Candidates to the Madras Excessive Court docket FB advocate competing jurisdiction in custody circumstances

A full chamber of the Madras High Court on Friday began hearing a matter affecting the High Court’s original jurisdiction over child custody and guardianship matters following the entry into force of the Family Courts Act 1984.

A bench consisting of Judge PN Prakash, Judge R Mahadevan, Judge M Sunder, Judge N Anand Venkatesh and Judge AA Nakkiran was formed to answer the following two questions in the Reference, posed by a bench of three Judges:

(i) Whether the High Court, on its original side, has jurisdiction in matters of custody and guardianship of children in relation to the provisions of Explanatory Note (g) to Section 7(1) in conjunction with Sections 8 and 20 of the Family Courts Act , 1984?

(ii) Whether the decision of a full bench of that court in Mary Thomas Vs. KEThomas (AIR 1990 Madras 100) is still good law?

On Friday, the court mainly heard arguments about how the Mary Thomas decision is still good law and how the High Court continues to have simultaneous jurisdiction. Senior Advocate Arvind Datar, Attorneys Geeta Ramaseshan, Chitra Sampath, Jyoti, Harisankar, Davidson, Kartik Ranganathan and Ajay Francis made submissions in this regard.

The controversy arose when a single Chamber of the High Court set out the High Court’s limitations on the exercise of its jurisdiction on the original side in these matters. Thomas had observed the full bank in May (above). did not refer to the Supreme Court ruling in Raja Soap Factory vs. SP Shantharaj (1965) who noted that the definition of ‘county’ in Section 2(4) did not include a High Court on their original page.

Datar mainly asserted that the word district court had no uniform meaning and its meaning depended on each law. He explained that the single judge mistakenly confused the defendant’s submissions with the relation to the Raja Soap Factory case. Defendants had argued in this case that the definition of district in CPC was ratio. Pursuant to Section 2(4) of the CPC, “district” means the local limits of jurisdiction of a principal civil court of original jurisdiction (hereinafter referred to as a district court) and includes the local limits of the ordinary original civil jurisdiction of a Supreme Court. The lawyer also pointed out that the decision at the Raja Soap Factory was made by a 4-person bench, as opposed to an even number. However, Judge Sunder replied that there is no impediment to having an even-numbered bench and if the decision is 2-2 in such cases, the senior judge’s observation takes precedence.

Datar argued that the Madras Supreme Court had jurisdiction over letter patents and that jurisdiction could not be tacitly withdrawn. Although the Family Courts Act is a core piece of legislation, it should have expressly supplanted the jurisdiction of the High Court. He therefore argued that although Section 8 of the Family Court Act was a exclusion of jurisdiction, it did not exclude the jurisdiction of the High Court.

The Court orally noted that although High Court has been defined under Article 336 of the Constitution and the General Clauses Act, the word District Court is nowhere defined, including the Family Court Act or the CPC. What the CPC provides is only a definition of the district and taking into account that the main court in that district would be the district court. It is therefore a description and not a definition of the word district court.

Datar concluded by noting that the legislature, while excluding jurisdiction, had deliberately used the word “district court” rather than “all courts”. Thus, the High Court’s power cannot be withdrawn and the Letter Patent would take precedence over the provisions of the Family Courts Act.

Attorney Geeta Ramaseshan argued that clause 17 of the Letter Patent was a separate provision. She argued that in matters such as guardianship territoriality should not be restricted and the powers of the High Court should not be drained. She also argued that the powers of the High Court should be expressly overridden and that in the event of confusion the Letter Patent would prevail. She concluded by noting that while there were concerns that the High Courts were not as well equipped as the Family Court to deal with such sensitive issues, the High Court could always appoint advisers and put in place the necessary infrastructure to look after itself to deal with these sensitive issues.

Attorney Chitra Sampath began her submissions by discussing the various clauses of the Letter Patent. She argued that all of these clauses contained a built-in provision for the legislature to introduce amendments. There were internal precautions on how it can be changed and how to take it into account. However, Clause 17 does not provide for any such restriction or territorial limitation. It is an independent clause and states that the High Court will have supreme power in relation to minors, insane people etc. She explained that the jurisdiction conferred on the family court was incidental under Section 7 of the Family Court Acts. It is limited to settling matters arising from disputes pending before the court. Therefore, the jurisdiction of the High Court was not withdrawn. She concluded by saying that the Letter Patent is a specific law and takes precedence over the general law. The Family Courts Act was just a general law establishing a form of jurisdiction.

Attorney N Jyothi argued that a law can provide relief in two places and that the litigant should have the choice of seeking relief in either place. A harmonious construction was required. Therefore, there was no bar with competing jurisdiction in the High Court.

Solicitor Shakespeare pointed out that the High Court has original jurisdiction to appoint guardians for the insane etc. under clause 17 of the Letter Patent and also under the Mental Health Act.

Attorney Harisankar argued that there should be no blanket evasion of jurisdiction and the determination of what authority would be appropriate would depend on each case.

“Laws giving two courts concurrent jurisdiction are not new. If there are claims, the court with the lowest jurisdiction will exercise jurisdiction. In the rarest of cases, the Supreme Court has to accept cases based on their severity,” he said.

The solicitor explained that if anything like a warrant or injunction needs to be issued to gain access to a minor abroad, the High Court will have better authority than the District Court. If both of the minor’s parents die and the grandparents If they have a dispute, they do not go to family court because it is not a marital dispute. You must go to the High Court. It was therefore his contention that the High Court’s jurisdiction should not be supplanted.

Attorney Kartik Ranganathan submitted that clauses (a)-(f) of the Family Courts Act have various supporting enactments defining the words court and district court. However, in Section (g) of Section 7 dealing with guardianship, the word ‘High Court’ has been deliberately omitted. He argued that what was deliberately omitted should not be seen as evading the Court’s jurisdiction.

The arguments against the High Court exercising jurisdiction will be considered at 14:30 on 13 June 2022.

Case title: Minor & Anr vs. K Vijay

Case No.: OP No. 599/2018