ORDER I.A. Ansari, J. 1. The petitioner herein, who is maternal grandfather of Bhaswati Mahanto, a minor, had applied to the Court of District Judge, Kamrup, at Guwahati, under Section 10 read with Section 7 of the Guardians and Wards Act, 1890, seeking to be appointed as guardian in respect of the person and property of the said minor. The maintainability of the said application was resisted by the Opposite Party herein, who is father of the said minor, on the ground that, in the face of the provisions of Sections 7 and 8 of the Family Courts Act, 1984, the District Court does not have jurisdiction to entertain such an application, and, hence the application for appointment as guardian of the said minor ought to have been filed in the Family Court, at Guwahati, inasmuch as the Family Court, having being established, has the jurisdiction to decide an application in respect of the person as well as property of a minor, who resides within the territorial limits of the jurisdiction of the Family Court. 2. Having taken note of the objections raised by the opposite party as regards maintainability of the application made to the District Court for appointment of guardianship of person as well as property of the said minor, learned Additional District Judge, No. 1, Kamrup, Guwahati, passed an order, on 12-2-2009, holding that the Family Court, at Guwahati, has the jurisdiction to decide the question of appointment of guardians of a minor and having reached this conclusion, the learned Court below directed the applicant to file application for appointment of guardian of the said minor in the Court of competent jurisdiction. Aggrieved by the decision so taken, the petitioner has come to this Court, with this application, made under Article 227 of the Constitution of India, seeking to get set aside and quashed the impugned order. 3. I have heard Mr. P.K. Deka, learned Counsel for the petitioner, and Mr. A.J. Das, learned Counsel, appearing on behalf of the opposite party Nos. 1 and 2. 4.
3. I have heard Mr. P.K. Deka, learned Counsel for the petitioner, and Mr. A.J. Das, learned Counsel, appearing on behalf of the opposite party Nos. 1 and 2. 4. The limited question, which the present application, has raised is this On establishment of a Family Court, under the Family Court Act, 1984, for a given area, whether a suit or proceeding, for guardianship of person as well as property of a minor, can be made to the District Court, by resorting to the provisions of Guardians and Wards Act, 1890, or whether such an application can be made only to the Family Court, which has been established for exercising jurisdiction in the given area. 5. For the purpose of resolving the controversy, involved in the present case, a careful examination of the provisions of Sections 7 and 8 of the Family Courts Act, 1984, which falls under Chapter III thereof, is necessary. The relevant provisions of Sections 7 and 8 are, therefore, reproduced hereinbelow: 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 the time being in force in respect of suits and proceedings of the nature referred to in the explanation; 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.
Explanation--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-- (a) a suit or proceedings between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceedings for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceedings for a declaration as to the legitimacy of any person; (f) a suit or proceedings for maintenance; (g) a suit or proceedings in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also 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 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment. 8.
8. Explanation of jurisdiction and pending proceedings,--Where a Family Court has been established for any area,-- (a) 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; (b) No magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c) Every suit or proceeding of the nature referred to in the Explanation to Sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),-- (i) which is pending immediately before the establishment of such Family Court before any district Court or subordinate Court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and (ii) which would have been required to be instituted or taken before or any such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established. 6. From a careful reading of the provisions of Sections 7 and 8, it becomes clear that a suit or proceeding cannot be entertained, maintained or decided by any Court other than Family Court, which falls within the area to which the jurisdiction of the Family Court extends, provided that the nature of the proceeding is such, which would fall within the clauses given under the Explanation appended to Section 7. Consequently, if the nature of the application, which has given rise to the present application, is covered by the Explanation to Section 7, such an application could not have been maintained, and was not maintainable, by any Court other than the Family Court at Guwahati. 7.
Consequently, if the nature of the application, which has given rise to the present application, is covered by the Explanation to Section 7, such an application could not have been maintained, and was not maintainable, by any Court other than the Family Court at Guwahati. 7. Bearing the above aspect of law in mind, when I turn to Clause (g) to the Explanation to Section 7, I notice that Clause (g) provides that a suit or proceeding, in relation to the guardianship of the person or the custody of, or access to any minor, shall be amenable to the jurisdiction of the Family Court, in the area to which the jurisdiction of the Family Court extends. 8. As against what Clause (g) to the explanation to Section 7 of the Family Courts Act lays down, a careful reading of the provisions of Sub-section (1) and Sub-section (2) of Section 9 of the Guardians and Wards Act, 1890, shows that any application for guardianship, in respect of not only of the person of the minor, but also of the property of the minor, shall lie to the District Court, having jurisdiction at the place, where the minor or his family resides. For better appreciation, Sub-sections (1) and (2) of Section 9 of the Guardians and Wards Act, 1890, are quoted hereinbelow: (1) 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. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. 9. The expressions, which appear in Sub-sections (1) and (2) of Section 9 of the Guardians and Wards Act, 1890, are 'with respect to the guardianship of the person of the minor' and 'with respect to the guardianship of the property of the minor'. On the contrary, the expressions, appearing in Clause (g), reads, "a suit or proceeding in relation to the guardianship of the person or the custody of, or access to any minor".
On the contrary, the expressions, appearing in Clause (g), reads, "a suit or proceeding in relation to the guardianship of the person or the custody of, or access to any minor". The words, such as, 'relating to' or 'in relation to' are words of comprehensiveness, which might both have a direct significance as well as indirect significance depending on the context. They are not words of restrictive content and ought not be so construed. (See State Wakf Board, Madras v. Abdul Azeez Sahib reported in AIR 1968 Mad 79 ). 10. The expression, 'in relation to the guardianship of the person', would mean any suit or proceeding, which relates to the guardianship of a minor as a person and not merely guardianship of the person of the minor. The guardianship of the person, as a minor, would include both guardianship of the person of a minor as well as guardianship of the property of the minor. The expression, 'in relation to the guardianship of the person', would not necessarily mean guardianship of only the person of a minor and not his property. When the Family Court Act refers to the 'guardianship of the person', it would not be appropriate to add to the word 'person' the words 'of a minor'. If the expression, 'guardianship of the person', is interpreted to mean guardianship of the person only of a minor, it would mean that under Clause (g), guardianship of the minor of a person is different from, and independent of, guardianship of the property of the minor. The word 'person', appearing in Clause (g), must be read to refer to a minor as a person and not necessarily and exclusively the person of a minor, for, the expression 'person of the minor' appears in Sub-section (1) of Section 9 vis-a-vis the expression 'guardianship of the person'. The word 'person', appearing in Clause (g), must be read to refer to (as indicated hereinbefore) a minor as a person and not necessarily to the person of a minor. This apart, the expression, 'in relation to', is as discussed above, an expression of very wide meaning and must be construed to mean all suits or proceedings, which relate to the guardianship of a minor as the person. Logically extended, this would mean guardianship of not only the person of a minor, but also of the property of the minor.
This apart, the expression, 'in relation to', is as discussed above, an expression of very wide meaning and must be construed to mean all suits or proceedings, which relate to the guardianship of a minor as the person. Logically extended, this would mean guardianship of not only the person of a minor, but also of the property of the minor. Viewed thus, it becomes clear that 'a suit or proceeding', 'in relation to the guardianship of the person' would mean a suit or proceeding, which relates to guardianship of a minor, as a person, and would, therefore, include both guardianship of his person as well as his property. 11. The expression, 'in relation to guardianship of the person' cannot, if I may reiterate, be treated to mean guardianship of only the person of a minor. If so construed, as contended by Mr. Deka, the result will be that while an application, seeking guardianship of the person of a minor, would lie to the Family Court, an application, for guardianship of the property of the same minor, would lie to the District Court. The possibility of conflicting directions, emanating from the two Courts, in such a situation, cannot be completely excluded, for, while the Family Court may find a person suitable for appointment as guardian of the person of a minor, the same person may not be found suitable by the District Court for being appointed as the guardian of the property of the minor. The other fallout of such an interpretation, if attributed to Clause (g), would be, that if the two Courts, namely, Family Court and the District Court, are to avoid any such conflict, one of these Courts would have to pass order, as regards guardianship, without application of mind. For instance, when a Family Court appoints a person as a guardian of the person of a minor, he would be, on an application made to the District Court, automatically appointed as guardian of the property of the minor. No judicial exercise of power can be mechanical or without application of mind. Such an interpretation, if attributed to Clause (g), would not only lead to multiplicity of proceedings, but would also encourage passing of orders without application of mind. This would not sub-serve the legislative intent with which the Family Courts have been established. 12.
No judicial exercise of power can be mechanical or without application of mind. Such an interpretation, if attributed to Clause (g), would not only lead to multiplicity of proceedings, but would also encourage passing of orders without application of mind. This would not sub-serve the legislative intent with which the Family Courts have been established. 12. Because of what have been discussed above, it becomes clear that an application, seeking appointment as guardian of the person as well as the property of a minor, would lie to the Family Court in the area, where the Family Court has been established, and this exercise of jurisdiction of the Family Court would be to the exclusion of the District Court in the said area. Situated thus, I do not find any infirmity, factual or legal, in the impugned order, dated 12-2-2009 aforementioned. This revision, therefore, fails and the same shall accordingly stand dismissed. 13. No order as to costs. Appeal dismissed