Kerala High Court: The Division Bench of A.Muhamed Mustaque and Sophy Thomas held that the District Court cannot entertain petition to appoint guardian of the person of the minor child, however power to appoint guardian of the property of the minor is well within the jurisdiction of the District Court. The Bench clarified, the fact that a court cannot appoint a guardian of the person, is no bar for appointing a guardian of the property.
The original petition was filed by the mother of minor girl Nivedya, against the respondent, who was the father of the minor and husband of the petitioner for declaring her as the guardian of the person and property of the minor. Plaint schedule property was owned by the maternal grandmother of the minor child, and it was settled in her favour as per a settlement deed. Due to strained marital relationship, the couple were living separately and the minor was staying with her mother.
The respondent-husband had challenged the jurisdiction of the Family Court on the ground that the District Court did not has any 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 7 (1) explanation (g) of the Family Courts Act, 1984.
The District Court, after hearing the rival contentions, found that, when custody of the property of a minor is involved, the jurisdiction is with the District Court and so, that court has jurisdiction to entertain that O.P. It was this finding of the District Court which was being challenged by the instant appeal.
The appellant-respondent submitted that prior to their divorce, his mother executed a settlement deed in favour of his minor child, reserving life interest for the appellant-respondent in the property and the house situated therein. Moreover, he had filed a petition before Family Court for getting custody of the minor child and it was still pending.
The Bench observed that 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 in respect of suits and proceedings of the nature referred to in the Explanation which, inter alia, includes, according to clause (g), 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 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). However, considering the above provision, the Bench stated,
“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 explanation (g) to Section 7(1)”.
Hence, the Bench held that since the Family Court has no jurisdiction to entertain a petition for guardianship of the property of the minor, no doubt, the jurisdictional District Court has to entertain that petition. Further, 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. 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 Bench held that the jurisdiction of the District Court is taken away by the Family Court.
Consequently, with regard to the impugned proceedings of the District Court, the Bench held that there was not illegality or impropriety to warrant the Court’s interference and the District Court can proceed with the original petition for appointing guardian for the property of the minor, and not for the person of the minor. [K.S. Narayana Elayathu v. Sandhya, 2021 SCC OnLine Ker 6231, decided on 22-12-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Appellant: Paul K. Varghese, Advocate
For the Respondent: C.R. Reghunathan, Advocate