On the second day of the hearing, which related to the High Court’s original jurisdiction over custody and guardianship matters following the introduction of the Family Courts Act 1984, the Madras High Court’s Additional Attorney-General, R. Sankaranarayanan, made his submissions in favor of the removal from office of the Jurisdiction of the High Court.
The reference will be heard from a full bench of Judge PN Prakash, Judge R Mahadevan, Judge M Sunder, Judge N Anand Venkatesh and Judge AA Nakkiran.
The ASG initially stated that he was not acting for the government, but as a private individual. He explained the story behind the Letters Patent and discussed clauses 17 and 44 of the Letters Patent of Madras which read as follows:
Clause 17 – Jurisdiction over infants and lunatics: – And we further rule that said High Court in Madras shall have equal power and authority in relation to the persons and property of infants, idiots and lunatics within the Presidency of Madras as what is now bestowed on said high (ours just prior to the release of these gifts.
Clause 44 – Retain powers of Indian Legislature: –[And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council,] and also the Governor-General in Council under Section 71 of the Government of India Act, 1915, and also the Governor-General in emergencies under Section 72 of that Act and may be supplemented and amended in every respect by it]
Therefore, he explained that if there is any law made by Parliament or the Legislature providing anything other than that provided for in the Letters Patent, it shall have authority over the Letter Patent as provided for in Clause 44 (which would take precedence clause 17).
He also referred to Sections 34 and 35 dealing with testamentary and statutory jurisdiction and matrimonial jurisdiction, adding a proviso that it must not interfere with laws made by the legislature in this regard. According to the ASG, Section 17 should therefore be understood in connection with Sections 34, 35 and 44.
He argued that the Guardians and Wards Act, together with the Family Courts Act passed by the legislature, would clarify that the High Court’s jurisdiction is excluded.
He further argued that the definition of district provided for in Section 2(4) CPC did not mean that the High Court was also a district court. Although the High Court used to have jurisdiction as a district court, following the introduction of the Family Courts Act that power was superseded by Section 8 of the Act in conjunction with Section 44 of the Letters Patent.
He also explained that the cessation of jurisdiction does not mean that the High Court has no power at all. The impeachment was only in relation to the High Court, which had jurisdiction as the High Court. He argued that even if the court were inclined to rule that the family court had sole jurisdiction, in certain special circumstances the High Court could exercise jurisdiction.
Significantly, the board noted that his written submissions were submitted as amicus curiae, which could not be accepted. He was therefore instructed to make the necessary changes in this regard.
The matter will be resolved on the 15thth June 2022 for further hearing.
Read the petitioners’ arguments here.
Case title: S. Annapoorni v. K Vijay
Case #: Application #5445 of 2018
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