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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
KESANG DOMA BHUTIA, J.
Smt. Tamalika Bose — Appellant
Versus
Sri Mukut Bose — Respondent
C.O. 2071 of 2021
Decided on : 19-01-2022
Guardians and Wards Act - Jurisdiction - Section 24 and 25 - Section 4-A - Fast Track Court - Additional District Judge - Calcutta High Court - Judicial Functions
Fact of the Case:
The case involved a challenge to the jurisdiction of the Fast Track Court to hear a matter under the Guardians and Wards Act, 1890. The petitioner sought permission to visit his minor child who was in the custody of the mother. The jurisdiction of the Fast Track Court was challenged based on the provision of section 4A of the Guardians and Wards Act, 1890.
Finding of the Court:
The court found that the Fast Track Court, presided over by an Additional District Judge, is competent to hear matters under the Guardians and Wards Act, 1890. It held that the Fast Track Court is not subordinate to the District Court in terms of judicial functions and is empowered to consider and hear applications under the Act.
Issues: The main issue was whether the Fast Track Court, under the jurisdiction of an Additional District Judge, had the authority to hear matters under the Guardians and Wards Act, 1890, especially in the absence of a general or special order from the High Court empowering it to do so.
Ratio Decidendi: The court relied on the interpretation of Section 4-A of the Guardians and Wards Act, 1890, and the previous decision in Shirshna Nath Mallick Vs. Arun Kumar Sarkhel, to establish that the Fast Track Court, despite being presided over by an Additional District Judge, is competent to hear matters under the Act.
Final Decision: The court dismissed the application challenging the jurisdiction of the Fast Track Court and upheld the competence of the Additional District Judge, Fast Track Court, to consider the application under Section 24 and 25 of the Guardians and Wards Act, 1890.
JUDGMENT :
Kesang Doma Bhutia, J.
This is an application under Article 227 of the Constitution of India filed by Smt. Tamalika Bose challenging the jurisdiction of Additional District Judge, Fast Track, Second Court, Howrah to hear Misc. Case No. 106 of 2019, under the Guardians and Wards Act, 1890 and has also challenged the order dated 18.11.2021 and whereby the learned Court below has rejected the application of the petitioner on the issue of jurisdiction of the said Court.
2. Sri Mukat Bose being the father of the child in-question has filed an application under Section 24 and 25 of the Guardians and Wards Act, 1890 in the court of learned District Judge, Howrah. Subsequently, such case was transferred by the learned District Judge, Howrah to the Court of Additional District Judge, Fast Track, Second Court, Howrah for disposal. The petitioner/father has also filed an application seeking permission to visit his minor child who is in the custody of the mother/the estranged wife/the opposite party. Against such application filed by the husband/petitioner, the opposite party/wife/mother of the child filed an application challenging the jurisdiction of the Fast Track Court to hear the matter on the ground that in view of provision of section, 4A of the Guardians and Wards Act, 1890 the Fast Track Court being a subordinate Court to a District Court and not being empowered by the Hon'ble High Court to hear matter under the Guardians and Wards Act, 1890 has no power to try the matter and thereby alleged the impugned order too suffers from illegality.
3. Let see, whether, the Additional District Judge, Fast Track Court is sub ordinate to a District Court and has no authority to hear any matter under the Guardians and Wards Act, 1890?
4. It is admitted position of law that Hon'ble High Court at Calcutta has not issued any general or special order empowering any officer subordinate to the District Judge to hear and dispose of any proceeding under Guardians and Wards Act, 1890. Section 4-A of the Act, provides that it is the District Judge who has the original power to hear the matter under the said Act until and unless the High Court by any general or special order empowers any officer exercising original civil jurisdiction subordinate to a District Court to dispose of any proceeding under the said Act. The District Judge may by order in writing may transfer any case under the Guardians and Wards Act, 1890 at any stage of the proceeding pending before it for disposal to any officer subordinate to the District Court, empowered by the high Court under sub Section 1 of Section 4 A.
5. The learned Advocate for the opposite party has referred to Shirshna Nath Mallick Vs. Arun Kumar Sarkhel, reported in AIR 2010 Calcutta 26, where a question has arisen whether Additional District Judge is competent authority to hear and dispose of matter under Guardians and Wards Act, 1890 or not.
6. The Honfale Co-ordinated Bench of this Honfale High Court after taking into consideration Section 24 of the Civil Procedure Code, Section 8(2) of Bengal, Agra, Assam Civil Courts Act, had held that Additional District Judge who discharges identical judicial functions like that of a District Judge in the District and in discharge of judicial functions Additional District Judges are not subordinate to District Judge and competent to consider and hear the matter under the said Act. However, it has also been held that Additional District Judges cannot independently receive presentation of any such application, as no territorial jurisdiction is conferred upon them individually over which they can exercise their independent jurisdiction. Additional District Judge can only discharge only those functions which are assigned to them by District Judge under Section 8(2) of Bengal, Agra and Assam Civil Court Act or under Section 24 of the Civil Procedure Code. Jurisdiction to entertain application under the Act of 1890 has exclusively been vested upon District Judge being Princi
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