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Originally posted by :BONDGAL2010
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Section 9 of Guardians and Wards Act.
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Originally posted by :Advocate Rabin Majumder, Delhi
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Dear Querist,
Please be advised that for obtaining custody of your minor child, you would need to file a petition for child custody under Section 12 of G&W Act.
Trust this would suffice.
Rabin Majumder
Advocate & Attorney
For Nu.Delhi.LAw.Fora.
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Nah, <bondgirl> and <Adv. Robin Majumdar, Delhi>
The que. of Author is simple and straight: Which is the right Section to use to file Visitation and for Custody of child and by advising him to use S. 9 GWA and or S. 12 GWA both of you have wrongly advised him.
My Reasoning:
Starting with
S. 9 HMGA
1a. Well during the British period, testamentary powers were conferred on Hindus, and the testamentary Guardians also came into existence. It was father's prerogative to appoint testamentary guardians. By appointing a testamentary guardian the father could exclude the mother from her natural guardianship of the children after his death.
1b. Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on both parents.' The father may appoint a testamentary guardian but if mother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian. If mother appoints testamentary guardian, her appointee will become the testamentary guardian and father's appointment will continue to be ineffective. If mother does not appoint, father's appointee will become the guardian.
1c. From above few corallites pops that are;
(i) It seems that a Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled to act as their natural guardian, as S. 9(1) HMGA confers testamentary power on him in respect of legitimate children only.
(ii) In respect of illegitimate children, S. 9(4) HMGA confers such power on the mother alone.
1d. Under S. 9, HMGA, testamentary guardian can be appointed only by a will.
S. 9 GWA
“Court having jurisdiction to entertain application.- (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.
If the application is with respect of 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 the place where he has property.
If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly on conveniently by any other District Court having jurisdiction.”
S. 12 GWA
12. Power to make interlocutory order for production of minor and interim protection of person and property.- (1) The Court may direct that the person if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.
If the minor is a female who ought not to be compelled to appear in public, the claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or
Any person to whom the temporary custody and protection of the property if a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.
Addendum reasoning:
3. Now, if you say you took his que. to be of Jurisdiction question then be noted that S. 9 GWA comes into play only when challenged by a party then it is read down with S. 10 and S. 7 (i & ii) R/w S. 8 both of FCA, 1984. The author lives in Bangalore and Bangalore has a Family Courts even if he files either using S. 26 HMA and/or using S. 25, S. 10, S. 17 and S. 12 all of GWA both independent Suits will be dismissed at admission stage itself due to lack of Jurisdiction since it is not clear from the post where the child was born and brought up first 180 days!
Here are question to Author from me:
Q 1: Where the child was born?
Q 2: Where the child ordinarily resided after birth?
Q 3: Since the year mother left matrimonial home along with child and till date where the child is ordinarily residing at?
Cities names please in above !
Kindly answer these three questions first to set the Jurisdiction issue then correct usage of Section for Interim Visitation followed by contested Custody Suit for custody of child could be advised to you.
A message to Mr. Robin Majumdar:
1. I noticed from last 1 week you advertised your firm’s name to two queries and even passed cell no. with name of another Advocate to a querist for Dwarka Court whereas your above advise of Section 12 GWA is not right advise. Kindly give correct advise first then look for commercial business from public looking for legal professionals here.
