Proceedings For Guardianship, Custody Of Minor Lie Only Before Family Court: Karnataka High Court

The Karnataka High Court has made it clear that a proceeding in relation to the guardianship of a person or the custody of or access to any minor has to be filed before Family court and it cannot be filed before a district court or any subordinate civil court.

A single judge bench of Justice H P Sandesh said,

“Section 8 of the Family Courts Act is very clear with regard to exclusion of jurisdiction and pending proceedings where a Family Court has been established for any area. The very proviso of Section 8(a) is very clear that no district court or any subordinate civil court referred to in sub-section (1) of 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.”

The bench made the observation while allowing a revision petition questioning a trial court order rejecting the application filed by them under Order 7 Rule 11 of CPC, praying to dismiss a petition seeking custody of minor under the Guardians and Wards, 1890, for want of jurisdiction.

The petitioners contended that minor children are residing with them and studying in Arehalli and thus, the Family Court there has jurisdiction to entertain the guardianship petition.

However, the respondents contended that the petition is filed before the District Court in view of Section 9 of the Guardians and Wards Act. The provision stipulates that 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.

Findings

The bench referred to Section 8 of the Family Courts Act and said no district court or any subordinate civil court referred to in Section 7(1) shall exercise jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to that sub-section. Clause (g) in the explanation refers to a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

Section 7(2) also states that subject to the other provisions of the Act, a Family Court shall have and exercise- (a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 and such other jurisdiction as may be conferred on it by any other enactment.

Thus, it held “It is not in dispute that the present petition is filed praying the Court for appointment of the guardian in respect of a minor. When the Family Courts Act is very clear with regard to the jurisdiction is concerned under Section 7 and when Section 7(g) is very clear with regard to a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor and when the Family Court is established to deal with all these issues involved between the parties, the Trial Court has not considered the same and only considered Section 9 of the Act and comes to the conclusion that the Court is having the power.”

Further it said “It is clear that the Trial Court committed an error in dismissing the application and ought to have allowed the petition and directed the Court to return the petition to file the same before the Family Court for want of jurisdiction and hence the order requires it to be set aside and revision petition requires to the allowed.”

Allowing the petition the bench set aside the trial court order and allowed the application filed by the petitioners and directed the trial court to return the petition for submitting the same before the Family Court of Hassan District. 

Case Title: Nasim Banu & ANR And Shabas Khan & Others

Case No: CIVIL REVISION PETITION NO.273 OF 2023

Citation: 2023 LiveLaw (Kar) 202

Date of Order: 30-05-2023

Appearance: Advocate Sathisha D J For petitioner.

Advocate Vijaykumar B for respondent.

Click Here To Read/Download Order