Orissa High Court
Susila Naik vs Judge, Family Court, Rourkela And Anr. on 7 February, 1997
Equivalent citations: AIR1998ORI61, II(1997)DMC235, AIR 1998 ORISSA 61, (1997) 83 CUT LT 811, (1997) 2 DMC 235, (1998) 2 MARRILJ 418, (1998) 1 CIVLJ 121, (1997) 2 ORISSA LR 66
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT 1. The present civil appeal under Section 10 of the Family courts Act at the instance of the appellant Susila Naik challenges the order dated 13-3-1996 made by the learned Judge, Family Court, Rourkela in Guardianship Case No. 51 of 1992. 2. By the impugned order guardianship certificate has been directed to be issued appointing opposite party No. 5 Binapani Patel as guardian of the minor subject to execution of a bond without surety for Rs. 50,000.00 within a month of the order. The earlier order of the Family Court dated 15-11-1993 appointing the present appellant Susila Naik as the legal guardian of the minor Srikanta Naik was cancelled. 3. It transpires from the impugned order that during the hearing before the Court below the present appellant Susila Naik examined herself as P.W. 1 present respondent No. 2 Binapani Patel examined herself as O.P.W. I and her husband as O.P.W. 2 Susila Naik stated that she was appointed as the guardian in respect of the property of minor Srikanta Naik and as per the condition she was to cultivate the landed properties of the minor and render accounts every year. 4. The facts of the case arc not disputed but a point of law has been brought to the surface, inasmuch as whether a Judge, Family Court has jurisdiction to appoint a guardian as to the minor's person and appoint a manager as to the minor's properties. 5. It is placed on record that it is a right between the mother and grandmother of the minor. The mother has been appointed as guardian of the person of the minor and the grandmother has been appointed as the manager of the property of the minor. Our attention has been drawn to Chapter III of the Family Courts Act. 1984 (Act No. 66 of 1984) regarding jurisdiction of a Family Court, where Section 7 clearly lays down that subject to the other provisions of the 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 the time being in force in respect of suits and proceedings of the nature referred to in the Explanations; and (b) be deemed, for the purposes 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 the Family Court extends." There are explanations as (a) to (g) to Section 7(1) and Explanation (b) indicates: "a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor." This is an ancillay proceeding before the Judge, Family Court and the jurisdiction has been specifically indicated therein. A dispute is that in view of the powers so conferred upon the Judge, Family Court under Section 7(1) in its Explanation (g). the Judge, Family Court has the power to appoint a guardian and/or manager in respect of the property of the minor. Statute is very clear. The property of minor has not only been expressly excluded but the language does not spell out anything to hold that the Judge. Family Court can exercise jurisdiction regarding the property of minor nor is there any scope to appoint any guardian or manager in respect of the minor's property. 6. Our attention has been drawn to a judgment of the Bombay High Court reported in AIR 1990 Bombay 299 (Kamal V. M. Allaudin v. Raja Shaikh). In the said decision the learned single Judge of Bombay High Court considering the scope of Sections 2(e), 7, 8 and 20 of the Family Courts Act (No. 66 of 1984) vis-a-vis Clause 17 of the Letters Patent (Bombay) and the Maharashtra Family Court Rules, 1987 held that the Family Court would have no jurisdiction if the question involved relates to appointment of a guardian in respect of property of a minor whether under personal law or as a statutory or testamentary guardian. 7. Our attention has also been drawn to a Division Bench decision reported in AIR 1991 Karnataka 10 (in re : Ashraya) where it has been found that a proceeding under the Guardians and Wards Act (8 of 1890) seeking appointment of guardian respecting concerned destitute child (minor) and grant of permission for removing such child out of the territorial jurisdiction of the concerned Court for being taken to a foreign country, an ancillary matter to the appointment of guardian, is apparently a proceeding relating to guardianship of person of minor and the custody of or access to such minor by guardian categorised in Clause (g) of the explanation to Sub-section (1) of Section 7 of the Act and therefore the Family Court has jurisdiction in such matter. 8. Reference has also been made to the decision reported in 1991 All LJ 98 ((sic)mjeet Chabra v. Savita Chabra) wherein it has been discussed that guardianship in respect of property of a minor is excluded from the jurisdiction of Family Court and cannot be cognizable by that Court. The express omission of the words "guardianship of minor's property 1 in Section 7(1)(g) clearly shows that the intention of the Legislature was to exclude disputes relating to minor's property guardianship outside the scope and jurisdiction of Family Court. 9. We have perused the Statement of Objects and Reasons at the time of introduction of the Family Courts Act, 1984 (Act No. 56 of 1984). It appears therefrom that several associations of women, other organisations and individuals had urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on concilation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th report (1974) had also 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 at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters. 10. The Statement of Objects and Reasons indicates clearly that the scope regarding guardianship and custody of a minor is specifically included. To deal with the question of property of a minor is beyond the scope of the Act and no such power has been conferred vis-a-vis there is no jurisdiction of the Family Court to exercise the same. 11. Both Mr. Nanda for the appellant and Mr. B.P. Ray for the respondent No. 2 in their usual manner have properly assisted the Court to appreciate the scope of Section 7(1)(g) of the Family Courts Act and the problems arising in the matter by drawing out attention to the observations made by the High Courts of Allahabad, Karnataka and Bombay as indicated above. We are convinced that there is no scope for the Family Judge to appoint a guardian or manager in respect of the property of minor. 12. Accordingly, we modify the impugned judgment holding inter alia that the mother will remain guardian of the minor as person and the order as to appointment of any other guardian or manager in respect of the property of minor is set aside. It is open to be decided by any other appropriate forum as prescribed under law. 13. The appeal is disposed of with the modification of the impugned judgment as above. No order as to costs. Dipak Misra, J.
14. I agree.