Madras HC 3-judge bench refers to a larger bench

A bench of 3 judges of the Madras High Court referred to a wider bench, the question relating to the jurisdiction of the High Court on the original side to decide on cases of custody and guardianship of children, due to the advent of the Family Courts Act 1984. The bench of Judges AA Nakkiran, PN Prakash and M. Sundar was constituted by the Chief Justice after Judge V. Parhiban ruled that…

A bench of 3 judges of the Madras High Court referred to a wider bench, the question relating to the jurisdiction of the High Court on the original side to decide on cases of custody and guardianship of children, due to the advent of the Family Courts Act 1984.

The bench of Judges AA Nakkiran, PN Prakash and M. Sundar was constituted by the Chief Justice after Judge V. Parhiban felt that the case should be decided by constituting a larger bench.

The three justices have now referred the matter to a larger panel since the Judgment of Marie Thomas which endorses the concurrent jurisdiction of the High Court and the Family Courts to adjudicate child custody cases was made by a panel of three High Court judges in 1989.

This full bench was evenly matched as well as a coordinated bench from the current bench. Under these circumstances, the current three-judge bench has deemed that the reference questions can only be answered after consideration by a wider bench.

In support of this observation, the court relied on judgments in the Full Bench of the Madras High Court and in the Tri-Judge Bench of the Supreme Court, respectively, i.e., Philip Jeyasingh vs. The Joint Registrar of Co-operative Societies (1992) and Central Excise Commissioner, Indore Vs. Grasim Industries Limited (2016).

In Philip Jeyasingh the bench observed that a Full Bench ruling is binding on a subsequent Full Bench until overturned by a higher court or larger bench. He also clarified that such a judgment can only be reviewed by a larger panel constituted by the Chief Justice.

In Grasim Industries Limited, the Supreme Court has held that where two coordinating benches take opposing views on the same issue(s), another coordinating bench cannot consider those issues or express an opinion on the merits of either point of view seen.

Hence, the bench of three judges ordered the registry to submit the case to Chief Justice Munishwar Nath Bhandari for the constitution of a larger bench.

The single bench of Judge V Parthiban noted last year that the family courts of an area have exclusive jurisdiction over the matters set out in the explanation of Article 7 (1), which is also clarified by the section 8 of the Family Courts Act and is no longer res-Integra due to Balaram Yadav vs. Fulmaniya Yadav (2016).

This indicated that custody and guardianship are matters covered by Section 7 of the Family Courts Act 1984 and would therefore be exclusively heard and decided by the Family Court. Then the question was whether the High Court on the original side can continue to hear matters relating to custody and guardianship which are exclusively within the jurisdiction of the Family Courts established under the Family Courts.

To answer this question, the Single Chamber also considered the Full Judgment of the Madras High Court in Mary Thomas vs. Dr. K. E. Thomas (1990) in which the court dealt with a trial between spouses in a matrimonial dispute. In this case, the High Court held that jurisdiction on the original side was not stripped by reason of the Family Courts Act 1984 or more specifically Section 7 of the Act.

Justice V Parthiban also explained the limitations of the High Court in exercising jurisdiction on the original side in these cases:

“There are no matrimonial or child counselors to the relevant judges who deal with custody matters…The extremely important and sensitive issue of deciding and dealing with custody matters cannot be left solely and entirely to the judge, who is not equipped with knowledge of child psychology or able to understand the contextual syndrome of single parenthood that permeates minors. What is more troubling and disconcerting is that, invariably, children who are brought in for interaction in the Chambers are brainwashed and indoctrinated by hegemony the parents having custody of the children for a period of time before the interaction hearings.”

Judge V. Parthiban observed that if the definition of Article 2(4) CPC applies, then the High Court, in its original version, would also be interpreted as a district court for the purposes of Article 8 of the Family Courts Act and covered by the law. jurisdictional exclusion under Article 8 of the Act. However, in Mary Thomas, the full panel did not refer to the Supreme Court judgment in Raja Soap Factory vs SP Shantharaj (1965), added the single judge. The plenary concluded that the definition of “district” appearing in Article 2(4) does not include a High Court on its side of origin, relying mainly on the definition of “district judge” appearing in Article 2(17) of the general clauses. Act, 1897, the definition of which does not include the High Court on the original side.

Accordingly, in the Order of 28 October 2021, Justice V. Parhiban expressed doubts as to the concurrent jurisdiction of the High Court to determine guardianship and custody of the children.

“This state of affairs has been fashionable since the establishment of the family courts in Chennai, and for more than three decades since Mary Thomas (supra) it has been perceived as legal. Therefore, it may not be judicious to so decide by this court sitting separately since Mary Thomas was a member of a full bench of eminence And it turns out that the high courts of Delhi, Bombay and Calcutta also went the route of a remand before a final decision is made.”, thThe court noted before going to the registry that it had asked the chief justice to make a referral.

The court then asked two questions which had to be answered in the reference, which is as follows:

(I) If the jurisdiction of the High Court at first instance over matters of custody and guardianship of children is ousted, having regard to the provisions of explanation (g) of section 7(1) read with sections 8 and 20 of the Family Courts Act, 1984?

(ii) If the decision of a full bench of this Court in Mary Thomas Vs. Dr. KEThomas (AIR 1990 Madras 100) is still right?

“This Court is also aware that subordinate courts are equally, if not more competent and capable, to deal with such matters. The Family Court even has the advantage of counselors and welfare experts to assist them. to deal with these sensitive issues in a satisfactory manner. They are not found to be insufficient in this respect”, Judge V. Parthiban noted then.

Case title: Minor & Anr vs. K Vijay

Case No.: OP n° 599/ 2018

Click here to read/download the order

Thelma J. Longworth