Delhi High Court
Ed @ Ea vs Aka on 15 November, 2017
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 197/2017, C.M. No. 41048/2017, C.M. No.
41049/2017 and C.M. No. 41050/2017
ED @ EA ..... Appellant
Through: Mr. Arvind Singh, Advocate along with Mr.
S.K. Gautam, Mr. Vipin Raghav and Mr.
Anuj Kumar, Advocates.
versus
AKA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 15.11.2017
SIDDHARTH MRIDUL, J. (ORAL)
1. The present appeal under Section 19 of the Family Courts Act assails
the order dated 19.08.2017 rendered by the Principal Judge, Family Court,
Rohini, Delhi in case G.P No. 20/17 whereby the petition under Section 6(a)
of the Hindu Minority and Guardianship Act, 1956 read with Sections 12
and 25 of the Guardians and Wards Act, 1890, for grant of permanent
custody of minor son namely T.A. of the parties, was ordered to be returned
to the appellant, the petitioner therein, after retaining the photocopies thereof
on the record.
2. It is admitted by the appellant that at least since 18.05.2016, the minor
son, who is about 7 years old is in the custody of the respondent/father and
has been residing at 8A/36, W.E.A, Karol Bagh, New Delhi.
3. Section 9 of the Guardians and Wards Act, 1890 provides for the
competent Court having jurisdiction to entertain an application of the nature
instituted by the appellant.
It reads as under:-
"9. Court having jurisdiction to entertain
application.--
(1) 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.
(2) If the application is with respect to the
guardianship of the property of the minor, it may be
made either to the District Court having jurisdiction in
the place where the minor ordinarily resides or to a
District Court having jurisdiction in a place where he
has property.
(3) If an application with respect to the guardianship
of the property of a minor is made to a District Court
other than that having jurisdiction in the place where
the minor ordinarily resides, the Court may return the
application if in its opinion the application would be
disposed of more justly or conveniently by any other
District Court having jurisdiction."
4. A plain reading of the above provision would clearly reflect that it
postulates that an application in respect of guardianship of the person of
the minor is mandated to be filed where the minor ordinarily resides.
5. Although, learned counsel appearing on behalf of the appellant has
invited our attention to the decisions in Ramji Lal Yadav vs. Dalip K.
Yadav, 76 (1998) DLT 526 and Ruchi Majoo vs. Sanjeev Majoo in Civil
Appeal No. 4435/2011 arising out of SLP (C) No. 9220 of 2010 in
relation to the ambit of the expression "ordinarily resides", we find that
the same are distinguishable on the facts of the instant case.
6. Further, the Family Courts Act, 1894, which is a special Act
postulates that a Family Court shall 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
nature specified in the said provision.
7. The relevant provision of the said Section 7 is as follows:-
"7. Jurisdiction- (1) Subject to the other provisions
of this Act, a Family Court shall-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) xxx xxx xxx
(f) xxx xxx xxx
(g) a suit or proceeding in relation to
the guardianship of the person or
the custody of, or access to, any
minor."
8. A bare reading of the above provision clearly specifies that where
the Family Court has been established for any area, no District Court or
any Subordinate Civil Court shall in relation to such area have or exercise
any jurisdiction in respect of any suit or proceeding referred to in the
explanation which includes Clause (g) extracted above.
9. In view of the foregoing discussion, we are in agreement with the
conclusion arrived at by the learned Trial Court as observed in paragraphs
6,7,8 and 9 of the impugned order dated 19.08.2017 which read as
follows:-
" 6. Section 9 of the Guardians & Wards Act, 1890 provides
for Courts having jurisdiction to entertain application.
It is reproduced and reads as under:-
9. Courts having jurisdiction to entertain application-
(1) 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.
(2) If the application is with respect to the guardianship
of the property of of the minor, it may be made either to
the District Court having jurisdiction in the place where the
minor ordinarily resides, or to a District Court having
jurisdiction in a place here he has property.
(3) If the application is with respect to the guardianship
of the property of the minor is made to a District Court
other than that having jurisdiction in the place where the
minor ordinarily resides, the court may return the
application if in its opinion the application would be
disposed of more justly or conveniently by any other District
Court having jurisdiction.
Section 9 (1) of the Gaurdians & Wards Act, 1890
deals with the jurisdiction of the court to entertain
application. It makes it clear that an application in respect
of the guardianship of the person of a minor requires to be
filed, where the minor ordinarily resides. Jurisdiction of a
Court is determined by law not by consideration of
expediency or convenience or choice of the parties who
invoke jurisdiction of such court.
The Family Courts Act 1984 lays down, in Section 7
of the Act, that a Family Court shall 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, which, inter alia, includes,
according to cl. (g), a suit or proceeding relating to the
guardianship of the person or the custody of or access to,
any minor. Section 8 of the Family Courts Act, specifically
lays down 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 any suits or proceeding
referred to in the Explanation which include cl. (g).
The Hindu Minority and Guardianship Act 1956 as
also the Guardians and Wards 1890 are general and
Central Acts. The Family Courts Act 1984, though a
Central Act, is a special Act and thereby will have a
precedence over other Acts. Family Courts are established
with a view to promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and family
affairs and for matters concerned therewith.
As the Family Courts Act 1984, excludes the
jurisdiction of the District Courts in respect of
proceedings relating to the guardianship of the person
or custody of, or access to, any minor the forum for
application would be the Family Court established for
the area where the minor resides.
7. On careful perusal and analysis of the entire
material on record it is found that it has been asserted in
the petition itself by the Petitioner that the minor child
namely T.A. is in the custody of the Respondent since the
date of separation i.e.21.03.2016 and the said child is
presently residing with the Respondent at 8A/36, W.E.A.
Karol Bagh, New Delhi.
8. In the circumstances, the minor chid is found to be
not ordinarily residing in the territorial jurisdiction of this
Court. Moreover the Petitioner has failed to show that this
court has territorial jurisdiction u/s 9 (1) of the Guardians
and Wards Act, 1890 to try this petition.
9. In view of above and in the circumstances, this Court
under Section 9 (1) of the Guardians and Wards Act, 1890
has no territorial jurisdiction to entertain the present
petition. Therefore the present petition is accordingly
ordered to be returned to the petitioner after retaining the
photocopies thereof on the record."
10. The appeal is therefore devoid of merit and is accordingly
dismissed along with pending applications.
11. It is however directed that the record of G.P. petition no. 20/11
titled as Smt. ED @ EA vs Sh. AKA, be transmitted to the Family Court
of competent jurisdiction forthwith for further proceedings in accordance
with law.
12. Copy of this order be sent to both concerned Family Court
forthwith.
SIDDHARTH MRIDUL, J
DEEPA SHARMA, J
NOVEMBER 15, 2017
ss
