Full bench of Madras High Court to decide on original jurisdiction in custody, guardianship matters

A full bench of the Madras High Court will examine the question of whether the High Court in exercise of its original jurisdiction can hear matters of custody and guardianship which are exclusively cognizable by the Family Courts under the Family Courts Act..A single-judge of the High Court directed that a matter involving this issue be placed before the Chief Justice so as to constitute an appropriate Bench.Justice V Parthiban also raised a question as to whether the Full Bench decision in Mary Thomas v. Dr. KEThomas, which is the basis of the present jurisdiction, was still good in law.The following two questions were, therefore, framed by the single-judge for the consideration of the full bench.“(i) Whether the jurisdiction of the High Court, on its Original Side, over matters of child custody and guardianship is ousted, in view of the provisions of Explanation (g) to Section 7(1) read with Sections 8 and 20 of the Family Courts Act, 1984? and(ii) Whether the decision of a Full Bench of this Court in Mary Thomas Vs. Dr. KEThomas (AIR 1990 Madras 100) is still good law? ".The single-judge was hearing a custody dispute when he observed that the High Court was saddled with custody and guardianship matters which appeared to belong to realm of the Family Courts constituted under the Family Courts Act, 1984..Further, doubt was expressed as to the tenability of the concurrent jurisdiction of the High Court and Chennai Family Courts with regard to such matters.“This Court felt that such cases were being escalated to this Court repetitively, despite the fact that they may well be decided by the Family Court,” the order said..It was the single-judge’s view that while dealing with sensitive cases of such nature, courts must be adequately equipped with architecture to deal with the cries of children being tossed from one parent to the other. However, in the current circumstances, decisions were taken on the basis of brief interactions with the children.“The decisions are taken from the opinions drawn from the peripheral parleys, with all probability, the Judge having no clue at all which party deserves grant of custody and in whose custody, albeit temporary or otherwise, the interest of the minors, is secured,” the Court stated. .Justice Parthiban also pointed out that no marriage or child counsellors were attached to High Court judges. “The extremely important and sensitive issue in deciding and handling of custody matters, cannot be left solely and entirely with the Judge, who is not endowed with knowledge of child psychology or in a position to comprehend contextual single-parenting syndrome imparting the minors,” the judge observed..The Court also expressed grave concern towards the fact that even when the children are brought to interact with a judge, they are brain-washed by the parents for some time preceding the hearing.“In such situation, the task before a Judge is to come up with an ad-hoc ill-judged arrangement forcing his or her solution, on the children and the embittered parents,” the single-judge opined..On the other hand, Family Courts function with effective assistance of marriage counsellors and child psychologists and both parents and the minors have the benefit of being examined by the Counsellors and psychologists on a regular basis..Therefore, the Court said that time has come to re-examine the jurisdictional issue particularly “in the face of the trending proliferating matrimonial discords.”.In view of the above, the Court proceeded to discuss the legal background of the reference. It was stated that custody and guardianship are matters covered under Section 7 of the Family Courts Act and would, thus, be exclusively heard and decided by the Family Court..Attention was drawn to the judgment in Mary Thomas, a Full Bench decision, on the basis of which the current the custody and guardianship jurisdiction of High Court was in place.The Mary Thima judgment had said:"After the constitution of the Family Court for the Madras area, the Original Jurisdiction of the High Court in respect of matters that may fall under the Explanation of S.7 of the Act is not ousted and the High Court can continue to exercise its jurisdiction notwithstanding the coming into force of the Family Courts Act, 1984".The decision of the Bombay High Court in Romila Jaidev Shroff v. Jaidev Rajnikant Shroff where the Mary Thomas decision was expressly dissented by a Full Bench was also discussed.“24. With utmost respect of the learned Judges of the Full Bench of Madras High Court, if one turns to the provisions of the Family Courts Act and anomalous position, that will arise under the provisions of Family Courts Act, as submitted by the defendant, it will not be possible to hold that in spite of the said provisions of the Family Courts Act, the High Court retains its Ordinary Original Civil Jurisdiction.".A judgment of the Delhi High Court in Amina Bharatram Vs. Sumant Bharatram was also brought to light where the Mary Thomas decision was dissented from..After discussing the law point, Justice Parthiban stated in no unclear terms that the Court was not inclined to straightaway hold the decision in Mary Thomas bad in law for reasons of judicial propriety, integrity and discipline.“It may not be judicious to decide so by this court sitting singly since Mary Thomas was from a Full Bench of eminence. And it is found that Delhi, Bombay and Calcutta high courts also went the route of a reference before a final pronouncement was put in place,” the single-judge said..He, therefore, directed that the matter be placed before the Chief Justice to be listed before a full bench.