Madras High Court: In a case relating to the issue of concurrent jurisdiction of the High Court over matters of child custody and guardianship with the family Courts, the five-judge bench of P.N. Prakash, N. Anand Venkatesh, R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ. in a 3:2 majority decision, held that jurisdiction of the High Court on its original side over matters of child custody and guardianship is not ousted in view of the provisions of Explanation (g) to Section 7(1) read with Sections 8 and 20 of the Family Courts Act, 1984 (FCA)and the decision in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 continues to be a good law.
P.N. Prakash and N. Anand Venkatesh, JJ disagreed with the majority opinion of R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ and observed that the statutory jurisdiction under the Guardians and Wards Act, 1890 is now exclusively vested with the Family Court and resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any court for redress.
The Court observed that the jurisdiction vested upon this Court under Clause 17 of Letters Patent of 1865 would broadly fall within the Civil Jurisdiction, however, what has been vested is an inherent jurisdiction of the superior Court in the nature of ‘parens patriae’ (parent of the nation) jurisdiction to safeguard the interests of such category of persons, such as, infants, lunatics and idiots, who are incapable or not in a position to take care of themselves or to safeguard their own interests.
The Court further observed that, to view an inherent jurisdiction such as the ‘parens patriae’ jurisdiction as a residuary jurisdiction or a purely supervisory jurisdiction would be to discourage against the very nature of such jurisdiction. Further, while the power and jurisdiction available to this Court under Clause 17 are not only much broader and larger in its scope and extent, but also would encompass every situation that warrants the interference of the High Court as a superior Constitutional Court in order to safeguard the interests of infants; and the jurisdiction vested in the Family Court by statute on guardianship is only one facet of the jurisdiction which inheres in a superior Constitutional Court, like the High Court. Thus, the fields occupied by the High Court and the Family Court cannot be said to be one and the same in the matters of guardianship and custody and while the jurisdiction of the High Court is much larger, there may be very few areas of overlapping jurisdiction between them.
Placing reliance on the ruling in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 , wherein the the Court held that “Letters Patent jurisdiction has to be expressly excluded and in the absence of an express repeal, the Letters Patent may be impliedly taken away only where the special enactment is a self-contained code”, the Court viewed that the FCA,1984 is only a procedural legislation and not a self-contained code because the substantive laws continue to be the statutory provisions or the personal laws relating to marriage, maintenance etc. As such, in the absence of any express repeal, the Letters Patent cannot be taken away by a legislation.
Moreover, Article 225 of the Constitution of India expressly preserves the jurisdiction of the existing High Courts, the jurisdiction of the High Court under Clause 17 is thus constitutionally preserved and in the absence of a self-contained code that deals with guardianship, the powers of the High Court cannot be ousted. Further, in view of Article 372, Clause 17 will continue to be in force until repealed or amended by a competent legislature or by an appropriate self-contained code. Thus, it is now well established that the High Court as a superior Constitutional Court can deal with matters of guardianship and custody even in its exercise of writ jurisdiction.
The Court referred to the ruling in Benedict Denis Kinny v. Tulip Brian Miranda, 2019 SCC OnLine Bom 13043, and observed that the power of the Constitutional Courts in exercise of their inherent jurisdiction are inviolable as they cannot be taken away by legislation or even by a constitutional amendment if that would hamper the basic structure of the Constitution. Thus, to say that such a broad power of a constitutional court which can be taken away only by way of a constitutional amendment and not by a statute but can be limited by statute to be used only as a residuary power, is a contradiction of sorts.
Hence, the Court observed that “since the parens patriae jurisdiction of the High Court is an inherent power stated expressly in the Letters Patent and saved by Articles 225 and 372 of the Constitution, they continue to be part of the inherent powers of the superior constitutional courts and no statute much less a procedural Legislation, can place fetters on such a power”.
Further, the Court while interpreting Section 7 (1) read with Explanation (g) of the FMA, 1984 observed that the power to appoint a guardian for the property of the minor also along with the person of a minor would not be legally permissible.
It was also observed that the Parliament in its wisdom, has used the term ‘High Court’ not in one but in eight different provisions of FCA, thus, it has consciously chosen to not to use this term in Sections 7 and 8 of FCA, hence, the Court cannot read anything into a statutory provision which is plain and unambiguous .Further, reading the FCA as a whole starting from 59th Report of the Law Commission to statement of objects and reasons and provisions, it is clear that the Parliament never intended to deprive High Court of its powers in guardianship of the person or the custody of or access to any minor matters and its intention was only to create Special Courts and move these matters out of the realm of regular District Courts.
Moreover, the Court observed that the High Court does not need an appendix of either the Guardians and Wards Act,1890(GAWA) or any other statute in order to exercise its jurisdiction under Clause 17 of the Letters Patent, and if the petition has stated the provisions under the GAWA and invoked the jurisdiction of the High Court under Clause 17 it will not make the High Court a District Court for the purposes of its exercise of jurisdiction under Clause 17 of the Letter Patent,thus, the exercise of the ordinary original jurisdiction of the High Court within the meaning of Section 4(4) of the GWA when invoked along with the meaning of Clause 17 of the Letters Patent, cannot be said to be ousted by the FCA,1984.
The Court further viewed that Section 4(4) of GAWA talks about the 1882 CPC. Therefore, the definition of ‘District Court’ under GAWA is hardly a guide to conclude the reference on hand. It further noticed that under GAWA, the term ‘the Court’ has also been explained vide section 4(5) and that inter-alia talks about District Court having jurisdiction to entertain an application under GAWA for appointment of guardian. Thus, a conjoint reading of sections 4(4), 4(5) and section 3 of GAWA makes it clear that the power of the High Court is intact.
Moreover, Section 100-A of Code of Civil Procedure ,1908 (CPC) makes it clear that the Letters Patent of any High Court cannot be swept away by section 2(4) CPC and if anything contained in the Letters Patent has to be excluded it has to be done expressly.
The Court denied any reconsideration of the decision in Mary Thomas Vs. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 as the full bench in this case has appropriately dealt with the issue and the only fact that the said decision did not advert to, discuss or analyse the conflict between the decisions in Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and in the Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904 alone, cannot be a reason to hold that this decision requires reconsideration as there was no apparent conflict between these two judgements. Further, these judgements have been rendered by two Division Benches at different points in time where the legal circumstances surrounding them were very different.
Further, the Court noted that the reconsideration of Mary Thomas has been sought on two grounds that the full bench did not consider Raja Soap Factory v. S.P. Shantharaj, (1965) 2 SCR 800,and Section 20 of FCA has overriding effect, and viewed that the Mysore High Court did not have original jurisdiction on the date of presentation of plaint in Raja Soap Factory. Moreover, Section 20 of FCA has no application as clause 17 of Letters Patent confers substantive power while section 20 is a procedural provision and there is nothing inconsistent.
[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022]
Advocates who appeared in this case :
B. Poongkhulali, Advocate, for the Petitioner;
A.R. Palanisaamy, Advocate, for the Respondent.