Case Note & Summary
The appellant, Mohd. Azeemoddin, challenged the order dated 02.09.2016 passed by the learned Adhoc District Judge-3, Aurangabad, in M.A.R.J.I. No.160/2016, which appointed the respondent No.2 (the aunt) as guardian of the person and property of his minor twin children. The appellant is the natural father of the children and is facing a murder charge for the death of his wife (the aunt's sister). The aunt filed the guardianship application under Section 7 of the Guardian and Wards Act, 1890, alleging that the appellant had murdered his wife and thus was disqualified from inheritance under Mohammedan Law, and that he had an evil eye on the property. The trial court allowed the application ex parte, without impleading the appellant. The appellant contended that he was not made a party, that the District Court lacked jurisdiction because a Family Court exists at Aurangabad, and that he is presumed innocent until convicted. The High Court held that the natural father cannot be removed without hearing him, and that the Family Court has exclusive jurisdiction under the Family Courts Act, 1984. The court also noted that under Mohammedan Law, disqualification from inheritance arises only upon conviction, not on mere accusation. Consequently, the appeal was allowed, the impugned order was set aside, and the matter was remitted to the Family Court for fresh consideration after hearing all parties.
Headnote
A) Family Law - Guardianship - Natural Guardian - Right to be Heard - The father, being the natural guardian, cannot be removed from guardianship without affording him an opportunity of hearing, especially when he is not convicted of any offence. The order passed behind his back is violative of principles of natural justice. (Paras 4-6) B) Jurisdiction - Family Court - Exclusive Jurisdiction - Under Section 7 of the Family Courts Act, 1984, the Family Court has exclusive jurisdiction over matters relating to guardianship of minors. Since a Family Court is established at Aurangabad, the learned Adhoc District Judge-3 lacked jurisdiction to entertain the application under Section 11 of the Guardian and Wards Act, 1890. (Paras 4-6) C) Mohammedan Law - Inheritance - Disqualification - Murder - Under Mohammedan Law, a murderer is disqualified from inheritance only upon conviction. Mere pendency of a murder charge does not disqualify the father from being the natural guardian or from inheritance. (Paras 4-6)
Issue of Consideration
Whether the order appointing the aunt as guardian of minor children without impleading the natural father is sustainable, and whether the District Court had jurisdiction in view of the Family Court's establishment.
Final Decision
The appeal is allowed. The impugned judgment and order dated 02.09.2016 passed by the learned Adhoc District Judge-3, Aurangabad in M.A.R.J.I. No.160/2016 is set aside. The matter is remitted to the Family Court, Aurangabad for fresh consideration after hearing all parties. The parties are directed to appear before the Family Court on 16.09.2019.
Law Points
- Natural guardian cannot be removed without hearing
- Family Court has exclusive jurisdiction over guardianship matters under Family Courts Act
- 1984
- Murder charge without conviction does not disqualify father from guardianship under Mohammedan Law
