Civil Revision Application No.633 of 2002

28th March, 2006

Petitioner Counsel: Mr. D. K. DUBEY

JUDGMENT

JUDGMENT :- Heard Mr. D. K. Dubey, learned counsel for the Applicant. Counsel for the Respondent absent.

2. The civil revision application is directed against the order dated 11-12-2002 passed by the 6th Additional Sessions, Judge, Nagpur, whereby application of the applicant under Order 7 Rule 11 is rejected.

3. Mr. Dubey, learned counsel for the applicant has submitted that the non-applicant (mother) has filed an application for custody of minor children under Section 25 of the Guardian and Wards Act, 1890. The applicant filed an application for rejection of the said application filed by non-applicant under Section 25 of the Guardian & Wards Act, 1980, on the ground that the District Judge does not have jurisdiction to entertain the said application in view of the provisions of Section 7 of the Family Courts Act, 1984.

4. The learned counsel for the applicant has contended that a suit or proceedings in relation to the guardianship of a person or custody of or access to any minor are required to be initiated in the Family Court in view of the provisions of Section 7(1)(g) of the Family Courts Act, 1894 after the said Act came into force and the application under Section 25 of the Guardian & Wards Act, 1890 for custody of minor is of maintainable. It is contended that the Additional Sessions Judge without considering the provisions of Section 7 of the Family Courts Act, rejected the application of the applicant and therefore, the order impugned cannot be sustained-in-law.

5. In the backdrop of the above referred facts, the question which arose for determination in the present revision application is, whether the application filed by the applicant for custody of children under Section 25 of the Guardians & Wards Act, 1890 is maintainable in view of the provisions of Section 7 of the Family Courts Act, 1984 ?

6. At the outset, it will be appropriate to consider the purpose for which the Family Courts Act, 1984, came into existence and the object it has to achieve. The Law Commission in its 59th Report had stressed that in dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts for settlement of dispute before the commencement of the trial. In 1976 the Code of Civil Procedure was also amended to provide for a special provision to be adopted in suits or proceedings relating to matters concerning family, but not much change in the attitude of the Court was noticed. Therefore, the need was felt to establish Family Courts for speedy settlement of family disputes. Accordingly the Family Court Bill was introduced in the Parliament.

The Bill inter alia, seeks to --

(a) ............

(b) ............

(c) ............

(d) exclusively provided with the jurisdiction of the Family Courts the matters relating to --

(i) 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;

(ii) the property of the spouses or of either of them;

(iii) declaration as to the legitimacy of any person;

(iv) guardianship of a person or the Custody of any minor;

(v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure;

(e) make it obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal and rigid rules of procedure shall not apply;

(f) provide for the association of social welfar agencies, counsellors, etc., during conciliation stage and also to secure the service of medical and welfare experts.

(g) provide that the parties to a dispute before a Family Court shall not be entitled, as of right to be represented by legal practitioner. However, the Court may, in the interest of justice, seek assistance of a legal expert as amicus curiae;

(h) simplify the rules of evidence and procedure so as to enable a Family Court to deal effectively with a dispute;

(i) provide for only one right of appeal which shall lie to the High Court.

The bill seeks to achieve the above objects. The Family Court Bill was passed by both the Houses of Parliament and received assent of the President on 14th September, 1984 and came into existence w.e.f. 1984.

Looking to the object to be achieved by the establishment of Family Court, it is evident that the intention of the legislature so far as the issue about guardianship of a person or custody of minor is concerned, jurisdiction in this regard is vested in the Family Court as stipulated in Section 7 of the Family Courts Act, and the relevant provision of Section 7 of the Family Courts Act, 1984, reads thus -

"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 time being in force in respect of the suits and proceedings of the nature referred to in the explanation; and,

(b) be deemed, for the purpose 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 Family Court extends.

Explanation - The suits and proceedings referred to in this sub-section are suits and proceedings of following nature, namely--

(a) ---

(b) ---

(c) ---

(d) ---

(e) ---

(f) ---

(g) a suit or proceedings in relation to the guardianship of the person or the custody of, or access to, any minor."

Plain reading of the above referred provisions of Section 7 of the Family Courts Act clearly demonstrates that the Family Court shall have jurisdiction to decide a suit or proceedings in relation to the guardianship of a person or the custody of, or access to, any minor and shall exercise the jurisdiction exercisable by any District Court or any sub-ordinate Civil Court under any law for time being in force in respect of such suits or proceedings for the area to which the jurisdiction of the Family Court extends. It is, therefore, evident that after the Family Courts Act came into force, the proceedings in relation to the guardianship of a person or custody of, or access to, of a minor are required to be instituted in the Family Court in view of Section 7 of the said Act since it has a jurisdiction to decide these proceedings and also can exercise jurisdiction exercisable by the District Court and therefore, by necessary implication the application filed by the non-applicant under Section 25 of the Gardians & Wards Act, 1890, for custody of minor, in my view, is not maintainable.

7. For the reasons stated herein above, order impugned dated 11-2-2002 is quashed and set aside and consequently the application filed by the non-applicant under Section 25 of the Guardian & Wards Act for custody of minor children is also dismissed as not maintainable. However, the non-applicant is entitled to move the appropriate application for custody of minor before the Family Court under Section 7 of the Family Courts Act, 1984.

Rule made absolute in above term. No order as to cost.

Revision allowed.