Parents Petri | Madras High Court upholds 224-year-old jurisdiction to hear guardianship, child custody cases

Publication date: 18 September 2022

The Madras High Court upheld the 224-year-old jurisdiction; The five-judge bench, by a 3:2 majority, rules that the underlying jurisdiction cannot be superseded by the Family Courts Act 1984.

It is not often that the Madras High Court constitutes a five-judge bench. One such bench was set up this year to answer an important question of law – whether guardianship and child custody petitions should be filed only before family courts or even in the Madras High Court, with respect to its underlying parents. Can be filed by applying jurisdiction. Minor?

Justice PN Prakash, R. Mahadevan, M. Sundar, N. Anand Venkatesh and A.A. Nakkiran heard marathon arguments for months by a battery of lawyers, with a section arguing in favor of concurrent jurisdiction by the High Court as well as the Family Courts. and the other argued that after the enactment of the Family Courts Act, 1984 the jurisdiction of the High Court has ceased to exist.

Given the complex nature of the dispute due to parental jurisdiction that has been going on for more than 224 years, the five-judge bench’s ruling was not unanimous. Instead, it upheld the argument in favor of concurrent jurisdiction by a 3:2 majority and ruled that the High Court can exercise jurisdiction not only with respect to children residing within the city of Chennai but across the state.

While Justices Prakash and Anand Venkatesh were of the view that vested jurisdiction cannot be routinely invoked after a law is enacted to deal with guardianship and child custody rights, Justices Mahadevan, Sundar and Nakkiran ruled that The powers vested in the Constitutional Courts could not be taken away by law.

History discovered in 1798

Writing major judgments in favor of the removal of jurisdiction and the jurisdiction retention arguments, Justices Prakash and Mahadevan respectively trace the history of vested power to 1798, when the Court of Recorders, the predecessor of the Madras High Court, was established. The Court of Recorder was empowered to appoint guardians for “infants and natural fools”. In 1800, the Court of Recorders was abolished and replaced with the Supreme Court in Madras. A letter patent issued by the Crown to establish the Supreme Court contained verbatim clauses of the 1798 Charter and also authorized the successor court to appoint guardians. This practice continued until the passage of the Indian High Court Act of 1861.

Exercising powers under the Act of 1861, the Queen issued another letter patent on June 26, 1862, establishing the Madras High Court. Clause 16 of the Charter of 1862 read, “The High Court at Madras shall have equal power and authority with respect to persons and estates of infants, idiots and lunatics, whether within or outside the Presidency of Madras.”

When the Charter of 1862 was repealed and replaced with another Charter in 1865, Clause 17 empowered the High Court to appoint guardians, but the word ‘without’ was dropped, implying that The court could exercise its jurisdiction only within the Presidency of Madras. In view of the savings clause under Articles 225 and 372 of the Constitution, the 1865 Letters Patent remained in vogue till date.

first judge’s opinion

Therefore, Justice Prakash agreed that the High Court had, in fact, been exercising vested jurisdiction over matters of guardianship for a long time. However, he pointed out that a de facto law relating to guardianship was virtually non-existent when the Charter of 1865 came into force on December 28, 1865. The Guardianship and Wards Act (GAWA) was enacted only in 1890. It was a uniform statutory code. and a secular law that applies to persons of all religions. After this Act, the High Court had two separate jurisdictions – implicit and statutory.

Section 9 of the GAWA states that a petition for appointment of a guardian must be filed in a district court having jurisdiction over the place where the minor resides. Further, Section 4(4) of the Act has defined the term ‘District Court’ to include a High Court, whenever the latter exercises the ordinary original civil jurisdiction of entertaining cases directly contrary to its appellate jurisdiction. Is.

“From reading section 4(4) it becomes clear that a High Court shall be a District Court within the meaning of the Act. In other words, the High Court, in exercise of its normal original civil jurisdiction for the City of Madras, shall be the GAWA. Discharges functions as a district court under the Act and not under its inherent jurisdiction under section 17 of the Letters Patent,” Justice Prakash wrote.

Consequently, since the family courts took over the powers of the district courts with respect to a number of issues including guardianship since 1984, “there is no doubt in my mind that under the statutory jurisdiction formerly exercised by the High Court GAWA, has now been transferred to the Family Court by the Family Courts Act,” said the senior judge.

Further, he said, vested jurisdiction cannot be invoked when an explicit statutory provision or remedy is available. He wrote, “To say that the implied jurisdiction of the court can be routinely invoked would destroy its character as a residuary provision to meet exceptional cases, where in a statute to grant relief There is no clear provision,” he wrote.

Stating that the Bombay and Delhi High Courts also held a similar view, he said there should be uniformity in applying an all-India law like the Family Court Act. He said that if the concurrent jurisdiction argument is accepted, then guardianship petitions in Mumbai and Delhi will go to family courts, while similar petitions in Chennai will be governed by Letters Patent. “By interpreting the provisions of a Central Act like the Family Court Act, this Court cannot remain an island of statutory interpretation. It should not be interpreted in such a way that the enumeration is done to give different results in different states, The judge concluded.

disagreement of another judge

Disagreeing with his views, Justice Mahadevan observed that “the protection of the interests of infants, lunatics and idiots enjoys the jurisdiction of parents vested by a senior Constitutional Court to take care of themselves or protect their interests”. unable to defend or not”. cannot be seen as merely a residuary or purely supervisory jurisdiction.

“I may even go so far as to say that the territories occupied by the High Court and the Family Court cannot be said to be the same in matters of guardianship and custody. While the jurisdiction of the High Court is vast, there is a difference between the High Court and the Family Court. There may be too few areas of overlapping jurisdiction,” he wrote.

Along with the views of senior advocate Arvind P. Datar, who argued in favor of retaining the jurisdiction of the High Court in matters of guardianship, the judge observed that the Letters Patent jurisdiction would continue unless it was explicitly repealed. is removed or implied. A statutory act if the latter was a self-contained code.

“The Family Court Act is merely a procedural law and not a self-contained code as the substantive laws remain individual laws relating to marriage, maintenance, etc. Thus, in the absence of any explicit repeal, the letter cannot be patented as a law. which is applicable to certain aspects where the jurisdiction is simultaneously vested in a subordinate court,” he said.

The judge ruled that the inherent powers of the Constitutional Courts are non-violent and cannot be taken away by a law or even a constitutional amendment if they disrupt the basic structure of the Constitution. He also disagreed with the view that the High Court would fall within the meaning of a district court while adjudicating guardianship petitions.

He said that by invoking GAWA with or in line with Clause 17 of the Letters Patent of 1865, “the High Court will not be made a District Court. It is also in this respect that I differ with the opinion of my learned brother Justice PN Prakash”. “, he said before pronouncing the judgment that the territorial jurisdiction of the High Court on the entertainment of guardianship and child custody cases would extend to the entire state.

Although the Family Court Act limited the territorial jurisdiction of such courts to the districts in which they were located, the judge pointed out that Clause 17 of the Letters Patent of 1865 uses the expression ‘Presidency of Madras’ which was later used in 1947 and 1950. The middle became the province of Madras. , Madras State from 1950 to 1969 and then Tamil Nadu State from January 14, 1969.

“The jurisdiction of the High Court under section 17 of the Patent Patent is, by its nature, applicable to the whole of the State. When the High Court exercises jurisdiction as the High Constitutional Court and the Supreme Court of the State which is inherent and mother – is in the nature of the father, then it is natural that the said jurisdiction is to be exercised throughout the State,” he wrote.

practical considerations

Justice M. Sundar concurred with Justice Mahadevan’s view and listed the reasons which were both complementary and different. He began to say, “I am writing this order in the sacred spirit that two men may come to two opposite conclusions on the same issue, without losing their right to be called gentlemen and gentlemen.” He relied on international conventions and pointed out that with regard to issues relating to child custody and visitation rights, there has been a change from the regime of parents exercising their rights over children to the regime of fulfilling their responsibilities towards children. “India cannot be an exception in moving forward in this direction,” he said.

Analyzing the issue from a practical plane, apart from the legal point of view, the judge also referred senior advocates Chitra Sampath, Geeta Ramsession, Arulmozhi and B. Poongkuzhali, a regular physician before the family courts, noted that the ground situation in the latter was far from the higher purpose of the Family Court Act.

“This means that the High Court must inevitably come to the rescue of helpless minor children when they need help in certain cases, even by resorting to unconventional means, if necessary. If it is not so, they will be left helpless, high and dry under unfortunate circumstances,” the judge said, adding that the high court would be in a better position to do justice to them.

the fourth agrees with the first

However, Justice Venkatesh agreed with the view taken by Justice Prakash and differed with Justices Mahadevan and Sundar. “I have had the benefit of reading the cultured and scholarly order of my learned brother Mr. Justice PN Prakash. I fully agree with all his findings and conclusions,” he wrote before supplementing his reasons. He told the family The objective behind the enactment of the Courts Act was to create courts that were specifically to deal with certain matters listed under it. “The argument that the High Court can exercise its powers along with the Family Court is clear. utterly baseless,” he framed the 315-page judgment in an equally 2:2 ratio.

fifth balance tilts

Interestingly, after reading the orders of the other four judges, there were only two paragraphs penned by Justice Nakkiran, which tilted the balance in favor of retaining the jurisdiction of the High Court in guardianship and child custody matters. They agreed that the implied jurisdiction of the High Court could be removed only through an explicit repeal and that the Family Court Act was merely a procedural law.

“I have had the privilege of reading the orders of Hon’ble Mr. Justice PN Prakash, Mr. Justice R. Mahadevan, Mr. Justice M. Sundar and Mr. Justice N. Anand Venkatesh… I agree with the views expressed by me. Learned brothers Justice R. Mahadevan and Justice M. Sundar,” he concluded.

Countries: India