We Dissent!: Here’s why 2 out of 5 judges ruled against Madras High Court’s original jurisdiction in child custody cases

Madras High Court

Madras High Court: 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 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; while P.N. Prakash and N. Anand Venkatesh, JJ. disagreed with the majority opinion, and observed that the statutory jurisdiction under the Guardians and Wards Act, (GAWA)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 dissenting judges noted that the full bench in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 has not adverted to the actual conflict that was between Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904, and has not examined the provisions of the GAWA, nor have examined the object and purpose behind the Family Courts Act, 1984 (FC Act) or the scope and effect of Sections 7 and 8 of the FC Act. Further, there was absolutely no discussion about Clause 17 of the Letters Patent at all and the full bench has confined itself to the issue as to whether the High Court was a District Court under the FC Act, 1984, vis-à-vis, the definition of ‘District court’ contained in Section 2(4) of the Code of Civil procedure,1908 (CPC), further, it also overlooked the fact that resorting to Section 2(e) of the FC Act to telescope the definition of “District” into the Family Courts Act, 1984 was unnecessary, thus, the Court viewed that the decision in Mary Thomas requires reconsideration.

The Court noted that, one of the primary issues to be considered in this case is that whether the jurisdiction of the High Court under Clause 17 of the Letters Patent could be taken away by the FC Act, 1984, in respect of matters concerning guardianship, custody or access to a minor, and viewed that this line of argument is over-simplistic and it overlooks a vital distinction between two very different types of jurisdictions, viz., the statutory jurisdiction exercised by the High Court under the GAWA , and the jurisdiction of the High Court under Clause 17 of the Letters Patent.

Placing reliance on a decision in Navivahoo v. Turner, 1889 SCC OnLine PC 10 , the Court viewed that it has no application to a case concerning the exercise of inherent parens patriae jurisdiction by the High Court as according to the history of Clause 17, the jurisdiction of this Court as a parens patriae in respect of infants, mentally retarded persons in the State of Tamil Nadu is a facet of its inherent jurisdiction, inherited from the erstwhile Supreme Court of Madras. Further, it is evident from Section 9 of the GAWA, which states that a petition for appointment of a guardian for the person or property of minor shall be made to a “District Court” having jurisdiction in the place where the minor ordinarily resides. Moreover, Section 4(4) of GAWA, expressly defines the District Court as the meaning assigned to that expression in the Code of Civil Procedure,1882, and includes a High Court in the exercise of its ordinary original civil jurisdiction.  Thus, as per Section 4(4), it is clear that a High Court, while exercising jurisdiction in respect of a petition under the GAWA would be a District Court within the meaning of the Act, exercising its ordinary original civil jurisdiction for the City of Madras, and not under its inherent jurisdiction under Clause 17 of the Letters Patent.

The Court took note of the ruling in S.D. Joshi v High Court of Bombay (2011) 1 SCC 252 wherein the Court held that “the Family Courts are to exercise special jurisdiction which is limited to the subject-matters spelt out under Sections 7(1)(a) and (b) of the FC Act, and  is vested with all jurisdiction exercisable by any District Court or any subordinate civil court under the law”, and viewed that legislative intent envisaged the Family Court as a Court of exclusive jurisdiction in respect of certain matters concerning the family, including guardianship and custody of children It is like a Special Court constituted to hear certain types of cases following a specially devised procedure and whose orders are made subject to appeal under a special provision with a special period of limitation.

The Court noted that another primary question is whether the High Court is a “District Court” for the purpose of Sections 7 and 8 & 2(e) of the FC Act, 1984, read with Section 2(4) of the CPC, and further viewed that Section 7(1) of the FC Act, 1984, invests the Family Court with all the jurisdiction over a suit or proceeding in relation to the guardianship of the person, or the custody of, or access to, any minor which jurisdiction was being exercised by a District Court under any law for the time being in force. Thus, the guardianship and custody jurisdiction statutorily vested with the High Court under the GAWA, in its capacity as a District Court, can now be exercised only by the Family Court by virtue of Section 7 of the FC Act, 1984

The Court further observed that the High Court cannot exercise its statutory or inherent jurisdiction concurrently with the Family Court while deciding matters of custody and guardianship under the GAWA, as Section 7(1) read with Explanation (g) and Section 8(a) of the FC Act, 1984, leads to this inescapable conclusion that the jurisdiction exercised by any District Court in respect of matters of custody or guardianship under the GAWA , will be exercised by the Family Court and that no District Court  shall exercise such jurisdiction. Further, Explanation (g) to Section 7(1) of the FC Act, 1984, must be construed liberally to further the object of the legislation, that it would take within its fold, application for appointment of a guardian for the person and property of the minor as well.

Moreover, the inherent jurisdiction of the Madras High Court under Clause 17 of the Letters Patent, 1865, is not affected by the FC Act, 1984. However, resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any Court.

[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022


Appearances

For Petitioner: Advocate B. Poongkhulali

For Respondent : Advocate A.R. Palanisaamy


Also Read:

Madras High Court’s 3:2 verdict upholds its original jurisdiction in child custody cases; holds Mary Thomas to be a good law

 

One comment

  • Dissent is on the grounds “the guardianship and custody jurisdiction statutorily vested with the High Court under the GAWA, in its capacity as a District Court, can now be exercised only by the Family Court by virtue of Section 7 of the FC Act, 1984”.
    Obviously the other three judges have not taken the issue jurisdiction as seriously. There is no need to dissent. An observation can be made and consent on the decision could have been given if there is merit in the judgment. Dissenting on technicality is not conducive timely decision. Justice delayed is justice denied

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