( 1 ) THIS petition is filed under section 11 of the guardians and Wards Act, 1890. The petitioner is seeking guardianship of his minor daughters who are in the custody of their mother, the petitioners wife. The question which has arisen in this petition is whether such petition is maintainable before this Court in view of the provisions of the Family Courts Act, 1984 and the judgment of the Full Bench of this Court in the case of Romila Jaidev Shroff vs. Jaidev Rajnikant Shroff, 2000 (3) Mh. LJ. (FB) 468 = II (2000) DMC 600 (FB ).

( 2 ) SINCE this is an important question of law which would affect several matters, I requested the learned Advocate General to address the Court. He has brought to my notice various provisions of law which have enabled me to deliver this judgment. Ms. Swati Deshpande, who was appointed as amicus curiae has also rendered able assistance in the matter. I am grateful to both the learned advocate General as well as Ms. Swati Deshpande for their valuable assistance in the matter.

( 3 ) THE petitioner has sought guardianship of the person and property of his minor daughters Divya and Priya. Respondent No. 1 to the Petition is a family friend of the petitioner. Respondent No. 2 is the wife of the petitioner. Respondent Nos. 3 and 4 are the father and brother of respondent No. 2. According to the petitioner, respondent Nos. 3 and 4 have abetted with respondent No. 1 and kidnapped his wife and his two minor daughters. In these circumstances, the petitioner has sought guardianship of the person and property of the daughter Divya aged 13 years and daughter Priya aged 11 years. Admittedly, there is no pleading at all that there is any property in the name of the minors. Therefore, the Petition will have to be considered as one for guardianship of the person of the two children.

( 4 ) SECTION 7 of the Guardians and Wards Act, 1890 empowers the Court to appoint a guardian of a minor, of his person, or property, or both, or to declare a person to be such a guardian. The Court has to be satisfied that it is for the welfare of the minor that such an order is being passed. An order for being appointed as a guardian can be passed only when an application is made by the persons specified in section 8. Such an application may be made by someone desirous of being appointed as a guardian or by any relative or friend of the minor. The Collector of the district or other local area within which the minor resides or in which he has property or the Collector having authority with respect to the class to which the minor belongs can also similarly file an application for guardianship.

( 5 ) UNDER section 9 if the application is made with respect to the guardianship of the person of a minor, it is to be made before the District Court having jurisdiction in the place where the minor ordinarily resides. If the application is made with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction where the minor resides or where the property is situated.

( 6 ) PETITIONS filed under the Guardians and Wards Act in respect of the guardianship of the person and property of the minor are being entertained in this court. However, with the advent of the Family Courts Act, 1984 on the Statute book, in my opinion, the petitions filed under the Guardians and Wards Act cannot be entertained in this Court if they are filed for appointment of a guardian of the person of a minor. For the purposes of Guardians and Wards Act, the term "district Court" as defined in section 4 (4) includes the High Court in the exercise of its Ordinary Original Civil Jurisdiction.

( 7 ) THE Family Courts Act has been enacted in 1984 and came into force in the State of Maharashtra on 1-12-1986. The statement of objects and reasons of the Family Courts Act mentions that the legislature felt that there was a need, in the public interest, to establish Family Courts for speedy settlement of family disputes. The

Click Here to Read the rest of this document