'Redefine Jurisdiction Of Family Courts Under Guardianship And Wards Act To Protect Interests Of Children Of Transnational Marriages': Madras High Court

The Madras High Court on Tuesday observed that the jurisdiction of Family Courts as stipulated under the Guardians and Wards Act, 1890 must be redefined so as to adequately protect the rights and interests of children whose parents have entered into transnational marriages. 

Opining on the need to enact a revised legislation, Justice J. Nisha Banu observed,

"Guardians and Wards Act, 1890, was of the year 1890 where inter-country marriages or foreign marriages were not even in contemplation. As on date, those kind of marriages are innumerable happening each and every day. The law should take a lien matching the changes happening in the society. If the law is lacking behind, the rights of the parties will also lack behind. Therefore, it is the time for the Legislature to take note of the above types of marriages and taking into account the interest of the children, may redefine the jurisdiction of the Family Court, so that neither the children nor the person interested in the welfare of the children shall suffer"

The Court was adjudicating upon a plea moved by the mother of a minor child aged 11 years under Sections 7, 9 and 17 of the Guardians and Wards Act seeking the leave of the Court to declare her as the 'natural guardian' of her minor son and to hand over his custody to the petitioner. Such a petition had been dismissed by the concerned Family Court i.e. District Judge, Kanyakumari District at Nagercoil on the ground that it lacks territorial jurisdiction to entertain the petition. As a result, the instant revision petition had been filed.

The petitioner had submitted that the ordinary residence of the minor child is in Kanyakumari District itself as the minor child had been residing in India till 2014. During the year 2014, the petitioner and her husband had left India with their two children.

Section 9 of the Guardians and Wards Act stipulates the grounds on the basis of which District Courts can exercise jurisdiction to entertain applications with respect to the guardianship of minors. The provision states that Courts must first take into account whether the concerned minor 'ordinarily resides' within its jurisdiction before entertaining any application for guardianship.

The Court observed that the phrase 'ordinarily resides' includes mere temporary residence as well even though it will be of such temporary residence as may be considerable. Reliance was placed on the Punjab and Haryana High Court decision in Sunaina Chowdhary v. Vikas Chowdhary wherein the Court had held that the Court in the native country having the 'closest concern' and 'most intimate contact with the issues raised' must be allowed to exercise jurisdiction under Section 9 of the Act.

Accordingly, the Court directed the Family Court, Kanyakumari District to hear the instant case on merits subject to the proof that the child was ordinarily residing as contemplated in the Section 9 application.

"If the issue relating to jurisdiction is doubtful for the Family Court or if it is raised by the respondent, it will be open to the Court to consider the same in the light of evidence offered during enquiry", the Court clarified.

The petitioner has been represented by Advocate K. Vamanan. 

Case Title: J.Beula Sima Saral v. W.Issac Robinson

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