IMPORTANT POINT
Section 7(1) clause (a) to (f) of Family Courts Act, 1984 can be said to be in respect of the disputes between parties to the marriage. However, clause (g) to explanation of Section 7(1) provides that the Family Court would have jurisdiction to decide a suit or proceeding in relation to the guardianship or the custody or access to any minor. It does not speak about the dispute between the husband and wife only.

M.R. SHAH, J.

1. ADMIT. Mr. Vaibhav Vyas, learned advocate waives service of notice of admission on behalf of the respondent – original defendant.

2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, and as the issue involved in the present appeal is in a very narrow compass and it does not require any further evidence and/or record and proceedings, present appeal is taken up for final hearing today.

2.1. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Family Court, Ahmedabad below Ex.1 in Civil Miscellaneous Application No.1 of 2016, by which the learned Family Court, in exercise of the powers under Order 7 Rule 11 of the Code of Civil Procedure, has returned the plaint/application submitted by the appellants herein - grand-father and grand-other of their grand daughter who is minor aged about 4 years, for custody of minor grand daughter Dhairya and for their visitation rights, on the ground that the learned Family Court has no jurisdiction and hence the learned Family Court returned the plaint to present it before the appropriate court/forum.

3. Facts leading to the present First Appeal in nutshell are as under :-

3.1. That the appellants herein – grand-father and grand-mother of minor Dhairya aged 4 years submitted an application before the learned Family Court, Ahmedabad for grant of custody of minor Dhairya and for visitation rights, under the Guardian and Wards Act, 1890, under sections 8, 10 and 17 of the Hindu Minority and Guardianship Act. 1956.

3.2. That by the impugned order and at preliminary stage itself, by the impugned order the learned trial court has returned the plaint to present it before appropriate court / forum, in exercise of the powers under Order 7 Rule 11 of the Code of Civil Procedure on the ground that the learned Family Court has no jurisdiction, as the case would not fall in any of the provisions of section 7 of the Family Court, 1984.

3.3. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Family Court, Ahmedabad returning the plaint on the ground that the Family Court would not have any jurisdiction to entertains such an application, original petitioners have preferred the present First Appeal.

4. Mr. Ishant Patel, learned advocate appearing on behalf of the appellants has vehemently submitted that while passing the impugned order the learned trial court has not properly appreciated and considered the provisions of section 7 of the Family Courts Act. It is submitted that the learned family Court has not at all considered explanation to sub-section (1) of section 7 of the Family Courts Act.

4.1. Mr. Ishant Patel, learned advocate appearing on behalf of the appellants has further submitted that as per explanation (g) to sub-section (1) of section 7, a suit or proceedings in relation to the guardianship of the person or the custody of, or access to any minor would be maintainable before the Family Court and the Family Court would have jurisdiction to entertain the suit and/or any proceedings in relation to the guardianship of the person or the custody of, or access to any minor. It is submitted that clause (g) to the explanation attached to sub-section (1) of section 7 is not restricted to the dispute with respect to the custody or the visitation rights of a minor between the husband and wife (father and mother of the minor). It is submitted that even the Family Court would have jurisdiction to consider the issue in relation to the guardianship of the person or the custody of, or access to any minor, if initiated by any related persons including grand-father and grand-mother. It is submitted that therefore, the learned Family Court has materially erred in returning the plaint preferred by the appellants for custody of the Minor Dhairya and for their visitation rights to meet minor Dhairya.

4.2. Mr. Ishant Patel, learned advocate appearing on behalf of