Kerala High Court
Vinod Krishnan vs Missionaries Of Charity on 3 November, 1997
Equivalent citations: I(1998)DMC266, 1998 A I H C 390, (1997) 2 KER LT 863, (1998) 1 MARRILJ 333, (1998) 1 DMC 266, (1998) 1 HINDULR 37, (1997) 2 KER LJ 693, (1998) 1 RECCIVR 551, (1998) 2 CIVLJ 333
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT V.V. Kamat, J.
1. The petitioner by O.P. 150/97 approached the Family Court, Ernakulam with a prayer that he may be granted permission to adopt the minor child Divya under Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956.
2. Relevant facts pleaded in support of the above prayer would show that the petitioner Mr. Vinod Krishnan was aged 34 years and was residing at 'Kavitha'. Menathumukku Olai, Thevalli P.O., Kollam District. He is married to Mrs. Lekha V. Krishnan, aged 29 years. It is then averred that they are Hindu Nairs and . therefore, governed by the provisions of the Hindu Adoptions and Maintenance Act, 1956. By the petition they expressed a desire of taking the child Divya in adoption.
3. Respondents to this petition are Missionaries of Charity represented by its Rev. Sister Superior in the proceedings. It is then averred that the minor Divya born on 7.12.1994 was then aged 2 years who was abandoned and relinquished and in possession of the respondent-Missionary Institution.
4. Both the petitioner and his wife earlier presented O.P. No. 178/96 under the Guardians and Wards Act before the Family Court for their appointment as guardian of the minor child Divya. It appears and it is so mentioned that the respondent-Missionary Institution had no objection for the appointment of guardian as stated above in the above circumstances. It is then averred and there is no dispute also that the Family Court in O.P. (G&W) No. 178/96 by the order dated 29.6.1996 appointed the petitioner Mr. Vinod Krishnan as the guardian of the minor child Divya. Certain factors answering the requirements are pleaded in the petition in the context of the ultimate prayer in relation to adoption of the minor child and in pursuance of the earlier order of appointment of guardianship.
5. By the impugned order the Family Court, Ernakulam returned the petition for presentation to the proper Court in accordance with the provisions of the Hindu Adoptions and Maintenance Act, 1956. The Family Court, after referring to the statutory provisions of Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956 has observed that the only Court competent to give this permission would be the 'District Court' in accordance with the provisions of Clause (ii) of the Explanation to Section 9 of the Act. It was submitted before the learned Judge placing reliance on Section 7 of the Family Courts Act, 1984 that such a petition could be considered under Section 7(1) Clause (g) to the explanation thereto.
6. Analysing the said statutory provision of Section 7, the Family Court observed that the jurisdiction of the Family Court is limited to specific categories of cases referred to in the explanation thereto and if, in the context of relevance, Clause (g) is taken into consideration, the Family Court could legally have jurisdiction in respect of suits and proceedings only in relation to the guardianship of the person or custody of the person or access to any minor. The controversy in regard to the question relating to the contents of the petition before the Family Court actually rivets around the understanding of the statutory provision of Clause (g) to Explanation of Section 7(1) of the Family Courts Act, 1984.
7. The Family Court has considered the statutory language of the said Clause (g) as concerned and confined with the question of guardianship and custody and also access to the minor. It is held that the prayer of the petition could not be understood as connected either with guardianship or with custody or with "access to" the minor in any manner. It is held mat the petition as presented in the context of the prayer cannot be treated as relating to "access to" a minor because the prayer for adoption cannot be considered to having any connection with access, custody or even guardianship. The Family Court has taken the view that the petition would not be maintainable before the Family Court and if it is not maintainable, then it would have to be referred for presentation to the proper Court. In the process of reasoning the Family Court has placed reliance on the decision of the Karnataka High Court, AIR 1991 Karnataka 6, Canara Bank Relief and Welfare Society and Ors.
8. Initially there was a question of maintainability of this appeal to this Court against the order impugned. By the order based on 20.8.1997 this Court treated that the remedy against such an order would be an appeal and accordingly the proceedings are before us as M.F.A. against the impugned order.
9. Jurisdiction of a Court is not a matter of inference but it has to be found froth the language in the context. It is not possible to think in terms of any stretch to the language in any manner. Howsoever the learned Counsel attempted to be persuasive on the count, it must be established clearly and unequivocally that there is jurisdiction with the Court to entertain the petition as it is presented. We make it clear more because the learned Counsel attempted in his persuasive and strenuous manner to urge that the provisions of Clause (g) to Explanation to Section 7(1) of the Family Courts Act, 1984 would need to be understood in such a way that the proceedings and suits referred to in Section 7(1) of the Act would have to be understood to be in relation to guardianship of the person or the custody or access to any minor to include cases of adoption also by necessary and inevitable implication. Learned Counsel submitted in particular that the words, 'access to' would have to be understood to include situation of adoption also.
10. Learned Counsel supported his submissions by urging the prevalent situation in relation to adoptions in foreign countries be initiated on the basis of permission relating to guardianship of the minor. In fact the learned Counsel submitted that as a matter of established course in regard to inter-country adoptions, reference to Form No. 3 in petitions of similar character in the matter of Guardians and Wards Act, 1890 in the matter of appointment of guardian the form refers to the undertaking to adopt the said minor within a period of two years, after recognising the situation of guardianship, to his adopted home according to the laws applicable there. The learned Counsel submitted that the guardianship and custody will have to be understood to be situated in a similar situation as that of adoption. It would be more than inconvenient and incongruent, the learned Counsel submitted to consider, within the jurisdiction of we Family Court, the situation in a truncated form. The learned Counsel submitted that proceedings in relation to guardianship, the proceedings in relation to me matters of custody of minors and the proceedings relating to the facilities of access to any minor cannot be understood on a different plain of relationship in the matter of dealing with the situation of adoption which is virtually a consequence thereof. The learned Counsel submitted, it is difficult to accept that 'access to' with its grammatical variations would have to be understood to be synonimous with a situation of adoption. The learned Counsel also went to the extent of submitting that me Family Courts Act, 1984 is a social welfare legislation and should be considered meaningfully in the context of convenience more than the grammatical meaning of the word and its extent and limits.
11. Giving our anxious consideration to the meticulous submissions we find ourselves unable to be in line with me submissions of the learned Counsel; As stated at the outset it is not possible to think assumption or usurpation of jurisdiction by a Court with a view to treat the Family Court Act, 1984 as a social welfare legislation. The Act enacts a Forum with its jurisdiction and powers specifying its scope to deal with matters precisely enumerated in Section 7 of the Act. Precisely enumerated because apart from the language of Section 7(1), Clause (g) to its Explanation, Section 7(2) of the specially enacts that subject to the other provisions a Family Court shall also have an exercise-(b) such other jurisdiction as may be confirmed on it by any other enactment. Section 7(2)(a) confers jurisdiction with regard to provisions of Chapter IX of the Code of Criminal Procedure, 1973, and it is thereafter specifically enacted that other jurisdiction is to be conferred by any other enactment. In addition thereto the situation is also crystal clear that the Family Courts Act is enacted by Act No. 66 of 1984 and established the Family Courts, to promote conciliation, to secure speedy settlement of disputes relating to marriage and family affairs and matters connected therewith. In other words the jurisdiction will have to be understood to be connected with the clause specified in the Explanation and it would not be possible to read there into something by way of a desirous extension in regard thereto. The learned Counsel wanted a resort to the dictionary to understand what is the dictionary meaning of 'access to'. It is necessary to state that the term 'access to' cannot be considered to be having any such connection of similarity or parity with a situation of adoption. Adoption, it is more than elementary, changes the status of the person to be adopted. It cannot be understood to be connected with any thing like guardianship, custody and access. It is a situation completely distinct and unconnected and therefore, could not be understood to be having any kind of association with the situations provided by the language of the section. Apart therefrom there is an inbuilt provision in Section 7 itself in the nature of Section 7(2)(b) making it clear mat such other jurisdiction will have to be conferred by any other enactment. It is plain that it cannot be understood otherwise than that.
12. At the other end the statutory provisions of the Hindu Adoptions and Maintenance Act, 1956, particularly Section 9 thereof dealing with persons capable of giving any adoption make the position crystal clear. In fact the petition as presented before the Family Court which has resulted into me impugned order is one under Section 9 of the Act providing statutorily mat the guardian of the child may give the child in adoption with the previous permission of the Court to any person including the guardian himself. The provision of the said section itself dispells the situation of doubt when "Court" is specified in Clause (ii) to Explanation to the said Section meaning a "District Court within me local limits of whose jurisdiction the child to be adopted ordinarily resides".
13. The learned Counsel submitted that even the Presiding Officer of the Family Court under Section 7(1) of the Act gets power and all the jurisdiction exercisable by any District Court, in respect of suits and proceedings of the nature referred to in the Explanation. The learned Counsel submitted that the Family Court having all the powers of the District Court should have no difficulty in exercising power under the Hindu Adoptions and Maintenance Act, 1956. The submission need not take time to be answered. The statutory provision of Section 7(1)(a) clarifying the power to exercise all the jurisdiction by any District Court ipso facto cannot be understood to confer jurisdiction which is specifically conferred on the District Court by the statutory provision to Section 9 of the Act.
14. The Family Court cannot be considered to have jurisdiction by implication or inference.
15. In fact the learned Judge has referred to the decision of the Karnataka High Court (supra) in the context of the observation suggesting that it is open to the Parliament to invest the Family Courts established under the Family Courts Act with the jurisdiction to deal with the matter covered by Section 9(4) of the Hindu Adoptions and Maintenance Act. We have carefully considered the said decision and we have our respect to the view expressed by the Karnataka High Court when it observed that none of the matters categorised in Clauses (a) to (g) of the Explanation to Sub-section (1) of Section 7 of the Actor in Clauses (a) and (b) of Subsection (2) thereof could be understood to be relating to the grant of previous permission to give a child in adoption by its guardian envisaged under Section 9(4) of tine Hindu Adoptions and Maintenance Act, 1956. The observations of the Karnataka High Court (supra) have also led to the view taken by the Family Court in the impugned judgment. It would also be, not out of place, necessary to mention that the Karnataka High Court, AIR 1991 Karnataka 10, In the matter of Ashraya and Ors.etc.etc., had an occasion to consider the situation in the context of proceedings for appointment of guardian of the child, in connection with the ultimate object of the petitioners to take the child out of India and to adopt according to law leading to the situation that Family Court alone would have jurisdiction to deal with the matter. It is obvious that in the matter of inter-country adoptions the situation would not present differently. The Family Court gets legal concern with the appointment of a guardian of a child in the process of the averment that the guardian desired to adopt the child in a foreign country obviously in a different Court having the territorial jurisdiction.
16. The learned Counsel brought to our notice the decision of a Single Judge of the Bombay High Court, AIR 1990 Bombay 299, Kamal V.M. Allaudin v. Raja Shaikh, relating to the proceedings dealing with the question of transfer of the proceedings to the Family Court after the enactment of the Family Courts Act, 1984. In regard to a question relating to the matter of adoption reliance was placed on Rule 35 of the Maharashtra Family Court Rules, 1987. Rule 35 of the Maharashtra Family Court Rules provides all applications for guardianship and adoption other than applications over which the High Court has jurisdiction required to be filed before the Family Courts. Learned Single Judge of the Bombay High Court has placed reliance on the said provision in the context of Section 7(1) Clause (g) of the Explanation. We are afraid it is not possible to bodily shift the statutory provision of Rule 35 of the Maharashtra Family Court Rules in the context, not to speak of their application in the present proceedings. Apart therefrom the question is as to whether inspite of the statutory provision of Section 7(2) providing inclusion of jurisdiction only by enactments, such introduction by rule is a situation which should be atlas to be open to a debate in the context. In our judgment the learned Judges could not be said to be in error in any way in passing the impugned order returning the proceedings for presentation to the proper Court in accordance with the provisions of the Hindu Adoptions and Maintenance Act, 1956.
For all the above reasons appeal stands dismissed. As a result the impugned order dated 17.3.1997 of the Family Court, Ernakulam in O.P. 150/97 stands confirmed. Order accordingly.