Chattisgarh High Court
Priti Shrivastava vs Vinay Kumar Shrivastav on 15 April, 2026
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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{FA(MAT) No.314/2023}
Digitally
2026:CGHC:17054-DB
signed by
SISTA AFR
SISTA SOMAYAJULU
SOMAYAJULU Date:
2026.04.15
17:26:49 HIGH COURT OF CHHATTISGARH AT BILASPUR
+0530
FA(MAT) No. 314 of 2023
{Arising out of order dated 31-10-2023 in Civil MJC No.7/2022 of the
Judge, Family Court, Manendragarh/Camp Baikunthpur, District Koria}
Judgment reserved on: 24-3-2026
Judgment delivered on: 15-4-2026
Judgment (Full) uploaded on: 15-4-2026
1. Priti Shrivastava, D/o Vinay Kumar Shrivastava, Aged about 26
years, R/o Mahalpara, PS and Tahsil Baikunthpur, District Koria,
Chhattisgarh.
2. Anupama Singh, W/o Vinay Kumar Shrivastava, Aged about 53
years, R/o PS and Tahsil Baikunthpur, District Koria, Chhattisgarh.
(Applicants)
... Appellants
versus
Vinay Kumar Shrivastava, S/o Badrilal, Aged about 60 years, R/o
10/1685, Sector-1, Shivanagar, Khamtarai-2, Raipur, Chhattisgarh.
(Non-Applicant)
... Respondent
For Appellants : Mr. Tarendra Kumar Jha, Advocate.
For Respondent : Mr. Chandresh Shrivastava, Advocate.
Amicus Curiae : Mr. Manoj Paranjpe, Senior Advocate with Mr. Kabeer
Kalwani, Advocate.
Amicus Curiae : Mr. Rahul Tamaskar, Advocate.
Division Bench: -
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sachin Singh Rajput, JJ.
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C.A.V. Judgment
Sanjay K. Agrawal, J.
For sake of exposition, this Order is divided in following parts:-
S.No. Particulars Page Nos. 1. Challenge in the Appeal 2 2. Question of Law Involved 3 3. Quintessential Facts 3 4. Submission of the Appellants 4 5. Submission of the Respondent 5 6. Submissions of the Amicus 6 7. Legislative History qua Law of Guardianship 7 8. The Guardians and Wards Act, 1890 7 9. The Code of Civil Procedure, 1908 8 10. The Hindu Minority and Guardianship Act, 1956 9 11. The Family Courts Act, 1984 10 12. The National Trust for Welfare of Persons with Autism, 12
Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999
13. Prior General law and Later Particular law 14
14. Generalia specialibus non derogant 15
15. Lex posterior derogate priori 18
15. Discussion and Analysis 19
16. Conclusion 20
Challenge in the Appeal
1. The appellants herein seek to challenge the impugned order dated
31-10-2023 passed by the Judge, Family Court, Manendragarh/
Camp Court Baikunthpur, District Koria in Civil MJC No.7/2022, by
which their application filed under Section 14(1) of the National
Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
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Retardation and Multiple Disabilities Act, 1999 (for short, ‘the Act of
1999’), has been rejected holding that the Family Court has no
jurisdiction to entertain the application for appointment of guardian
to the person with disability i.e. appellant No.1 herein.
Question of Law Involved
2. The short question of law that is involved in the appeal is, whether
for the custody/guardianship of a person with disability, the Family
Court would have the jurisdiction to entertain the application under
Section 7(1) read with Explanation (g) of the Family Courts Act, 1984
(for short, ‘the Act of 1984’) or application would lie before the
appropriate Committee under Section 14(1) of the Act of 1999?
Quintessential Facts
3. Marriage between appellant No.2 herein and the respondent herein
was solemnized on 15-12-2012. Appellant No.1 herein is a person
with disability. She is the biological daughter of the respondent
herein and appellant No.2 herein is her stepmother. Appellant No.1
is major and she is the person with disability within the meaning of
Section 2(j) of the Act of 1999, as she is suffering from mental
retardation. Pursuant to the matrimonial discard between appellant
No.2 and the respondent, appellant No.2 got herself transferred from
Raipur to Baikunthpur and started living with her mother and sister.
It is the case of appellant No.2 that on 28-10-2022/29-10-2022, the
respondent came to her house at Baikunthpur and started
quarrelling with her mother and sister and unsuccessfully attempted
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to take appellant No.1 with him, but with the police intervention, it
could not be done by the respondent herein leading to fling of
application for guardianship before the Family Court,
Manendragarh, District Koria to appoint appellant No.2 as guardian
of appellant No.1 under Section 14(1) of the Act of 1999 in which the
respondent filed application under Order 7 Rule 11 of the CPC that
the Family Court has no jurisdiction to entertain the application and
the appropriate Committee constituted under Section 14(1) of the Act
of 1999 would have the jurisdiction to entertain that application, if
any. The Family Court by its impugned order rejected the
application holding that the appropriate Committee under Section
14(1) of the Act of 1999 would have the jurisdiction to entertain the
application and the Family Court has no jurisdiction to entertain the
application, by granting the application under Order 7 Rule 11(d) of
the CPC, and consequently, rejected the application under Section
14(1) of the Act of 1999 filed by the appellants leading to filing of
appeal under Section 19(1) of the Act of 1984 questioning the order of
the Family Court rejecting their application under Section 14(1) of
the Act of 1999.
Submission of the Appellants
4. Mr. Tarendra Kumar Jha, learned counsel appearing on behalf of the
appellants, would submit that the Family Court is absolutely
unjustified in rejecting the application by recording a finding which
is perverse to the record and would make further submission that the
date on which the application for appointment of guardianship was
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filed before the Family Court, Committee under Section 14(1) of the
Act of 1999 was not constituted and functioning and, therefore, the
appellants have no option except to file application before the Family
Court and even otherwise, the Act of 1999 does not expressly debar
the Family Court to entertain the application for appointment of
guardianship of a person with disability. He would also submit that
since it is the family dispute, the Family Court would undoubtedly
have the jurisdiction to entertain the application for appointment of
guardian of person with disability. Therefore, the order impugned is
liable to be set aside and the matter be restored to the file of the
Family Court for hearing and disposal in accordance with law.
Submission of the Respondent
5. Mr. Chandresh Shrivastava, learned counsel appearing on behalf of
the respondent, would submit that the Family Court is absolutely
justified in rejecting the application as upon coming into force of the
Act of 1999 with effect from 30-12-1999 and after constitution of
local level committees under Section 13 of the Act of 1999 being a
special Act, the Family Court would have no jurisdiction to entertain
the application for appointment of guardian to person with disability,
as the Family Court has never been conferred with the jurisdiction
for appointment of guardianship to person with disability, therefore,
the Family Court is absolutely justified in rejecting the application.
He would further submit that the Act of 1999 and the Rules and
Regulations made thereunder are a Special Act and self-contained
code which specifically prescribe for the entire procedure for
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appointment of guardian to a person with disability, as Section 7 of
the Act of 1984 only gives jurisdiction with regard to guardianship of
the person or the custody of, or access to any minor and neither gives
authority for appointment of guardian for property of minor nor
regarding guardianship of any major person suffering from any
disability. As such, the appeal deserves to be dismissed.
Submissions of the Amicus
6. Mr. Manoj Paranjpe, learned Senior Counsel appearing as amicus,
would submit that upon constitution of the Act of 1999 with effect
from 30-12-1999 and after constituting local level committees under
Section 13(1) of the Act of 1999, the Family Court would have no
jurisdiction, as the power conferred for appointment of guardianship
to person with disability has even not been expressly conferred to the
Family Court. He would rely upon the decision of the Madras High
Court in the matter of G. Nityanandam v. D. Saritha and
another1 to buttress his submission.
7. Mr. Rahul Tamaskar, learned counsel appearing as amicus, would
submit that the Act of 1999 is a special law and the CPC providing for
appointment of guardian to person with disability is a general law,
therefore, once the special law i.e. the Act of 1999 is enacted, it will
prevail over the general law i.e. the CPC based on the principle of
maxim ‘generalia specialibus non derogant’. He would rely upon
the decisions of the Supreme Court in the matters of Gujarat State
Cooperative Land Development Bank Ltd. v. P.R. Mankad
1 2013 (2) MWN (Civil) 817
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{FA(MAT) No.314/2023}
and others2 and Life Insurance Corporation of India v. D.J.
Bahadur and others3 to contend that when there is a conflict
between a special and a general statute, the special law will prevail.
8. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also gone through the
record with utmost circumspection.
Legislative History qua Law of Guardianship
9. Pre 1890, Guardianship was largely governed by personal laws and
customs.
The Guardians and Wards Act, 1890
10. The first consolidated codified law with respect to guardian and ward
was enacted with effect from 1-7-1890 named and styled as the
Guardians and Wards Act, 1890 (for short, ‘the Act of 1890’), where
‘guardian’ was defined under Section 4(2) as a person having the care
of the person of a minor or of his property or of both his person and
property. Section 9(1) confers jurisdiction to the District Court if the
application is with respect to guardianship of the person of the minor
and Section 9(2) conferred jurisdiction to the District Court if the
application is with respect to the guardianship of the property of the
minor. “District Court”, as defined under Section 4(4), has the
meaning assigned to that expression in the Code of Civil Procedure,
1882 (now the Code of Civil Procedure, 1908) and includes a High
Court in the exercise of its ordinary original civil jurisdiction. As
2 (1979) 3 SCC 123
3 (1981) 1 SCC 315
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such, Section 9 of the Act of 1890 confers power upon the ‘District
Court’ as defined under the Code of Civil Procedure, 1882 both to
entertain application for guardianship of minor or his property or
both. The Act of 1890 had no specific provision for guardianship of
person or property of person with disability.
The Code of Civil Procedure, 1908
11. The Code of Civil Procedure, 1908 (for short, ‘the CPC‘) was
introduced with effect from 1-1-1909. Order XXXIIA Rule 1(2)(c)
was inserted with effect from 1-2-1977. It contained provisions for
guardianship of the person or the custody of any minor or other
member of the family, under a disability. It did make specific
provision regarding guardianship of property of a minor or person
with disability. Clause (c) of sub-rule (2) of Rule 1 of Order XXXIIA
of the CPC provides as under: –
“1. Application of the Order.–(1) xxx xxx xxx
(2) In particular, and without prejudice to the generality
of the provisions of sub-rule (1), the provisions of this Order
shall apply to the following suits or proceedings concerning the
family, namely:–
(a) and (b) xxx xxx xxx
(c) a suit or proceeding in relation to the guardianship of
the person or the custody of any minor or other member of
the family, under a disability;
xxx xxx xxx
xxx xxx xxx"
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Similarly, in sub-rule (3) of Rule 1 of Order XXXIIA of the CPC, it has
been specifically provided that Order XXXIIA shall not be applicable
to a matter provided by special law. It provides as under: –
“(3) So much of this Order as relates to a matter provided
for by a special law in respect of any suit or proceeding shall not
apply to that suit or proceeding.”
As such, under the CPC, jurisdiction was specifically conferred upon
civil court to try matters pertaining to guardianship of person with
disability in addition to minor.
The Hindu Minority and Guardianship Act, 1956
12. The Hindu Minority and Guardianship Act, 1956 was introduced
with effect from 25th August, 1956 to supplement to the Act of 1890.
It is an Act to amend and codify certain parts of the law relating to
minority and guardianship among Hindus and further, it is an Act
which is in addition to, and not, save as otherwise expressly
provided, in derogation of, the Act of 1890. By virtue of Section 4(a)
of the Act of 1956, “minor” means a person who has not completed
the age of eighteen years and four kinds of guardians have been
defined in Section 4(b) of the Act of 1956, they are, (i) a natural
guardian; (ii) a guardian appointed by the will of the minor’s father
or mother; (iii) a guardian appointed or declared by a court; and (iv)
a person empowered to act as such by or under any enactment
relating any court of wards. The Act of 1956 confers power upon the
District Court to grant permission to the natural guardian by
providing that the natural guardian shall not, without the previous
permission of the court, mortgage or charge, or transfer by sale, gift,
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exchange or otherwise, any part of the immovable property of the
minor. As such, Section 8(2) of the Act of 1956 confers power only
upon the District Court to grant permission to transfer the property
of minor with the previous permission of the District Court as
defined under Section 8(6) of the Act of 1956. This jurisdiction was
specifically conferred upon the District Court for the first time by the
legislature.
The Family Courts Act, 1984
13. The Family Courts Act, 1984 was introduced with effect from 14-11-
1986. It is enacted to provide for the establishment of Family Courts
with a view to promote conciliation in, and secure speedy settlement
of disputes relating to marriage and family affairs and for matters
connected therewith. One of the objects of the Act of 1984 is to
provide for guardianship of a person or the custody of any minor.
Section 7, Chapter III, of the Act of 1984 deals with jurisdiction of the
Family Court. Section 7(1) provides that a Family Court shall have
and exercise all the jurisdiction exercisable by any district court or
any subordinate civil court under any law for the time being in force
in respect of suits and proceedings of the nature referred to in the
explanation, and Explanation (g) which is relevant to our case states
as under: –
“Explanation.–The suits and proceedings referred to in this
sub-section are suits and proceedings of the following nature,
namely:–
(g) a suit or proceeding in relation to the guardianship of the
person or the custody or, or access to, any minor.”
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14. As such, by virtue of Explanation (g) appended to Section 7(1) of the
Act of 1984, a suit or proceeding in relation to the guardianship of
the person or the custody of, or access to, any minor has expressly
been conferred to the Family Court, without specifying if the said
provision will be applicable for persons with disabilities, unlike the
CPC, which clearly makes provision for appointment of guardian for
person with disability. It also does not confer power for appointment
of guardian for property of the minor and still it remained with the
District Court under Section 9 of the Act of 1890 read with Section
8(2) of the Act of 1956 and power to alienate the property of minor
remained with the District Court under Section 8(2) of the Act of
1956. Section 8 of the Act of 1984 deals with exclusion of jurisdiction
and pending proceedings holding that where a Family Court has
been established for any area, no district court or any subordinate
civil court referred to in sub-section (1) of Section 7 shall, in relation
to such area, have or exercise any jurisdiction in respect of any suit
or proceeding of the nature referred to in the Explanation to that
sub-section, meaning thereby, with respect to Section 7(1),
Explanation (g), the Family Court would have the exclusive
jurisdiction to deal with a suit or proceeding in relation to the
guardianship of the person or the custody of, or access to, any minor
and the District Court would have no jurisdiction, and the power to
deal with minor’s property remained with the District Court.
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The National Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999
15. The Act of 1999 was enacted with effect from 30-12-1999 to provide
for the constitution of a body at the national level for the Welfare of
Persons with Autism, Cerebral Palsy, Mental Retardation and
Multiple Disabilities and for matters connected therewith or
incidental thereto. The Act of 1999 seeks primarily to uphold the
rights, promote the development and safeguard the interests of
persons with Autism, Cerebral Palsy, and Mental Retardation and
Multiple Disability and their families. Section 2(j) of the Act of 1999
defines “person with disability”. Section 11(2)(e) provides for setting
up of local level committee to grant approval for guardianship.
Section 13 prescribes the power for constitution of local level
committees, sub-section (1) provides for constitution of a local level
committee for such area as may be specified by it from time to time
and sub-section (2) provides that a local level committee shall consist
of (a) an officer of the civil service of the Union or of the State; (b) a
representative of a registered organisation; and (c) a person with
disability as defined in clause (t) of Section 2 of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995. Section 14 provides for appointment of
guardianship and sub-section (1) states that a parent of a person with
disability or his relative may make an application to the local level
committee for appointment of any person of his choice to act as a
guardian of the persons with disability. By virtue of Section 14(4),
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the local level committee is entitled to receive, process and decide
applications received under sub-sections (1) and (2), in such manner
as may be determined by regulations. Under Section 34, the Central
Government has been conferred power to make rules for carrying out
the provisions of the Act and accordingly, the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation
and Multiple Disabilities Rules, 2000 have been made. Similarly, in
exercise of power to make regulations conferred upon the Central
Government by virtue of Section 35 of the Act of 1999, the Board,
with the previous approval of the Central Government made the
Board of the Trust Regulations, 2001. Regulation 11 provides as to
who may apply for guardianship and Regulation 12 provides as to
who may be indicated by applicant as guardian. Regulation 13
provides Guidelines for receiving, processing and confirmation of
application for appointment of a guardian. Similarly, Regulation 14
provides Particulars of orders passed by the Local Level Committee
and it prescribes that the Local Level Committee shall send to the
Board the particulars of the applications received by it and the orders
passed thereof, every three months and the order passed by the Local
Level Committee under Section 14(1) of the Act of 1999 read with the
rules made thereunder will be subject to proceedings under Article
226/227 of the Constitution of India.
16. As such, from the conjoint reading of the provisions contained in the
Act of 1999 read with the Rules of 2000 and the Regulations of 2001,
it is apparent that the Act of 1999 and the Rules and Regulations
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made thereunder are special legislation to cater for the welfare of the
persons suffering from Autism, Cerebral Palsy, Mental Retardation
and Multiple Disabilities. Thus, the Act of 1999 is the only legislation
specially enacted for appointment of guardianship of persons with
autism, mental retardation, cerebral palsy and persons with multiple
disabilities, whereas the CPC provided for appointment of guardian
for persons with disability but only to the extent where no special law
was applicable, once special law is enacted in shape of the Act of
1999, it (CPC) will give way to the special law.
Prior General law and Later Particular law
17. A prior general Act may be affected by a subsequent particular or
special Act, if the subject-matter of the particular Act prior to its
enforcement was being governed by the general provisions of the
earlier Act. In such a case the operation of the particular Act may
have the effect of partially repealing the general Act, or curtailing its
operation, or adding conditions to its operation for the particular
cases. The distinction may be important at times for determining the
applicability of those provisions of the General Clauses Act, 1897,
(Interpretation Act, 1889 of UK now Interpretation Act, 1978) which
apply only in case of repeals. (See Principles of Statutory
Interpretation by Justice G.P. Singh, 15th Edition.)
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Generalia Specialibus Non Derogant
18. The maxim “Generalia specialibus non derogant” is a well
acknowledged legal maxim which means that if two laws cover the
same subject-matter, the special law overrides the general one.
19. The maxim “Generalia specialibus non derogant” is quite well-
known. The rule flowing from the maxim has been explained in
Mary Seward v. Owner of the “Vera Cruz”4 as follows:
“Now if anything be certain it is this, that where there are
general words in a later Act capable of reasonable and sensible
application without extending them to subjects specially dealt
with by earlier legilsation, you are not to hold that earlier and
special legislation indirectly repealed, altered, or derogated
from merely by force of such general words, without any
indication of a particular intention to do so.” (Para 8). U.P.
SEB v. Hari Shankar Jain5.”
20. The Supreme Court in Gujarat State Cooperative Land
Development Bank Ltd. (supra) held that in accordance with the
maxim generalia specialibus non derogant, nothing in these general
provisions can derogate from B.I.R. Act and the Cooperative Society
Act must yield to the special provisions in the Bombay Industrial
Relations Act, and observed as under: –
“29. The matter can be looked at from another angle also.
The law of industrial disputes or industrial relations is a special
law dealing with rights and obligations specially created by it.
As against this, the provision in Section 54 of the Act of 1925/
Section 96 of the Act of 1961 is a general provision. In
accordance with the maxim generalia specialibus non
derogant, therefore, nothing in these general provisions can
derogate from B.I.R. Act and the Cooperative Society Act must
yield to the special provisions in the Bombay Industrial4 (1884) 10 AC 59, 68
5 (1978) 4 SCC 16, 27
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Relations Act, whenever a dispute clearly comes within the
language of the latter Act.”
21. Similarly, in Life Insurance Corporation of India (supra), the
Supreme Court has held that the legal maxim generalia specialibus
non derogant is ordinarily attracted where there is a conflict between
a special and a general statute and an argument of implied repeal is
raised, and observed as under: –
“49. The next logical question then is as to whether the ID Act
is a general legislation pushed out of its province because of the
LIC Act, a special legislation in relation to the Corporation
employees. Immediately, we are confronted with the question
as to whether the LIC Act is a special legislation or a general
legislation because the legal maxim generalia specialibus non
derogant is ordinarily attracted where there is a conflict
between a special and a general statute and an argument of
implied repeal is raised. …
“54. … The maxim generalia specialibus non derogant is
quite well known. The rule flowing from the maxim has been
explained in Mary Seward v. Owner of the ‘Vera Cruz’ [craies
on statute law, 1963 Edn, PP 376-77] as follows:
‘Now if anything be certain it is this, that where there are
general words in a later Act capable of reasonable and
sensible application without extending them to subjects
specially dealt with by earlier legislation, you are not to hold
that earlier and special legislation indirectly repealed,
altered, or derogated from merely by force of such general
words, without any indication of a particular intention to do
so.’ ”
22. Similarly, in the matter of Suresh Nanda v. Central Bureau of
Investigation6, relying upon the principles laid down in Justice
G.P. Singh’s Principles of Statutory Interpretation, it has been held
that the special law prevails over the general law.
6 (2008) 3 SCC 674
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23. Lastly, in the matter of Harcharan Dass Gupta v. Union of
India7, the Supreme Court has held that the Arbitration Act, 1996 in
general governs the law of Arbitration and Conciliation, whereas the
MSMED Act, 2006 governs specific nature of disputes arising
between specific categories of persons, to be resolved by following a
specific process through a specific forum. The Supreme Court has
further held that ergo, the MSMED Act, 2006 being a special law and
the Arbitration Act, 1996 being a general law, the provisions of the
MSMED Act would have precedence over or prevail over the
Arbitration Act, 1996, and observed as under: –
“8. We have given our anxious consideration to the
submissions of both the parties. In our view, the issue is no
more res integra and is covered by the decision of this Court in
Mahakali. As we need to do nothing more than refer to the
relevant portions of the binding precedent, the reasoning, as
well as the conclusion in this decision are extracted herein for
ready reference. At the outset, the following two paragraphs
clearly explain the principle on the basis of which the court
holds that the MSMED Act overrides the Arbitration Act:
“42. Thus, the Arbitration Act, 1996 in general governs the
law of Arbitration and Conciliation, whereas the MSMED
Act, 2006 governs specific nature of disputes arising
between specific categories of persons, to be resolved by
following a specific process through a specific forum. Ergo,
the MSMED Act, 2006 being a special law and the
Arbitration Act, 1996 being a general law, the provisions of
the MSMED Act would have precedence over or prevail
over the Arbitration Act, 1996. In Silpi Industries case
[Silpi Industries v. Kerala SRTC, (2021) 18 SCC 790] also,
this Court had observed while considering the issue with
regard to the maintainability and counter-claim in
arbitration proceedings initiated as per Section 18(3) of the
MSMED Act, 2006 that the MSMED Act, 2006 being a
special legislation to protect MSMEs by setting out a
statutory mechanism for the payment of interest on delayed
payments, the said Act would override the provisions of the
7 2025 SCC OnLine SC 1111
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Arbitration Act, 1996 which is a general legislation. Even if
the Arbitration Act, 1996 is treated as a special law, then
also the MSMED Act, 2006 having been enacted
subsequently in point of time i.e. in 2006, it would have an
overriding effect, more particularly in view of Section 24 of
the MSMED Act, 2006 which specifically gives an effect to
the provisions of Sections 15 to 23 of the Act over any other
law for the time being in force, which would also include the
Arbitration Act, 1996.”
Lex Posterior Derogate Priori
24. The issue can be considered from another angle that is to say another
legal maxim, lex posterior derogate priori (later law repeals earlier
law. As per the rules of interpretation discussed in the matter of
Maya Mathew v. State of Kerala and others 8, it has been held
by the Supreme Court that where a later special law is repugnant to
or inconsistent with an earlier general law, the later special law will
prevail over the earlier general law, and further, it has been observed
as under: –
“12. The rules of interpretation when a subject is governed by
two sets of rules are well settled. They are:
(i) When a provision of law regulates a particular subject
and a subsequent law contains a provision regulating the
same subject, there is no presumption that the latter law
repeals the earlier law. The rule-making authority while
making the later rule is deemed to know the existing law on
the subject. If the subsequent law does not repeal the
earlier rule, there can be no presumption of an intention to
repeal the earlier rule;
(ii) When two provisions of law–one being a general law
and the other being a special law govern a matter, the court
should endeavour to apply a harmonious construction to
the said provisions. But where the intention of the rule-
making authority is made clear either expressly or
8 (2010) 4 SCC 498
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{FA(MAT) No.314/2023}
impliedly, as to which law should prevail, the same shall be
given effect.
(iii) If the repugnancy or inconsistency subsists in spite of
an effort to read them harmoniously, the prior special law is
not presumed to be repealed by the later general law. The
prior special law will continue to apply and prevail in spite
of the subsequent general law. But where a clear intention
to make a rule of universal application by superseding the
earlier special law is evident from the later general law,
then the later general law, will prevail over the prior special
law.
(iv) Where a later special law is repugnant to or
inconsistent with an earlier general law, the later special
law will prevail over the earlier general law.”
Discussion and Analysis
25. As such, following the principles of law laid down by their Lordships
of the Supreme Court relying upon the maxims generalia specialibus
non derogant and lex posterior derogate priori, in our considered
opinion, the Act of 1999 being a special legislation especially enacted
for the welfare of the persons with disabilities taking care not only
for appointment of guardians, but for their welfare throughout, will
have the overriding effect over Order XXXIIA Rule 1(2)(c) of the CPC
which provided for appointment of guardian of person with
disability, but only to the extent where the special law is not
applicable, however, since here in the present case, special law i.e.
the Act of 1999 has been enacted with effect from 30-12-1999,
therefore, the Family Court would have no jurisdiction to entertain
the application for appointment of guardian of person with disability.
26. As such, after coming into force of the Act of 1999 and constitution of
local level committee, the general law as contained in Order XXXIIA
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Rule 1(2)(c) of the CPC will be no more operating and jurisdiction
has been conferred exclusively upon the local level committee and
thus, the Family Court has rightly did not exercise the jurisdiction.
Accordingly, the Family Court is absolutely justified in not touching
upon the jurisdiction exclusively vested in the local level committee
under Section 14(1) of the Act of 1999, even if the local level
committee was not constituted at that time, the appellants herein
were required to invoke the jurisdiction of this Court under Article
226/227 of the Constitution of India, but in no case, the Family
Court would have the jurisdiction to entertain that application. The
question of law is answered accordingly.
Conclusion
27. In view of the aforesaid discussion, we are of the considered opinion
that the special Act of 1999 made for the welfare of persons with
Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
will prevail over the general law enacted under Order XXXIIA Rule
1(2)(c) of the CPC. Therefore, the application filed by the appellants
was not maintainable before the Family Court after the introduction
of the Act of 1999 with effect from 30-12-1999.
28. Now, it is stated at the Bar by the learned amicus that a local level
committee has already been constituted at Koriya (Baikunthpur)
with effect from 19-1-2026. The appellants are at liberty to move
application before the said committee and the said committee will
make its endeavour to consider and dispose of the said application in
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accordance with the Act of 1999 and the rules and regulations made
thereunder, expeditiously.
29. With the aforesaid observation and direction, the appeal stands
dismissed. There will be no order as to costs.
30. This Court appreciates the assistance rendered by Mr. Manoj
Paranjpe, Senior Advocate, and Mr. Rahul Tamaskar, Advocate, who
appeared as amicus curiae and made submissions and also assisted
the Court by giving written synopsis in the matter.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
JUDGE JUDGE
Soma