The main legal point established in the judgment is that the nature and purpose of different sections of the Guardians and Wards Act, 1890 must be carefully considered, and the court cannot allow a conversion of a proceeding initiated under one section into a proceeding under another section if it would amount to reviewing a prior order not supported by the Act.

Sanjay Yadav, J.

1. Challenge put-forth in this petition under Article 227 of Constitution of India is to an order dated 18.10.2010 passed by the Family Court in case No. 2/2010, which is an application under Section 39 of the Guardians and Wards Act, 1890 (for short the Act of 1890); whereby, the Petitioner has sought the relief to remove Respondent Nos. 1 and 2 as guardian of baby Gauri.

2. During the pendency of said case Petitioner herein filed an application seeking amendment and proposed to amend the cause-title, pleadings as well as the prayer clause. The Trial Court after considering the application and the reply filed by Respondents herein, rejected the application on the ground that the same would lead to change the nature of application under Section 39 of the Act of 1890. Aggrieved whereof, the Petitioner has filed this petition on the ground that the trial court was not justified in dismissing the application for amendment.

3. In the proposed amendment the Petitioner intended to delete the cause-title by converting it into a petition under Section 7 of the Act of 1890. Furthermore, the Petitioner proposed to add new paragraph after existing paragraph 15; whereby, he intended to challenge the order dated 30.3.2009 passed by Family Court in Guardians and Wards Act Case No. 3/2009.

4. The Petitioner further intended to delete the entire prayer clause and substitute the same with the following:

It is, therefore, prayed that the order dated 30/3/2009, passed by the Learned Second Additional Judge of the Family Court, Jabalpur, passed in Guardian & Wards Act, Case No. 3/09 be set aside with cost on the ground that same was passed without jurisdiction and is a nullity for all purposes. For deciding this question, summary enquiry for recording the evidence of the parties may be allowed.

5. The application wherein proposed amendment is being sought is under Section 39 of the Act of 1890 filed by the Petitioner with a specific relief that Respondent Nos. 1 and 2 be removed as guardian of baby Gouri Pandey. They were appointed as guardian by order dated 30.3.2009 passed by II Additional Judge of the Family Court, Jabalpur in Guardians and Wards Case No. 3/2009.

6. As evident from the pleadings and documents on record Respondent Nos. 1 and 2 were appointed as guardian of Ku. Gouri Pandey. They are the paternal grand parent of the ward Ku. Gouri Pandey. The Petitioner herein is the maternal grand father of Ku. Gouri Pandey.

7. The question is whether the Petitioner can be allowed to convert a proceeding initiated under Section 39 into a proceedings under Section 7 of the Guardians and Wards Act, 1890 and whether the order passed by the trial court suffers from any jurisdictional error.

8. The controversy can be appreciated on the anvil of the scope of Section 7 and Section 39 of the Act of 1890.

9. Section 7 provides for:

7. Power of the Court to make orders as to guardianship.-

(1) Where the Court is satisfied that it is for the' welfare of a minor that an order should be made-

(a) Appointing a guardian of his person or property or both, or

(b) declaring a person to be such a guardian the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declare by the Court, an order under this section appointing or declaring another person to be guardian in his stand shall not be made until the powers of the guardian appointed or declare as aforesaid have ceased under the provision of this Act

Section 39 stipulates:

39. Removal of guardian.- The court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely:

(a) for abuse of his trust;

(b) for continued failure t