Power to pass interim orders for custody of minor wards under sec 12-1 of The Guardians and Wards Act accrues only to the Family Court

Ansar Vs Nadeera and Ors

Kerala HC

12/02/2019

OP (FC).No. 571 of 2018

About/from the judgment:

The Guardians and Wards Act, 1890 - Section 45 - Penalty for Contumacy – Orders of fine and detention passed without notice to the respondent and minimal enquiry into the cause for non-production of child, would be violative of principle of natural justice and therefore illegal.

 

Under Section 45(1), if the person in custody of the child disobeys the order passed under Section 12 (1), he incurs the liability for payment of prescribed amount of fine as well as detention in civil prison. Unlike the Scheme of the Code dealing with execution of decrees and orders of civil courts, Section 45(1) does not seem to limit the order of detention to any specific period. The detention takes its course until the child is produced or guardian in default undertakes to cause production of the child in compliance with the order of the court. The undertaking made by the recusant guardian, in our view, may be accepted by the court only in a case where it is made with bona fide intention to cause production of the child.

 

The Guardians and Wards Act, 1890 – Section 25 (2) - The Code of Criminal Procedure, 1973 - Section 97 - Arrest and production of the child through issue of search warrant in appropriate cases - Such power is rarely exercised, but is confined to limited situations arising under Section 25 (1). Section 25 is an independent provision which can stand apart from Section 12(1). These two provisions may overlap in certain cases. Section 25, however, is no remedy for breach of orders passed under Section 12 (1) of the G&W Act though the converse may be true.

 

The Guardians and Wards Act, 1890 - Section 12 (1) - Custody of the Wards - Power to make interlocutory order for production of minor and interim protection of person and property – Power to pass interim orders for custody of minor wards accrues only to the Family Courts.

 

Nowhere in the FC Act or Rules thereunder any specific provision empowering the Family Courts to grant or refuse orders for interim custody of minor children is seen incorporated. After the advent of the FC Act, the Family Courts have exclusive jurisdiction to entertain and decide matters relating to guardianship and custody of minor children, by virtue of powers conferred by Section 7 and 8 of the FC Act. Section 7 of the FC Act enacts that the powers formerly exercised by the District Court under the G&W Act in relation to guardianship and custody of minor wards shall stand transferred to the Family Courts, on their establishment in the notified places. Indubitably, therefore, the power to pass interim orders for custody of minor wards accrues only to the Family Courts, by virtue of provisions in Section 12 of the G&W Act. In substance, the Family Courts called upon to issue orders for interim custody are necessarily to trace its source of power to Section 12 of the G&W Act than elsewhere. No provision is made in the FC Act or Rules prescribing the mode of enforcement of an order passed under Section 12 (1) of the G&W Act. When the FC Act is silent, relevant provisions for enforcement of such orders shall necessarily be traced from the G&W Act itself.

 

The Family Courts Act 1984 - Section 10 (1) - The Code of Civil Procedure, 1908 - Order XXXIX of Rule 2-A - Consequence of disobedience or breach of injunction – An order of a Family Court for the custody of minor children, though being in the nature of a directive, and an interim order of mandatory injunction, cannot be identified with an order passed by a civil court in accordance with Order XXXIX Rules 1 and 2 or other provisions of the Code.

 

It is apparent from the above provision that orders of civil courts under Order XXXIX and Rule 1 and 2 or other provisions of the Code, if any alone are made enforceable under Order XXXIX Rule 2-A of the Code. An order of a Family Court for the custody of minor children, though being in the nature of a directive, and an interim order of mandatory injunction, cannot be identified with an order passed by a civil court in accordance with Order XXXIX Rules 1 and 2 or other provisions of the Code. This is so, notwithstanding the fact that all the provisions of the Code are also applicable to the Family Courts subject to the restrictions under Section 10 (1) of the Family Courts Act 1984. Section 10 of the FC Act restricts application of the provisions of the Code and also other laws to the Family Courts in matters for which the FC Act and Rules framed thereunder contain provisions. In the event of any inconsistency between the provisions of the FC Act and other statues, Section 20 of the FC Act mandates that the FC Act alone shall prevail. [Para 8]

 

Facts of the Case

 

Order XXXIX Rule 2-A of the Code was misapplied to this case by the petitioner. The appropriate legal remedy available to the petitioner is contained only in Section 45 (1) of the G&W Act.

Read the Judgment

Knowledge and content of about almost all their respective descriptions are borrowed from law-related blogs and websites, we, therefore, wish to give proper credit to all the respective law-related blogs and websites like LiveLaw, Bar and Bench, LatestLaws, PathLegal, FirstLaw, Lawctopus, IndianKanoon, Manupatra, LegallyIndia etc.. Many of the judgments are also taken from them websites of Hon'ble Supreme Court and other respective Hon'ble High Courts!

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