Does Family Courts Act Oust High Court's Jurisdiction To Hear Child Custody Matters On Original Side?: Madras HC 3-Judge Bench Refers To Larger Bench

A 3-Judge Bench of the Madras High Court has referred to a larger bench, the question pertaining to High Court's jurisdiction on original side to make decisions on child custody and guardianship cases, owing to the advent of the Family Courts Act, 1984.

The bench of Justices A.A. Nakkiran, P.N Prakash and M. Sundar was constituted by the Chief Justice after Justice V. Parthiban opined that the matter must be adjudicated by constituting a larger bench.

The three-judge has now referred the issue to a larger bench since the Mary Thomas Judgment that approves simultaneous jurisdiction of High Court and Family Courts for adjudicating upon chld custody cases was rendered by a three-judge bench of the High Court in 1989.

That full bench was of co-equal strength as well as a co-ordinate bench of the current bench. In these circumstances, the current three-judge bench opined that the reference questions can be answered only after consideration by a larger bench.

To support this observation, the court relied on a Madras High Court full bench and Supreme Court three-judge bench judgments respectively,  i.e, Philip Jeyasingh Vs. The Joint Registrar of Co-operative Societies (1992) and Commissioner of Central Excise, Indore Vs. Grasim Industries Limited (2016).

In Philip Jeyasingh, the bench observed that a decision of Full Bench is binding on a subsequent Full Bench until it is overruled by a higher court or a larger Bench. It also clarified that such a judgment can only be reconsidered by a larger bench constituted by Chief Justice.

In Grasim Industries Limited, the Supreme Court held that when two co-ordinate benches take opposing viewpoints on the same issue/ issues, another co-ordinate bench cannot examine those issues or express any opinion on the merits of either viewpoints.

Therefore, the three-judge bench directed the registry to place the matter before Chief Justice Munishwar Nath Bhandari for the constitution of a larger bench.

The single bench of Justice V Parthiban noted last year that family courts in an area have exclusive jurisdiction over the matters set out in the Explanation to Section 7(1) which is also made clear by Section 8 of the Family Courts Act and is no longer res-Integra because of Balaram Yadav v. Fulmaniya Yadav (2016).

This indicated that custody and guardianship are matters covered under Section 7 of the Family Courts Act, 1984 and would thus be exclusively heard and decided by the Family Court. Then, the question was whether the High Court, on its Original Side, can continue hearing matters relating to custody and guardianship which are exclusively cognizable by the Family Courts established under the Family Courts.

Justice V Parthiban also elaborated about the limitations of the High Court for exercising its jurisdiction on the original side in these matters:

"There are no marriage or child counsellors attached to the Judges concerned who deal with custody matters...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. What is more disturbing and disconcerting is that, invariably, the children who are brought for the interaction in the Chambers are brain-washed and indoctrinated by the hegemonical parents having custody of the children for some time preceding interaction hearings."

Justice V. Parthiban observed that if the definition in Section 2(4) CPC applies, then the High Court, on its original side, would also be construed as a District Court for the purpose of Section 8 of Family Courts Act and covered by the jurisdictional exclusion under Section 8 of the Act. However, in Mary Thomas, the full bench did not refer to the Supreme Court judgment in Raja Soap Factory v S.P Shantharaj (1965), the single judge bench added. The Full Bench concluded that the definition of "District" occurring in Section 2(4) does not include a High Court on its Original Side, primarily relying upon the definition of "District Judge" found in Section 2(17) of the General Clauses Act, 1897, which definition does not include the High Court on its Original Side.

As a result, in the order dated 28th October, 2021, Justice V. Parthiban expressed doubts about the concurrent jurisdiction of the High Court in determining guardianship and child custody.

"This state of affairs has been in vogue since Family Courts came into being in Chennai, and for over three decades since Mary Thomas (supra), it is perceived to be legal. Hence, 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 court remarked before placing the matter before the registry for requesting the Chief Justice to make a reference.

The court had then placed two questions to be answered in the reference which is as below:

(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?

"This Court is also conscious that the Subordinate Courts are equally, if not more competent and capable, in handling such matters. The Family Court has even the benefit of Counsellors and welfare experts to assist them in handling these sensitive issues satisfactorily. They are not found wanting on this score", Justice V. Parthiban had noted then.

Case Title: Minor & Anr v. K Vijay

Case No: O.P No. 599/ 2018

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