5 Decide HC Bench to rule on concurrent jurisdiction to listen to custody circumstances

A full chamber, composed of three judges, considered that the matter should be heard by a larger chamber

A full chamber, composed of three judges, considered that the matter should be heard by a larger chamber

A full panel (comprising three judges) of the Madras High Court has unanimously concluded that only a larger panel of five judges should rule on whether the High Court can continue to exercise concurrent jurisdiction to hear requests for custody and guardianship by estranged couples , even after the passage of the Family Courts Act 1984 to deal with marital disputes.

Judges PN Prakash, M. Sundar and AA Nakkiran directed the registry to submit the entire file to Chief Justice Munishwar Nath Bhandari and seek orders for the formation of a larger Chamber. The judges recalled that in October 1989 a judicial panel in Mary Thomas v. Dr. KE Thomas had ruled that the High Court’s original jurisdiction would not be vacated because of family courts.

Since such a judgment had been rendered by a tribunal of equal strength, the judges held that the present reference inevitably needed to be considered only by a larger tribunal. The reprimand was made by Judge V. Parthiban while dealing with a custody case. The single judge firmly believed that matters of custody and guardianship belonged to the family courts and not to the High Court.

While dealing with the most sensitive issue of child custody, the courts must be sufficiently and appropriately architected to deal with the screams of children being tossed from one parent to the other. Although family courts were equipped with marriage counselors and child psychologists to assess the welfare of minors, the High Court had no such body, the judge said.

“Judges of the High Court invariably make decisions to grant or deny visitation rights or temporary detention on the basis of their brief interaction with the minors in their chambers,” he stressed.

“The interplay of the parties’ emotions during the short time of interaction hardly makes the decision-making process a welcome one. The decisions are made from the opinions drawn from the peripheral negotiations, with, [in] In all likelihood, the judge has absolutely no idea which party actually has custody of the children and in whose custody, albeit temporarily or otherwise, the interests of the minors are secured,” lamented Judge Parthiban.

The judge continued, “The entire exercise has become nominal from the experience of this court, and the outcome of such interaction betrays a wise and insightful judgment on the part of the judge. The extremely important and sensitive issue of deciding custody cannot be left solely and entirely to the judge who is not endowed with knowledge of child psychology or is unable to understand the contextual single parent syndrome that mediates the minor.”

“What is even more troubling and disturbing is that the children brought into the chambers for interaction are invariably brainwashed and indoctrinated by the hegemonic parents who held custody of the children for some time prior to the interaction hearings. In such a situation, the task before a judge is to find an ad hoc ill-considered arrangement and impose its solution on the children and the embittered parents,” he added.

“Therefore, decisions in the High Court on permanent or temporary child custody or visitation rights for long or short periods have been made as a result of a reductive approach taken by the court. Such important and highly sensitive issues relating to the custody of minors cannot be left to the vagaries of the system as they currently prevail in the High Court and it is therefore time to take a fresh look at the whole case-law issue,” the judge said.