- The Kerala High Court recently ruled that District Courts can only appoint a guardian for a minor's property, not their person and that only the Family Court has the authority to do the latter.
- If there is overlapping jurisdiction, it may result in inconsistent orders, which could jeopardize the child's welfare and well-being, which is of utmost importance.
- The issue of guardianship of the minor's person between the minor's parents must be decided by a Family Court; the District Court cannot decide on that issue, especially when the appellant's petition for guardianship and custody of the minor child is still being considered by a Family Court.
In section 4(2) of the Guardians and Wards Act, 1890, a guardian is described as a person who has responsibility for a minor's person, property, or both. The Hindu Minority and Guardianship Act, 1956, contains a similar definition of the term guardian. It should also be emphasized here that the provisions of this legislation are a supplement rather than replacing the Guardians and Wards Act of 1890. The law of guardianship is based on the inability of juveniles, lunatics, and idiots to look after and manage their interests primarily because minors are incapable of caring for themselves and their property due to a lack of understanding ability.
The Kerala High Court, in a landmark decision titled KS Narayana Elayathu vs Sandhya on the issue of jurisdiction, clarified the legal position on the jurisdictional aspect of the case and explicitly held that District Courts have the authority to appoint a guardian for a minor's property, while only the Family Court has the authority to appoint a guardian for a minor's person. This article seeks to analyze the legal provisions with reference to a couple of major cases involving the court’s jurisdiction to settle the matter and the Kerala High Court's interpretation over the same.
GUARDIANSHIP – APPLICABLE LAWS
Prior to 1984, all family matters were heard by ordinary civil court judges who took a long time to provide relief to the parties. But, in 1984 the Family Courts Act was established and went into effect, with the primary goal of removing family and marital issues from the overloaded and traditional courts of law and placing them in a basic court where a layperson could comprehend the procedure. Additionally, it is important to understand that the family court shall have all of the jurisdiction that a District Court or a subordinate Civil Court has, and it shall be deemed to be a District Court or a subordinate Civil Court for this purpose. To dispel any doubts about jurisdiction, specifically concerning child custody and the appointment of a guardian of property and person, the following provisions and cases are provided in detail.
Hence, according to Section 7 of the Family Courts Act, 1984, a family court shall have and exercise all jurisdiction exercisable by any District Court or any subordinate civil court under any law in force in respect of suits and proceedings of the nature referred to in the Explanation, which, among other things, includes, according to clause (g), a suit or proceeding in relation to the guardianship of a person or the custody of, or access to, any minor.
Referring, the case of Abraham G Karimpanal and others vs. Nil (2004), it was established that Section 8 of the Family Courts Act expressly states that where a family Court has been established for any area, no District Court or any subordinate civil court referred to shall, concerning such area, have or exercise any jurisdiction in respect of the suits or proceedings referred to, in the Explanation which includes clause (g).
On the other hand, Section 7 of the Guardian and Wards Act of 1980 authorizes the jurisdictional District Court to appoint or declare a person to be a guardian of a minor's person or property or both, provided the court is convinced that it is for the minor's welfare. And, in addition to that, Section 8 of the Guardian and Wards Act sets out the class of persons on whose application alone, the court can exercise the power vested in it by Section 7 of the act.
Another relevant provision, to cite here is section 9 of the Guardian and Wards Act, 1980 which is related to the Court having jurisdiction to entertain application that provides the following sub-clauses;
(1) If the application is for guardianship of the minor's person, it must be filed with the District Court in the minor's place of living.
(2) If the application is for guardianship of the minor's property, it may be made to the District Court with jurisdiction in the minor's habitually residing location or to a District Court with jurisdiction in the minor's property location.
(3) If an application for guardianship of a minor's property is filed in a District Court other than the one that has jurisdiction in the place where the minor ordinarily resides, the Court may return the application if it believes it would be handled more justly or conveniently by any other District Court with jurisdiction.
CONFLICT IN JURISDICTION
With reference to the above-mentioned provisions, in the recent case of KS Narayana Elayathu vs Sandhya, the wife, who is the respondent, in this case, lived separately from her husband who is the appellant, with her minor daughter due to a strained marital relationship. The minor's maternal grandmother signed a property settlement deed in the minor's favour. The wife petitioned the District Court to be declared the minor's guardian of person and property. The husband contested this, claiming that under Section 7(1)(g) of the Family Court's Act, 1984, the Family Court has taken over the whole jurisdiction of the District Court in the present case according to Section 8 of the Family Court’s Act as the provision excludes the jurisdiction of other courts to take cognizance of the suit or proceedings.
To understand the interpretation onthe jurisdictional point of view in the provisions and the ruling of the Kerala High Court, like briefly mentioned above the court has observed that the Family Courts were established to resolve family disputes and to provide exclusively within their jurisdiction, matters relating to matrimonial relief, such as nullity of marriage, judicial separation, divorce, restitution of conjugal rights or declaration as to the validity of a marriage or as to the matrimonial status of any person, the property of the spouses or either of them, declaration as to the legitimacy of any person, guardianship, and other matters. Hence, the types of cases and proceedings that fall under the jurisdiction of a Family Court are therefore listed under Section 7 of the Family Courts Act as already discussed.
The Jharkhand High Court held in the case of Devi Lal Bhagat vs. Rekha Bhagat (2008) that it is manifestly clear from a bare reading of Section 7(1) explanation (g) of the Family Courts Act, 1984, and Section 9 of the Guardian and Wards Act, 1890, that suits and proceedings, including those where any question of guardianship of the person of any minor or his custody or access to him arises, whether governed by any personal law or the provisions to the Guardian and Wards Act would be covered only under the Family court subject to jurisdiction. Further, it was observed by the Jharkhand High Court that, if the issue involves the appointment of a guardian in respect of a minor's property, whether, under personal law or any other law currently in force, the Family Court lacks jurisdiction. The Family Court, would not have jurisdiction in such actions or procedures if the matter of appointing a guardian for both purposes of a minor's person and property is involved, because Clause (g) of the Act does not encompass proceedings involving a minor's property.
The relief for appointing a guardian of the person of the minor is exclusively coming under explanation (g) to Section 7(1) of the Family Courts Act and so, the jurisdiction of the District Court for that relief is taken away by the jurisdiction of Family Court. Therefore, in the case of KS Narayana Elayathu vs Sandhya, the father who is the respondent, has already filed a petition with the Family Court to obtain custody of his minor daughter and as a result, the Family Court takes over the jurisdiction of the District Court in cases involving guardianship of a person, custody of, or access to a minor child between parties to a former marriage. This was stated primarily because the question regarding guardianship of the person of the minor between the parents of the minor is to be decided by a Family Court, and the District Court cannot decide on that issue, especially when the proceedings initiated by the appellant for getting guardianship and custody of the minor child is pending consideration before a Family Court.
But the fact that a court cannot appoint a person's guardian is no obstacle to appointing a property guardian.The Hon'ble HC observed that while the impugned section has given the Family Court jurisdiction over appointing a guardian for a minor's person, the Family Court has no jurisdiction over appointing a guardian for the minor's property because that dispute does not fall under the explanation (g) to section 7(1) and the appeal was partially granted.
To sum it up, under the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890, the well being of the child has always been a top priority and, the fundamental goal of the legislation is to get a conciliatory approach to encourage the parties to reach an agreement and offer them with prompt relief. But, as seenin the provisions of the act and the recent case, a dispute occurred over the appointment of a guardian of a juvenile for a person and property, which was clarified by the Hon'ble Kerala High Court and has established that the district court cannot appoint a guardian for minors but can do for the minor’s property and the appointment of person vests with the family court.