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Keshawanand Gupta Vs. Afroza Begum and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appln. No. 30 of 1957
Judge
Reported inAIR1958Raj221
ActsGuardians and Wards Act, 1890 - Sections 4(5), 9 and 25; Rajastan High Court Ordinance, 1949 - Sections 30
AppellantKeshawanand Gupta
RespondentAfroza Begum and anr.
Appellant Advocate C.L. Agarwal, Adv.
Respondent Advocate Gaffarali,; P.C. Jain and; Manzoor Alam, Advs.
Excerpt:
- .....of the minor, it shall be made to the district court having jurisdiction in, the place where the minor ordinarily resides. 6. section 25 gives power to the court to make an order for delivery of the minor into the custody of the guardian in case the ward leaves or is removed from the custody of the guardian, if such order will be for the welfare of the ward the jurisdiction under section 25 is in the court and the court is defined under section 4(5) as meaning the district court having jurisdiction to entertain an application under this act for an order appointing or declaring a person to be guardian. thus, reading sections 4(5), 9 and 25 together, it will be apparent that the jurisdiction under the act is in the district court, whether the application is under section 9 or section 25.....
Judgment:

K.N. Wanchoo, C.J.

1. This is an application by Keshawanand Gupta under Section 30 of the Rajasthan High Court Ordinance (No. 15 of 1949) (hereinafter called the Ordinance) praying that orders be passed directing the opposite parties to return the minor Vinodkumar alias Ismail to the custody of the applicant. It is not necessary for present purposes to set out the facts pleaded in the application. It is enough to say that the application is being opposed by the opposite parties and a preliminary point as to the jurisdiction of this Court to entertain this application has been raised. We are at present concerned with this preliminary point relating to jurisdiction.

2. The brief facts, which are necessary to determine this question, are these. The applicant, Keshawanand Gupta is a resident of Mirpur, Jammu Kashmir, but was residing at Lucknow in Uttar Pradesh when the present application was made by him. The opposite parties are said to be husband and wife and were, at the time the application was made, confined in the Central Jail at Jaipur.

They are Pakistan nationals, but were said to be visiting Jaipur when the application was made. The minor Vinod Kumar alias Ismail was with the opposite parties in Jaipur when the application was made. The applicant contends that as the minor was within the jurisdiction of this Court when the application wan made and is so even now, this Court has jurisdiction under Section 30 of the Ordinance to pass necessary orders in the matter.

It may be mentioned that the applicant had applied to the District Judge, Jaipur, under Section 25 of the Guardians and Wards Act (No. 8 of 1890), hereinafter called the Act, but withdrew that application as there was doubt about the jurisdiction of the District Judge.

3. Section 30 of the Ordinance is asfollows :

'The High Court shall have power and authority with respect to the persons and estates of infants, idiots and lunatics within the State, subject to the provisions of any law for the time being in force.'

4. The contention of the applicant is that the power of the High Court is not hampered by the restrictions contained in Sections 9 and 25 of the Act and it is open to the High Court to take action under Section 30 of the Ordinance if the minor is within this State. On the other hand, learned counsel for the opposite-parties contends that the power under Section 30 of the Ordinance is subject to the provisions of any law for the time being in force and, there-tore, the High Court has no wider power than that conferred on the Court under the Act. We have, therefore, to determine the scope of this Court's jurisdiction under Section 30 of the Ordinance and the precise meaning of the words 'subject to the provisions of any law for the time being in force', which appear in that section.

5. Section 9 of the Act provides for the Court which has jurisdiction to entertain an application under it. It lays down that if the application is with respect to the guardian of the person of the minor, it shall be made to the District Court having jurisdiction in, the place where the minor ordinarily resides.

6. Section 25 gives power to the Court to make an order for delivery of the minor into the Custody of the guardian in case the ward leaves or is removed from the custody of the guardian, if such order will be for the welfare of the ward The jurisdiction under Section 25 is in the Court and the Court is defined under Section 4(5) as meaning the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be guardian.

Thus, reading Sections 4(5), 9 and 25 together, it will be apparent that the jurisdiction under the Act is in the District Court, whether the application is under Section 9 or Section 25 and the minor must be ordinarily resident in a place over which the District Court has jurisdiction. The jurisdiction, therefore, of the Court under the Act is circumscribed by the condition that the minor must be ordinarily resident within the jurisdiction of the District Court concerned.

Where the minor is not ordinarily resident within the jurisdiction of the District Court concerned, the District Court will have no jurisdiction to proceed under the Act. There is no doubt in this case that the minor Vinod Kumar alias Ismail is not ordinarily resident within the jurisdiction of any District Court in India and therefore, no District Court in India would have jurisdiction to proceed either under Section 9 or under Section 25 of the Act, so far as this minor Vinod Kumar alias Ismail is concerned.

7. Now let us turn to the jurisdiction of the High Court under Section 30 of the Ordinance. Two points arise in this connection, both depending upon the interpretation of the words 'subject to the provisions of any law for the time being in force'. The applicant contends that these words lay down only one limitation, namely that if under the law for the time being in force, some other Court has jurisdiction to entertain an application for guardianship, the High Court would not have that power. The opposite parties, on the other hand, contend that these words not only restrict the power of the High Court under Section 30when there is another Court to which applications can be made under the Act, but also further restrict the power of the High Court to act under this section, if the minor does not ordinarily reside within the jurisdiction of the High Court, as provided in Section 9 of the Act. We have given the matter our earnest consideration and are of opinion that these words only imply one restriction, namely that if it is possible under any law for the time being in force to apply to any other Court in India for guardianship or custody of the minor, the jurisdiction of the High Court under Section 30 is ousted.

This, in our opinion, is clear from the use of these words in Section 30. The power under that section is 'subject to the provisions of any law for the time being in force' and if there is a law which provides that application for guardianship or custody of the person of a minor is to be made to a District Court having jurisdiction in the place where the minor ordinarily resides, the High Court's jurisdiction is naturally ousted in such a case; for then anyone applying for guardianship or custody of the person of the minor must apply to the District Court which has jurisdiction over the place where the minor ordinarily resides.

In short, all applications for guardianship or custody of the minor which can be made to a District Court under Section 9 or Section 25 of the Act must be made to the District Court and the High Court would have no jurisdiction to entertain such an application. But where no District Court in India can entertain an application under Section 9 or Section 25, the power resides in this High Court to entertain such an application under Section 30 if the minor is within the State of Rajasthan. The contention of the opposite parties that the High Court's jurisdiction under Section 30 of the Ordinance even in those cases where no District Court in India can entertain an application under Section 9 or Section 25 of the Act is conditional on the minor being ordinarily resident within the State of Rajasthan is in our opinion untenable. The restriction as to residence contained in Section 9 of the Act applies only to the District Court. It cannot by some kind of analogy be extended to the jurisdiction which the High Court has under Section 30 of the Ordinance. That jurisdiction has to be determined under the terms of Section 30 and that section does not lay down that the High Court will have power to entertain an application under it only if the minor is ordinarily resident within the State over which this Court exercises jurisdiction. The words used in Section 30 are 'that the High Court shall have power and authority with respect to minors within the State'. It is not possible to insert the words 'ordinarily resident' before the words ''within the State' appearing in Section 30. That would be adding something to the law which the law makers did not intend. All that Section 30 lays down is that the High Court shall have power and authority with respect to minors within the State. As soon as the minor is within the State of Rajasthan, this High Court has power and authority to proceed under Section 30 of theOrdinance provided no application under Section 9 or Section 25 of the Act can be made anywhere in India with respect to that minor. The words. 'subject to the provisions of any law for the time being in force' do not in our opinion import the restriction contained in Section 9 of the Act into Section 30 of the Ordinance. The restriction under Section 9 of the Act is only for the District Court and not for the High Court and, therefore, these words do not make the jurisdiction of the High Court under Section 30 of the Ordinance dependent upon whether the minor ordinarily resides within the State of Rajasthan. We are, therefore, of opinion that this Court has power under Section 30 of the Ordinance to entertain an application for guardianship or custody of a minor who is within the State of Rajasthan provided no application under Section 9(1) or Section 25 can be made with respect to the guardianship or custody of the minor anywhere in India. In this case, we have already said that it is not possible to make an application for guardianship of the person of this minor anywhere in India. In these circumstances, this Court has power to entertain an application under Section 30 with respect to guardianship of person or custody of the minor Vinod Kumar alias Ismail as he was within the State of Rajasthan when the application was made and is so still.

8. We, therefore, reject the preliminary objection raised on behalf of the opposite parties as to the jurisdiction of this Court under Section 30 of the Ordinance in this case.

9. The application will now be listed before a learned Single Judge of the Court under Rule 55 (v) of the Rules of this Court for healing on the merits.


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