the Family Court. The Family Court has no jurisdiction if the question involved relates to appointment of guardian in respect of the property of a minor whether under personal law or any other law for the time being in force. However in such suits or proceedings where question of appointment of a guardian for both purposes namely person and property of a minor M.F.ANo.1521 is involved the Family Court would have no jurisdiction as Clause g) of the Act does not include proceeding in relation to property of a minor . 11. A Single Bench of this Court had occasion to consider a similar issue in Anitha Abraham vs. Jacob Oommen reported in 2003KLT 417 in which this Court found that the Family Court has no jurisdiction to entertain an application to appoint a person as guardian of the property of the minor. The judgments in Susila Naik vs. Judge Family Court Rourkelaand in Kamal V.M Allaudin vs. Raja Shaikh explanationof the Family Courts Act and it is pending consideration of that court. But in O.PNo.1521 the property of the minor no doubt the jurisdictional District Court has to entertain that petition. 13. Section 7 of the Guardian & Wards Act 1980 empowers the jurisdictional District Court to appoint a guardian of the person or property or both of a minor or to declare a person to be such a guardian if the court is satisfied that it is for the welfare of the minor. Section 8 of the Guardian & Wards Act sets out the class of persons on whose application alone the court can exercise the power vested in it by Section 7. The court is exercising parens patriae jurisdiction to ensure the welfare and well being of the minor. 14. Now let us see whether the District Court can entertain a suit or proceeding in relation to the guardianship of the person or the custody of or access to any minor when the jurisdiction of the District Court is taken away by the Family Court as per Section 7(1) explanationof the Family Courts Act. The Family Courts are set up for the settlement of family disputes to exclusively provide within the jurisdiction of the Family Courts the matters relating to matrimonial relief including nullity of marriage judicial separation divorce restitution of conjugal rights or declaration as to the validity of marriage or as to the matrimonial status of any person the property of the spouses or of either of M.F.ANo.1521 them declaration as to the legitimacy of any person guardianship of a person or the custody of any minor maintenance etc. etc. as seen from the statement of objects and reasons in the bill presented for the enactment of the Family Courts Act. The nature of suits and proceedings coming within the jurisdictional competence of a Family Court is enumerated in Section 7 of the Family Courts Act. When parties to a marriage or an erstwhile marriage seek guardianship of the person or the custody of or access to their minor children it is exclusively a suit or proceeding coming under explanationto Section 7(1) of the Family Courts Act and then the jurisdiction of a District Court or Subordinate Civil Court is taken away as per Section 8 of the Family Courts Act which “8. Exclusion of jurisdiction and pending proceedings. Where a Family Court has been established for any area no district court or any subordinate Civil Court referred to in sub sectionof section 7 shall in relation to such area have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub section no magistrate shall in relation to such area have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure 1973No.1521 every suit or proceeding of the nature referred to in the Explanation to sub section of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure 1973which is pending immediately before the establishment of such Family Court before any District Court or subordinate Court referred to in that sub section or as the case may be before any Magistrate under the said Code and ii) which would have been required to be instituted or taken before or by such Family Court if before the date on which such suit or proceeding was instituted or taken this Act had come into force and such Family Court had been established shall stand transferred to such Family Court on the date on which it is established” 15. In the case in hand the mother of the minor child approached the District Court to appoint her as the guardian of the person and property of the minor daughter Nivedya. The relief for appointing her as the guardian of the person of the minor is exclusively coming under explanation to Section 7(1) of the Family Courts Act and so the jurisdiction of the District Court with respect to that relief is taken away by the jurisdictional Family Court. The respondent father has already filed a petition before the Family Court for getting custody of the minor daughter. If the District Court also is proceeding for appointment of guardian of the M.F.ANo.1521 person of the minor it may result in conflicting decisions. So as far as the dispute between parties to an erstwhile marriage regarding guardianship of the person or the custody of or access to their minor child the jurisdiction of the District Court is taken away by the Family Court. The fact that a court cannot appoint a guardian of the person is no bar for appointing a guardian of the property. Since the question regarding guardianship of the person of the minor between the parents of the minor is to be decided by a Family Court the District Court cannot decide on that issue especially when the proceedings initiated by the appellant for getting guardianship and custody of the minor child is pending consideration before a Family Court. In case of overlapping jurisdiction it may result in contradictory orders which may affect the welfare and well being of the child which is of paramount consideration. In suits or proceedings of the nature coming under explanation to Section 7(1) the Family Court alone will get jurisdiction and the jurisdiction of the District Court is ousted going by Section 8 of the Family Courts Act. 16. As far as the impugned proceedings of the District Court dated 22.11.2021 is concerned with respect to the jurisdiction to entertain the petition for appointing guardian for the property of the minor there is no illegality or impropriety which warrants our M.F.ANo.1521 interference. But with respect to the appointment of guardian of the person of the minor the District Court has no jurisdiction as it is a dispute squarely coming under explanationto Section 7(1 of the Family Courts Act. So to that extent the proceedings of the District Court is liable to be set aside. The District Court can proceed with the O.P for appointing guardian for the property of the minor and not for the person of the minor. This appeal is allowed in part to that extent. The District Court is directed to dispose the case as expeditiously as possible. The parties shall suffer their respective costs. A.MUHAMED MUSTAQUE

Summary: There is a distinction between jurisdiction of district courts and family courts when it comes to appointment of a guardian for the minor’s property or the minor. Only the Family Court has the authority to appoint a guardian for the minor, the district courts have no authority to do so but they can appoint a guardian for minor’s property. This distinction has been highlighted by Justice A. Mohamed Mustaque and Justice Sophy Thomas in the case of K.S. NARAYANA ELAYATHU V. SANDHYA [MFA NO. 150 OF 2021]. Facts of the case are the mother and father of the minor were living separately as a result of a strained marital relationship while the minor was staying with mother. Sandhya filed an application under Guardian and Wards Act that declared her as the guardian of the person and property of the minor Nivedya which was challenged by the respondent husband as he contended that the district court has no jurisdiction to entertain the petition because this power has been taken by the Family court as per section 7 of family Courts Act. Here the District court stated that when it is the property that is also involved then in such cases the power to adjudicate upon the matter lies with the District Court and this was the order that had been challenged. The question of law settled in the present case was whether the district court has the authority to entertain a petition for appointment of a guardian for the property of the minor and the minor? Here the court drawing comparisons and elaborations upon Family Courts Act section 7(1) explanation (g) said that the authority of the district court in matters related to guardianship, custody the jurisdiction has been given to the Family Court but the High Court highlighted that property is not one of the subjects given under section 7 of Family Courts Act and hence the jurisdiction of settling disputes regarding property related matters of a minor cannot be taken away by the family courts and it shall vest with the district court. The matters regarding guardianship of the minors have been dealt under Family Courts Act section 7 explanation (g) hence their jurisdiction has been taken away by section 8 of the act. District court often overstep their jurisdiction in deciding the matters however we must keep it in mind the object for establishment of family court or any other tribunal. In order to deal with family related issues a distinction has to be made based on the nature of the family dispute, if the dispute is of such nature that it requires the better interest of the family, then the jurisdiction has to be given to the family court and if the family dispute is more of civil nature, then the matters can be adjudicated upon by the civil court and this distinction is not a blurry line but it has been highlighted in the section 7 of the Family Courts Act.  Interest of the well being of the family and long-term stability are subject matters of prime importance and these issues have to be handled in a diplomatic manner because of which we have family courts. Vesting such powers to district courts not only defeats the purpose of establishing the family courts but is also detrimental to the family and society a whole.