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Judgments of Supreme Court of India and High Courts

Anushka Baptista @ Hemlata … vs Lloyd Francis Baptista on 6 August, 2019

901.gp.3.2019;gp.19.2017.doc

dik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
AND
Dhanappa
I. Koshti IN ITS INHERENT GENERAL JURISDICTION
Digitally signed by
Dhanappa I. Koshti

GUARDIANSHIP PETITION NO. 3 OF 2019
Date: 2019.08.08
16:50:57 +0530

SectionSmt. Shruti Hiren Mehta …Petitioner
vs
Hiren Ghanshyamdas Mehta … Respondent.

WITH
GUARDIANSHIP PETITION NO. 19 OF 2017

SectionAnushka Baptista @ Hemlata Dodwani …Petitioner
vs
Lloyd Francis Baptista … Respondent.

…..
Mr Omprakash Pandey a/w Ms Aneeta Jasani for the Petitioner in G.P.
No. 3 of 2019.
Ms Neha Prashant a/w Mr Rupesh Geete and Ms Sanaya Kapadia I/b
Parinam Law Associates for the Petitioner in G.P. No. 19 of 2017.
Ms Ankita Phadke for Respondent No.1 in G.P. No. 19 of 2017.
Mr Cyrus Ardeshir a/w Mr Ziyad Madon, Amicus Curiae present.
…..

CORAM : B. P. COLABAWALLA, J.

AUGUST 6, 2019.

P.C. :

Both these Guardianship Petitions have been filed under

the provisions of the Guardians and SectionWards Act, 1890. Both these

Guardianship Petitions are only with reference to appointing a

guardian of the person of the minor and not the properties of the

minor.

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2 The reliefs sought in Guardianship Petition No. 3 of 2019

are as under –

(a) That notice u/s 11 of the Guardians and SectionWards Act, 1890 VIII of
1890 may be dispensed with;

(b) That the petitioner being mother and natural guardian of the
minor Param s/o Hiren Mehta @ Prithvi s/o Hiren Mehta be
appointed (without security and without remuneration) as a
guardian of the minor;

(c) That the petitioner may be granted leave to apply to this Hon’ble
Court as and when occasion may arise.

Similarly, the reliefs sought in Guardianship Petition No.19 of 2017

are as under –

(a) Declare the petitioner as the sole guardian of the Minor Daughter
in accordance with Section 7 of the Guardian and SectionWards Act,
1890;

(b) Direct the Respondent to pay a monthly allowance of
Rs.2,00,000/- (Rs. Two Lakhs) to the petitioner for her care and
pains in the execution of her duties and in accordance with
Section 22 of the Guardians and SectionWards Act, 1890.

(c) Direct the Respondent to pay the Petitioner the litigation costs of
the present proceedings in accordance with Section 49 of the
Guardian and SectionWards Act, 1890;

(d) Declare that the Petitioner shall have temporary custody of the
Minor Daughter until the final disposal of the present petition
pursuant to Section 12 of the Guardian and SectionWards Act, 1890.

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3 In both the aforesaid Guardianship Petitions, a

preliminary issue of jurisdiction was raised by the respondents.

According to the respondents, in view of the provisions of Section 7

read with Section 8 and Section 20 of the Family Courts Act, 1984,

this Court’s jurisdiction to entertain the aforesaid two Guardianship

Petitions was ousted.

4 To assist this Court on the aforesaid issue, on the last

occasion, I had appointed Mr Cyrus Ardeshir and Mr Ziyad Madon as

Amicus Curiae. They have given their invaluable assistance for

which this Court is deeply grateful.

5 Mr Ardeshir brought to my attention a decision of a Full

Bench of this Court in the case of Romila Jaidev Shroff Vs Jaydev

Rajnikant Shroff [2000 SCC OnLine Bom. 300: 2000(3) Mh.L.J.

468 (FB): 2000(4) Bom.C.R. 122 (FB)]. Mr Ardeshir took me

through this entire judgment and brought to my attention that the

Full Bench has clearly held that where the High Court in exercise of

its Ordinary Original Civil Jurisdiction (within its local limits) is

taking up those very matters which are covered by the Family Court,

and if it is acting as a District Court, it certainly would lose its

jurisdiction. Mr Ardeshir also brought to my attention that for the

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purpose of the SectionFamily Courts Act, the Full Bench has held that the

word ‘District Court’ used in Section 8 of the Family Courts Act, would

include the High Court exercising its Original Civil Jurisdiction under

Clause 12 of the Letters Patent. Mr Ardeshir, therefore, submitted

that the Full Bench has clearly held that when several High Courts of

this country, some of which happen to have Ordinary Original Civil

Jurisdiction, and it exercises such jurisdiction, the High Court is a

District Court for that limited purpose, and if as a result of this, the

High Court on its original side loses its jurisdiction, it does. Mr

Ardeshir pointed out that it was clarified by the Full Bench that the

loss of jurisdiction will be confined only to that part of the Original

Civil Jurisdiction as like in the instant case, is relating to matters to

be dealt with under the SectionFamily Courts Act, 1984. In this regard, Mr

Ardeshir brought to my attention the relevant paragraphs of this Full

Bench decision ( in the SCC OnLine Report) which read thus –

“4. The plea with regard to the Family Court is raised on the basis of
the provisions of Sectionsection 2(e) along with Sectionsection 8 of the said Act.
Exclusion of jurisdiction of the Civil Court will also have to be
considered. Section 2(e) reads as under:

“2(e) all other words and expressions used but not
defined in this Act and defined in the Code of Civil
Procedure, 1908 (5 of 1908) shall have the meanings
respectively assigned to them in that Code.”

Relevant portion of Sectionsection 8 reads as under:

“8.Exclusion of jurisdiction and pending proceedings–

(a) no District Court or any Subordinate Civil Court
referred to in sub-section (7) shall in relation to such area

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have or exercise any jurisdiction in respect of any suit or
proceeding of the nature referred to in the Explanation to
that sub-section;”

5. Reference to District Court or any Subordinate Civil Court may in
the aforesaid portion of the said Sectionsection 8 will therefore have to be
understood with reference to the Code of Civil Procedure. Section
2(4) of the Code reads as under:

“2(4) district means the local limits of the jurisdiction of a
principal Civil Court of Original Jurisdiction (hereinafter
called a “District Court”) and includes the local limits of
the ordinary original civil jurisdiction of a High Court.”

6. The matter would have been very simple before the learned Single Judge
on the basis of the aforesaid statutory material. He could have very easily
rested the controversy. However, he was faced with the Division Bench of
this Court taking a view that in spite of the aforesaid definition in the Code
and the said provisions of Sectionsection 7 of the Family Courts Act, the
jurisdiction of this Court under Clause XII of the Letters Patent is not
ousted. This judgment is directly under the SectionFamily Courts Act. Had there
been only the judgment, the learned Single Judge was bound by it and
would have followed the same.

7. However, he was facing a situation where the Supreme Court having
interpreted the said definition as contained in the Code and after
considering the same held that the High Court exercising its Ordinary
Original Civil Jurisdiction will be a District Court. No doubt, this has
been held with reference to the provisions of Sectionsection 105 of the Trade and
SectionMerchandise Marks Act, 1958 read with Sectionsection 2(e) of the said Trade and
SectionMerchandise Marks Act, 1958.

8. By virtue of Sectionsection 2(e) of the Trade and SectionMerchandise Marks Act,
1958, the expression “District Court” was given the same meaning
as assigned to it in the Code of Civil Procedure. Thus, the learned
Single Judge was faced with a situation that with reference to the
aforesaid definition clause of Code while dealing with Sectionsection 2(e) of
the Trade and SectionMerchandise Marks Act, the learned Judges of the
Hon’ble Supreme Court had come to a conclusion that expression
“District Court” would include a High Court exercising its
jurisdiction on original side in respect of the civil matters.

********************

12. Ordinarily the definition of the Code of Civil Procedure contained in
Sectionsection 2(4) having been interpreted by the Hon’ble Supreme Court, the
controversy should not continue any further. However, when the judgment
of the Division Bench of this Court is under the Family Court itself, while
the Supreme Court judgment is not, and when in respect of the said Family

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Court which has Courts under an All India Statute, it had the judgment of
the Full Bench of Madras High Court and when that judgment was
considered by the Division Bench of this Court which has, in our opinion,
very correctly expressed the sentiment that the judgment of the High Court
of this Country in relation to an All India Statute should ordinarily be
respected and followed. We therefore now proceed to consider the question
before us whether the expression ‘District Court’ used in Sectionsection 8 of the
Family Courts Act would include the High Court exercising its Original
Civil Jurisdiction under Clause 12 of the Charter.

*************

14. Whether it comes to include the expression ‘District Court’ or not is the
crux of the dispute. If that definition is closely read, it appears that what
has been defined is not only the concept of a District but what is the area
of operation of the Principal Civil Court of Original Jurisdiction of that
District. In parenthesis, there is also an indication to the said Principal
Civil Court of the Original Jurisdiction herein called a ‘District Court’.
Once this explanation in the parenthesis is understood in its proper
perspective, the entire area over which the Principal Civil Court of
Original Jurisdiction of a District exercises its jurisdiction is the District
Court for that District. Understood in that light section 2(4) of the Code of
Civil Procedure can well be taken to define concept of a District Court
itself. Apart from the jurisdiction in a Court either vested or divested by
operation of a Statute, once a jurisdiction given to the Court, it has to be
with reference to a territory and most of the time it also has to hold a
reference to a pecuniary limits. There may be a Court with unlimited
pecuniary jurisdiction but its territorial jurisdiction will always be
confined to the clearly demarcated distinct identity which will have to be
referred to as a District. Understood in that light, the aforesaid sub-section
(4) of section 2 of the Code of Civil Procedure clearly indicates that the
Principal Civil Court of Original Jurisdiction is to be confined to the area
of operation to District for which it is a Court viz. District Court. If it is
not understood in that light, the words appearing in the parenthesis would
become redundant.

15. The provisions of Civil Courts Act, 1869 pre-dates the Code of Civil
Procedure, 1908. The said Civil Courts Act which had to be enacted
provides for different categories of Civil Courts which are made
subordinate to each other. A concept well known to the Code of Civil
Procedure under Sectionsection 3 thereof reads as under:

“3.Subordination of Courts.– For the purposes of this
Code, the District Court is subordinate to the High Court,
and every Civil Court of a grade inferior to that of a
District Court and every Court of Small Causes is
subordinate to the High Court and District Court.”

16. The Concept of Small Cause Court is drawn from their respective

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SectionSmall Cause Courts Act, Presidency and Provincial. But for the local
enactment like the Civil Courts Act, for all practical purposes, in any
District, as understood under the Code of Civil Procedure, there will
be only one Court viz. Principal Civil Court of Original Jurisdiction
i.e. a District Court. As per the aforesaid Sectionsection 3, no doubt,
District Court is subordinate to the High Court. This provision of
Sectionsection 3 had prompted the learned Judges of the Division Bench of
this Court in Kanak Mehta’s case, which is one of the reasons, to
hold that the High Court cannot be considered as District Court for
the purpose of SectionFamily Courts Act. The Family Court does not
contemplate the High Court to be considered as such. It refers to the
District Court or any subordinate Civil Court, both, in Sectionsection 7 as
well as Sectionsection 8. Sections 7 and Section8 show that the jurisdiction of the
District Court as well as subordinate Court is ousted in respect of the
matters which can be entertained by the Family Court. If therefore in
exercise of its Ordinary Original Civil Jurisdiction within the local
limits, this High Court is taking up those very matters which are
covered by the Family Court Cases, and if it is acting as a District
Court, it certainly would lose the jurisdiction. It is nobody’s case that
it is a subordinate Court. All that has been urged on behalf of the
defendant is that whenever it exercises Ordinary Original Civil
Jurisdiction as per clause 12 for the purposes of Code of Civil
Procedure, it is a District Court for the District of Mumbai which is
the local limits. If that be so, it would lose the jurisdiction.

17. Section 3 of the Code of Civil Procedure puts the High Court on
the top and District Courts and Subordinate Courts under it. It is the
Three Tier System. However, Sectionsection 3 does not deal with Ordinary
Original Civil Jurisdiction of the High Court in any manner
whatsoever. In fact, the Code itself cannot be said to be dealing with
it in any manner except recognizing its Original Civil Jurisdiction in
Sectionsection 120 by declaring that the provisions of Sectionsections 16, Section17 and Section20
shall not apply to the High Court when it exercises its Original Civil
Jurisdiction. It is obvious that this very section will apply to the same
High Court vested with Original Civil Jurisdiction if it is operating
on its Original Side. When Three Tier System is envisaged by section
3 of the Code of Civil Procedure, obviously, reference in that section
is to the High Court on its Appellate Side and not its Original Side.
Once a reference to the High Court in section 3 of the Code of Civil
Procedure is understood in this light, the said impediment felt by the
learned Judges of the Division Bench of this Court on account of
section 3 of the Code where the District Court is specifically
declared to be subordinate to the High Court should not survive.

18. On the contrary, with reference to section 2(4) of the Code of
Civil Procedure, for all practical purposes, save and except section

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120 of the Code of Civil Procedure, the High Court which exercises
its Original Civil Jurisdiction will be in the same position as the
District Court in relation to a District viz. Principal Civil Court of
Original Jurisdiction.

19. That exactly is the finding given by the Hon’ble Supreme Court
in Raja Soap Factory case. This has elaborately been brought out by
the said learned Single Judge when he made this reference. However,
on behalf of the Original plaintiff, it was urged that the said Raja
Soap Factory case will be confined to the provisions of Trade and
SectionMerchandise Marks Act, 1958 because it is with reference to the
Sectionsection 2(e) thereof which says that meaning assigned to the
expression in the Code of Civil Procedure to the word ‘District
Court’ will be the same for the purposes of Trade and SectionMerchandise
Marks Act, 1958. As against that in the SectionFamily Courts Act, a
reference in Sectionsection 2(e) says that the words and expressions used but
not defined in the Act and defined in the Code of Civil Procedure,
1908 shall have the meanings respectively assigned to them in that
Code.

********************

31. When thus interpreted, in our opinion, the conclusion would be
inescapable that when the High Court exercises its Ordinary
Original Civil Jurisdiction in relation to the matters under the
SectionFamily Court Act, it would be a District Court as understood therein.
It would, therefore, lose its jurisdiction. The reference is answered
accordingly.”

6 Mr Ardeshir then also brought to my attention a decision

of another learned Single Judge ( Nishita Mhatre J.) in the case of

Girish J Bobade Vs. Ajay Thakur Ors (2005 SCC OnLine Bom.

1491 : (2006) 2 Mh. L.J. 702) wherein the aforesaid Full Bench

judgment was followed by the learned Single Judge in a Guardianship

Petition filed before this Court. The learned Single Judge inter alia

held that the Guardianship Petition seek a guardianship of the person

of a minor filed by either parents or any relative of a minor would lie

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before the Family Court irrespective of whether there is matrimonial

dispute pending before that Family Court. Mr Ardeshir also pointed

out that a distinction has been drawn in this judgment relating to the

guardianship of the person of the minor and guardianship with

reference to the property of the minor. Mr Ardeshir pointed out that

in this Judgment, in paragraph 11, it has held that the High Court will

continue to exercise its Ordinary Original Civil Jurisdiction in respect

of petitions relating to guardianship of the property of the minor.

7 When these judgments were cited at bar, and which

clearly lay down that a Guardianship Petition for the person of the

minor would lie before the Family Court and the jurisdiction of this

Court on its Original Side is clearly ousted, the learned advocates

appearing for the petitioners in both the aforesaid petitions sought

leave to withdraw the Guardianship Petitions with liberty to file the

appropriate proceedings in the Family Court seeking appropriate

reliefs. In these circumstances, both the Guardianship Petitions are

dismissed as withdrawn with liberty as prayed. No order as to costs.

8 It is needless to clarify that I have not examined the

merits of the matter in either of the Guardianship Petitions and the

Family Court shall decide whatever proceedings filed by the

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petitioners herein before it on its own merits and in accordance with

law.

9 Hence forth the Registry is directed to examine the

Guardianship Petitions filed in this Court in light of this Judgment

and only thereafter place them before the appropriate Bench.

(B.P.COLABAWALLA, J.)

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