Protecting the Minor’s Share: A Modern Judicial Guide to Assessing "Evident Advantage" under Section 8 of the HMGA

 

In family law and property jurisprudence, one of the most sensitive responsibilities of the court is exercising parens patriae jurisdiction over a minor's property. When dealing with applications under Section 8 of the Hindu Minority and Guardianship Act, 1956 (HMGA) to alienate a minor's estate, courts face a complex balancing act. The judiciary must safeguard the minor's future without unnecessarily obstructing economically beneficial family transactions.

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Procedure for Registering and Executing an Arbitration Attachment Warrant in District Court

 When an attachment warrant issued by an arbitrator is received at a District Court, the court must follow specific procedures to register and execute it. This process is governed by the Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure, 1908 (CPC). This article outlines the steps involved in handling arbitration attachment warrants and provides insights into relevant case laws.

Under Section 36 of the Arbitration and Conciliation Act, 1996, an arbitral award is treated as a decree of the court. However, arbitral tribunals cannot enforce their orders directly. To enforce an attachment warrant issued by an arbitrator, it must first be registered with the District Court and executed as per CPC procedures.

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Kerala HC: Under S.14 Disabilities Act, District Court And Designated Authority Have Concurrent Jurisdiction To Grant Limited Guardianship

The learned Government Pleader, Smt. K.B Sony, as well as the Central Government Counsel, Sri. Girish Kumar submits that, as per Section 14 (1) of the Act, the District Court or the designated authority has concurrent jurisdiction when entertaining a petition. The party is given the option of either the jurisdiction of the District Court or the designated authority. Therefore, the legislature, in its wisdom, had drafted the section to give concurrent jurisdiction to the District Court as well as the designated authority. {Para 11}

12. A combined reading of Section 14 (1) coupled with Rules 4, 7 and 8 of the Kerala Rules, it is amply clear that the District Court or the designated authority notified by the State Government has concurrent jurisdiction to entertain a petition or appointment of a limited guardian of person who is coming under the definition of 'person with disability' under Section 2(s) of the Act.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO No. 32 of 2023

Decided On: 20.10.2023

Abootty K.A. Vs. Kolangottil Pathumma and Ors.

Hon'ble Judges/Coram:

Basant Balaji, J.

Citation: 2023:KER:69216, MANU/KE/3830/2023.

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Kerala HC: Parliament In Its Wisdom Permits Only Limited Not Permanent Guardianship For Mentally Disabled Person Under PwD Act

A co-joint reading of the above-extracted

provisions substantiates that the District Court or the

designated Authority are empowered to appoint a

limited guardian for a person who is suffering from a

disability as defined under Section 2(s) of the

Disabilities Act, which includes mental disability. {Para 9}

10. It is as per the provisions of the

Disabilities Act that the designated authority had

passed Exts.P14 and P15 orders.

11. On an analysis of the scheme of the

Disabilities Act, a person can only be appointed as a

limited guardian because the office of guardianship

operates on a mutual understanding and trust between

the guardian and the person with a disability for a

specific purpose or situation or to take a particular

decision in accordance to the will of the person with a

disability. Presumably, it is in the above context that the

Parliament, in its wisdom, has only permitted limited

guardianship and not permanent guardianship.

Therefore, the concept of permanent guardianship is

alien to the Disabilities Act. Similarly, there is no

provision under the National Trust Act to appoint a

guardian for a person with mental illness. (Read the

decision of this Court in Latha T.B @ Latha Ravi and

others v. Union of India [2021(3) KHC 304].

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO.25127 OF 2024

BINDUMOL A T  Vs  UNION OF INDIA

PRESENT

 MR.JUSTICE C.S.DIAS

 8TH DAY OF JANUARY 2025.

Citation: 2025:KER:1151

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Whether District Judge has power to pass judicial orders directing subordinate courts to dispose of matters expeditiously?

In this context, it is relevant to note that the enactment

of the Civil Courts Act is generally intended to deal with the

functioning of the subordinate courts and the general control over all the civil courts given to the District Judge within the District, is confined in matters of administration and not strictly on judicial side to pass orders of the nature impugned. To put it

differently, it has to be held that by invoking the power under

Section 17 of the Kerala Civil Courts Act, the District Judge has

no power to pass judicial orders of the nature impugned or any

other orders dehors the provisions of the substantive and

procedural law governing the field and the power of general

control is confined only in matters of administration. Therefore,

the order impugned is liable to be set aside. {Para 6}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR. JUSTICE A. BADHARUDEEN

OP(C) NO. 375 OF 2022

SOBHANA Vs  B.PREMNATH (E) SARATH M.S

Dated this the 6th day of April, 2022

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Whether order passed in application for succession certificate can be challenged before district court or high court?

  In view of this position, the Civil Judge, Senior Division in these two Appeals have exercised the jurisdiction under Sub-section 1 of Section 388 of the said Act of 1925. In view of the proviso to Sub-section 2 of Section 388, the Appeals under Section 384 of the said Act of 1925 against the order of the learned Civil Judge, Senior Division will therefore lie to the District Judge and not to this Court. By virtue of the proviso to Sub-section 2 of Section 388 of the said Act of 1925 in case of all appealable orders passed on Application for succession certificate by the courts referred to Sub-section 1 of Section 388, the Appeal will lie to the District Judge irrespective of the value of the subject matter of the Application for grant of succession certificate. The reason being that the forum of Appeal is created by the proviso to Sub-section 2 of Section 388 of the said Act of 1925 and not by the provisions of said Act of 1869.{Para 9}

12. In my considered view, Appeals against the impugned judgments and orders will lie to the District Judge irrespective of value of subject matter of Application for succession certificate.

Bombay High Court

Shri Vitthal Ramchandra Mali vs Smt. Laxmi Ganpati Mali And Anr. on 6 June, 2006

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Whether High court can entertain petition for appointment of guardian of person of the minor in its original jurisdiction at Mumbai?

  The judgment of the Full Bench leaves no room for doubt that the High Court must be considered as a District Court for the purposes of the Family Courts Act and since the Family Courts have been established in the city of Mumbai, a Guardianship Petition for the custody or access to any minor would lie in the Family Court. The Guardians and Wards Act was enacted in 1890 and the High Court exercising its Ordinary Original Civil Jurisdiction is considered a District Court under that Act. The High Court's jurisdiction has been ousted in the light of the provisions of the Family Court Act in case of guardianship proceedings instituted by a relative of a minor for guardianship of the minor's person. Such a proceeding clearly falls within the purview of Section 7 of the Family Courts Act. Therefore, only the Family Court would have jurisdiction in view of the provisions of Section 20, By virtue of Section 20, the Family Courts Act has an overriding effect over any other law. However, the High Court will continue to exercise its Ordinary Original Civil Jurisdiction in respect of petitions relating to the guardianship of the property of a minor.{11}

12. In my opinion, therefore, a Guardianship Petition seeking guardianship of the person of a minor filed by either the parents or any relative of a minor would lie before the Family Court, irrespective of whether there is a matrimonial dispute pending before that Court. The Petition in the instant case, therefore, is not maintainable before this Court exercising its Ordinary Original Civil Jurisdiction and is accordingly, returned to the petitioner for presenting the same before the appropriate Court.

Bombay High Court

Girish J. Bobade vs Ajay Thakur And Ors. on 22 December, 2005

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Whether departmental enquiry can be initiated against court staff for not calling record?

 Even if it is assumed that he did not Call R&P, still it is not material defect or dereliction of duty which can attract a departmental enquiry. The resultant destruction of 'C' file is the main cause and the Disciplinary Authority failed to consider that, mere act of not calling the R&P cannot be the cause for destruction of 'C' file. It is rightly argued that, the record keeper and the staff from the Record Office did not follow the provisions of law as per 544 (1) (2) of Civil Manual before destruction of 'C' file. They were really guilty for destruction of 'C' file before time. They have been spared and only because the R&P was not called, the petitioner was subjected to departmental enquiry. As per para 544(2), the period of 12 years for destruction of 'C' file is to be calculated from the date of final decree or order. Even if any application for setting aside ex-parte decree or restoration of suit is pending, the time has to be calculated from the final order in such application.

11. In the present case, the appeal was decided on 21.04.1995 and thereafter application for restoration of appeal was also filed. The same was decided on 01.07.1998 and the appeal was restored, still the record was destroyed on 07.10.1998. It was clearly contrary to the provisions of Para 544 of Civil Manual. It was duty of the Record Keeper to verify whether any appeal or any proceeding is pending or not in respect of the suit, which was not complied.

12. The observations of the District Judge that though Record Keeper should have maintained file for 12 years from the date of the order of the appellate court but the said fact alone would not exonerate the present delinquents is not the correct approach. If the 'C' file would not have been destroyed, there was no occasion for holding departmental enquiry. Mere failure or delay to comply the order of calling R&P cannot be a subject matter of departmental enquiry.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 5094 of 2002

Decided On: 30.01.2019

 Hanumant  Vs.  The Disciplinary Authority and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and A.M. Dhavale, JJ.

Citation: 2019(3) MHLJ 320

A.M. Dhavale, J.

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When party can challenge order passed by district court before high court by revision as well as by writ petition?

34. We, therefore, answer the reference as under:

(I) The view taken by the learned Single Judge in the Case of Dilip Bidesh & Ors. vs. Shivgopal Madangopal Chaurasia & Ors. that revision under Section 115 of the Code would not be tenable against the order under Section 26-A of the said Act does not lay down the correction position of law.

(II) The view taken by the learned Single Judge in the case of Dhuliabai Mana Praga and Ors. vs. Manikbai Vithalrao Bhusarath (Deceased), to the extent that revision under Section 115 of the Code is tenable against an order passed under the analogous provisions, is correct. However, the view that the writ petition would not be tenable under Article 227 of the Constitution of India against such an order, in our view, does not lay down correct position of law.

(III) In our considered view, a party aggrieved by the order passed under Section 26-A of the Provincial small cause courtsAct by the District Court would be at liberty to choose to file either Civil Revision Application under Section 115 of the Code or a petition under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 5552 and 3431/2013

Decided On: 07.12.2016

 Gajanan and Ors. Vs.  Mohd. Jamil Mohd. Amad and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and V.M. Deshpande, JJ.

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Whether district court can be exempted to provide information in RTI if said information relates to confidentiality of any examination or selection process conducted by office of District Judge for appointment of ministerial staff?

 During the hearing, the Respondent submitted that they have the record but
claimed that as per Rule 7(iii) of Delhi District Courts (Right to Information) Rules,
2008, PIO may not provide the information to the applicant if the information relates
to the confidentiality of any examination or selection process conducted by the
office of the District Judge for the appointment of ministerial staff. He also added
that nearly 62,000 candidates appeared for the exam and it will pose huge burden
on them if copies were provided to each and every candidate.
In the present case the exemption taken by the PIO for denying the
information sought by the appellant is Rule 7 (iii) of Delhi District Courts (Right to
Information) Rules, 2008 which states as under :
 Exemption from disclosure of information: The Public Information Officer or
the Assistant Public Information Officer may not provide the information to the
applicant on the following grounds:…. (iii) The information relates to the
confidentiality of any examination or selection process conducted by the office of
the District Judge for the appointment of ministerial staff.
5. The Commission had in CIC/SG/A/2010/002021/9247 and in
CIC/SG/A/2010/003545/1147 with regard to Validity of exemptions contained in
District Court Rules visàvis
RTI Act had observed as follows:
“Sections 8 and 9 of the RTI Act lay down the grounds on the basis of which
information may be denied by the PIO. The District Court Rules have been made
by the High Court of Delhi (the “Delhi HC”) in exercise of its powers under
Section 28(1) of the RTI Act and notified in the New Delhi Gazette on May 6,
2009. Rules framed by a competent authority under Section 28(1) of the RTI Act
cannot go beyond the exemptions provided in Section 8 and 9 of the RTI Act. The
Supreme Court of India as well as various High Courts have categorically held
that subordinate legislations or rules cannot go beyond the letter of the delegating
legislation.
In Addl. District Magistrate (Rev.) Delhi Admn. v Shri Siri Ram AIR 2000 SC
2143, the Supreme Court of India held:
“It is well recognized principle of interpretation of a statute that conferment of rule
making power by an Act does not enable the rule making authority to make rule
which travels beyond the scope of the enabling Act or which is inconsistent
therewith or repugnant thereto.”
The RTI Act was enacted with the spirit of ensuring transparency and access to
information giving citizens the right to information. Hence, as observed by the Delhi

HC in CPIO, Supreme Court of India v. S.C. Agarwal WP (C) No. 188/2009, the
RTI Act is premised on disclosure being the norm, and refusal, the exception.
According to the RTI Act, information may be exempted from disclosure in
accordance with Section 8 and 9 only and no other exemptions can be claimed
while rejecting a demand for disclosure.
The Delhi HC in Bhagat Singh v. CIC WP(C) No. 3114/2007 has held that
exemptions in the RTI should be strictly construed. It explained:
“Access to information, under Section 3 of the Act, is the rule and exemptions
under Section 8, the exception. Section 8 being a restriction on this fundamental
right, must therefore is to be strictly construed. It should not be interpreted in
manner as to shadow the very right itself.”
6. Hon’ble Information Commissioner Shri Shailesh Gandhi in
CIC/SG/A/2010/003545/11147 while dealing with Rule 7 made under Delhi District
Court Rules, 2008 had observed that:
“It must be noted that no public body is permitted under the RTI Act to take upon
itself the role of the legislature and import new exemptions hitherto not provided.
The District Court Rules made by the competent authority under the RTI Act
appears to bring in exemptions not provided for in the RTI Act and transgress the
exemptions envisaged by the Parliament under Sections 8 and 9 of the RTI Act.
Since the right to information is a fundamental right of the citizens, any move
which constricts it should be avoided. Even Parliament is very wary of the
restrictions it can place on the fundamental right of the citizen and hence

competent authorities would be well advised to ensure that they do not create any
exemptions which the lawmakers did not provide.”
CENTRAL INFORMATION COMMISSION

CIC/AD/A/2013/001720SA
Appellant : Vipin Kumar
Respondent : Tis Hazari Court

Date of decision : 22.8.2014
Information Commissioner : Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)

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Whether magistrate should pass order for custody of child if said dispute is pending before district court?

In the case at hand, the admitted fact is that respondent No.1 is
still the wife of the petitioner since she has not been divorced by her
husband. Though the complainant/ respondent No. 1 has filed separate
cases for maintenance under Section 125 CrPCand for her torture under
Section 498(A) IPC the reliefs claimed in the application under Section
12 of the PWDV Act do not cover the reliefs prayed for in other cases.
In fact, vide order dated 17.5.2008, the learned Magistrate has only
ordered returned of „stridhan‟ as well as handing over the custody of
the minor child to the complainant and these reliefs cannot be granted

by the Judicial Magistrate , either in Section 125 Cr.P.Cor u/s 498(A)
of the IPC. However, if the application for custody of the child is
pending for consideration before the learned District Judge, it would be
just and proper for the learned Magistrate to refrain himself from
pursuing implementation of his order with regard to the custody of the
minor child. It is also necessary to avoid passing of conflicting orders
by two different courts, having parallel jurisdiction. Though the
Judicial Magistrate is competent to pass custody order of any child or
children u/s 21, Section 26 makes it clear that the same relief can also
be sought for in other legal proceeding before a Civil Court etc. Since,
the husband/respondent has approached the Court of District Judge,
seeking custody of their minor daughter, propriety demands that
superior court should be allowed to take a decision in the matter,
unless, the superior court i.e. the District Judge directs the respondent
to contest the issue before the Magistrate.

With the aforesaid clarification of the order of the Judicial
Magistrate regarding custody order, the Criminal Petition stands
dismissed.
IN THE GAUHATI HIGH COURT

CRIMINAL PETITION No. 434 of 10
Md. Abdul Haque,

-Versus-
SrimatiJesmina Begum Choudhury,

HON’BLE MR. JUSTICE B. D. AGARWAL

Date of judgment

25.04.2012
Citation: I(2013)DMC384, 2012(4)GLT668, 2013(3)RCR(Civil)551, 2013(3)RCR(Criminal)530, 2014(2) crimes 487 Gau

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