Madras High Court Full Bench Rules In Favour Of Original Jurisdiction Of High Court For Hearing Child Custody Cases

The five judge bench comprising of Justice PN Prakash, Justice R Mahadevan, Justice M Sunder, Justice Anand Venkatesh and Justice AA Nakkiran was constituted following reference by a three judge bench to answer the following questions:

(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?

(ii) Whether the decision of a Full Bench of this Court in Mary Thomas Vs. Dr K.E.Thomas (AIR 1990 Madras 100) is still good law?

Justice R Mahadevan, Justice M Sunder and Justice AA Nakkiran delivered the majority judgment and held that the jurisdiction of the High Court on original side is not ousted in view of explanation (g) to Section 7(1) of the Family Courts Act. They further observed that the judgement in Mary Thomas continued to be a good law.

Justice PN Prakash and Justice Anand Venkatesh however ruled against original jurisdiction of High Court and held that Mary Thomas was not a good law.

During hearing, the petitioners supported the concurrent jurisdiction of the High Court and submitted that the decision in Mary Thomas was a good law. It was submitted that the word "District Court" does not have one meaning and its meaning depends upon each act.

The petitioners had further submitted that the Madras High Court had letter patent jurisdiction and this jurisdiction could not be taken away impliedly. Thus, even though Section 8 of the Family Courts act was an ouster of jurisdiction, it did not oust the jurisdiction of the High Court. The petitioners also advocated for a harmonious construction and submitted that the jurisdiction of the High Court, that was granted through a specific legislature (Letters Patent) could not be taken away by a general legislation (Family Courts Act).

The respondents, arguing for ouster of High Court's jurisdiction submitted that the High Court's power under the Letters Patent was subject to legislative enactments. Thus if there was a law that was enacted by the Parliament or the Legislature providing something different from that provided in the Letters Patent, the same shall have authority over the Letter Patent, as provided under Clause 44 (which would prevail over Clause 17).

The respondents also submitted that matrimonial jurisdiction was not an original jurisdiction of the court. An exclusive court under the act and concurrent jurisdiction of the High Court together would not be proper. The respondents further submitted that Family Courts Act being an exclusive legislation, the parliamentary intent was to give powers to the High Court alone

Case Title: S. Annapoorni v. K Vijay

Case No: Application No 5445 of 2018