Whether High court can entertain petition for appointment of guardian of person of the minor in its original jurisdiction at Mumbai?

The judgment of the Full Bench leaves no room for doubt that the High Court must be considered as a District Court for the purposes of the Family Courts Act and since the Family Courts have been established in the city of Mumbai, a Guardianship Petition for the custody or access to any minor would lie in the Family Court. The Guardians and Wards Act was enacted in 1890 and the High Court exercising its Ordinary Original Civil Jurisdiction is considered a District Court under that Act. The High Court’s jurisdiction has been ousted in the light of the provisions of the Family Court Act in case of guardianship proceedings instituted by a relative of a minor for guardianship of the minor’s person. Such a proceeding clearly falls within the purview of Section 7 of the Family Courts Act. Therefore, only the Family Court would have jurisdiction in view of the provisions of Section 20, By virtue of Section 20, the Family Courts Act has an overriding effect over any other law. However, the High Court will continue to exercise its Ordinary Original Civil Jurisdiction in respect of petitions relating to the guardianship of the property of a minor.{11}

12. In my opinion, therefore, a Guardianship Petition seeking guardianship of the person of a minor filed by either the parents or any relative of a minor would lie before the Family Court, irrespective of whether there is a matrimonial dispute pending before that Court. The Petition in the instant case, therefore, is not maintainable before this Court exercising its Ordinary Original Civil Jurisdiction and is accordingly, returned to the petitioner for presenting the same before the appropriate Court.

Bombay High Court
Girish J. Bobade vs Ajay Thakur And Ors. on 22 December, 2005

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