(BY SMT. T.S. RAJARAJESHWARI, ADVOCATE) v. NIL

(BY SMT. T.S. RAJARAJESHWARI, ADVOCATE) …APPELLANTS AND: NIL …RESPONDENT THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT AGAINST THE JUDGMENT AND DECREE DATED 13.10.2023 PASSED IN OS.NO.31/2023 ON THE FILE OF THE C/C PRL. JUDGE, FAMILY COURT, TUMAKURU, DISMISSING THE SUIT OF THE PLAINTIFFS AS NOT MAINTANABLE AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 2 - NC: 2025:KHC:2131-DB MFA No. 8833/2023 CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL HON'BLE MR JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) Challenging the dismissal of their suit for declaration, the plaintiffs in O.S. No.31/2023 on the file of Principal Judge, Family Court, Tumakuru have preferred this appeal.

2. Case of the Appellants/Plaintiffs in brief is as follows: First plaintiff and second plaintiff are Hindus. That the 1st plaintiff was married to one Smt. Atma Vidya Kotlo on

26.04.2012 at Hyderabad and the said couple have two children by name Hrithika Reddy Palle and Tanaya Reddy aged about 7 and 9 years respectively. Smt. Atma Vidya died on

03.04.2022. Similarly, second plaintiff was married to one Sri. Ashwatha Reddy on 20.09.2007 at Dharmasthala and the said couple had daughter by name Kruthika Reddy B.A. born on

27.04.2012. Ashwatha Reddy died on 10.05.2016. After the death of their spouses, plaintiffs married on 11.06.2023 at Tumakuru as per the Hindu rights and rituals. After the marriage, Kruthika Reddy B.A. the daughter of 2nd plaintiff is - 3 - NC: 2025:KHC:2131-DB MFA No. 8833/2023 now in the care and custody of both the plaintiffs. Plaintiff No.1 is working in Qatar as Technical Architect in Qatar Airways. He intends to take the 2nd plaintiff and her daughter Kruthika Reddy B.A. to Qatar. When he applied for Visa for Kruthika Reddy B.A., the immigration authority insisted that the plaintiff shall produce the legal custodian/guardianship documents issued by the Courts in India. Therefore, they are seeking declaration that they are the joint custodians of Kruthika Reddy B.A., the biological daughter of the 2nd plaintiff.

3. The Trial Court by the impugned order held that the parties being Hindus, are governed by the Guardian and Wards Act, 18901 and Hindu Minority and Guardianship Act, 19562. If they want their appointment as joint guardians/custodians, they have to proceed under the said law and the suit filed by the plaintiffs in the present form is not maintainable and dismissed the suit.

4. Learned counsel for the appellants before this Court produced the copy of the e-mail said to be sent by the employer of the 1st appellant to him and the judgment of the 1 For short ‘ Act, 1890’ 2 For short ‘Act, 1956’ - 4 - NC: 2025:KHC:2131-DB MFA No. 8833/2023 High Court of Punjab and Haryana at Chandigarh in case of Mohit Vs. Union of India and Others3. She further submits that question of guardianship is independent of question of custody. To press that point, she relies on the following judgments:

1. Athar Hussain V. Syed Siraj Ahmed reported in (2010) 2 SCC 654.

2. Nil Ratan Kundu & Anr Vs. Abhijit Kundu reported in (2008) 9 SCC 413

5. The appellants had sought declaration in the form of suit presenting a plaint under Section 26 Order VII Rule 1 and 3 of Code of Civil Procedure, 19084. Section 9 of CPC which deals with jurisdiction of the Civil Court reads as follows: “9. Courts to try all civil suits unless barred The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. [Explanation I] – A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. 3 WP No.5862/2016( D.D 16.11.2016) 4 For short ‘ CPC’ - 5 - NC: 2025:KHC:2131-DB MFA No. 8833/2023 [Explanation II – For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]”

6. Reading of the above provision shows that if any law expressly or impliedly bars the Civil Court from taking cognizance, then the jurisdiction of the Civil Court cannot try such suits. In the present case, the appellants sought the following reliefs in the suit. a. declaring that the joint custody of Kruthika Reddy B A be with the first plaintiff and second plaintiff; b. consequently Grant such other or further reliefs as this Hon’ble Court deems fit to grant, in the circumstances of the case, including an order as to costs, in the interests of justice and equity.

7. Second plaintiff being the biological mother of minor child, in the absence of the father, is the natural guardian under Section 6 of the Act, 1956. Therefore, there is no need for her to seek declaration for guardianship or the custody of the child. Only declaration for appointment of guardianship was required for the 1st plaintiff. Section 7 of the Act, 1890 applies for appointment of 1st plaintiff as joint guardian or custodian of the child. Reading of Section 3 of the Act, 1890 shows that subject to other enactments, the Court under the said Act is competent - 6 - NC: 2025:KHC:2131-DB MFA No. 8833/2023 and has jurisdiction to pass order with regard to appointment of the guardian. Section 4 (2) of the Act, 1890 defines ‘guardian’ as a person having the care of the person of a minor or of his property, or of both. In this case, appellant No.1 sought to be declared as guardian along with appellant No.2 for Kruthika Reddy BA.

8. Guardian is defined in Section 4(2) of the Act, 1890, as a person having care of the person of a minor. Therefore, the trial Court was justified in opining that its jurisdiction to try any suit for declaration, in the way it was drafted, was barred in view of the specific provisions of Act, 1890. Section 4(5)(b) of Act, 1890 says that where a guardian has been appointed or declared in pursuance of any application made under the said Act, the ‘Court’ is the one which declared the guardian or deemed to have appointed or declared the guardian.

9. Reading of the judgments of the Hon’ble Supreme Court in the cases of Athar Hussain and Nil Ratan Kundu shows that those cases arise out of the petition filed before the Court under the Act, 1890 and not by way of suit for declaration. Similarly, reading of the judgment of the High - 7 - NC: 2025:KHC:2131-DB MFA No. 8833/2023 Court of Punjab and Haryana, in Mohit’s case shows that the said case arose out of writ proceedings and not a suit for declaration. It was held that there is no need to obtain an order from the Court for stepfather’s appointment as legal guardian of step child, until and unless such capacity of the stepfather is challenged by biological father. Those judgments cannot be justifiably applied to serve the contention of the appellants’ counsel that, Civil Court’s jurisdiction is not barred to grant such declaration.

10. Under the aforesaid reasons, this Court does not find any error in the order of the Trial Court. Reserving liberty to the appellants to pursue appropriate remedies in accordance with law, this appeal is disposed of. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (C.M. POONACHA) JUDGE BS List No.: 1 Sl No.: 29