On the second day of the hearing concerning the High Court’s initial jurisdiction to hear custody and guardianship cases of children due to the advent of the Family Courts Act 1984, the Additional Solicitor General of the Madras High Court, R. Sankaranarayanan, presented his case for the ousting. within the jurisdiction of the High Court.
The reference is understood by a complete bank of Justice PN Prakash, Judge R Mahadevan, Justice M Sunder, Judge N Anand Venkatesh and Judge AA Nakkiran.
Initially, the ASG said he was not appearing for the government but in a personal capacity. He elaborated on the history of the Letters Patent and discussed clauses 17 and 44 of the Madras Letters Patent, which read as follows:
Article 17- Jurisdiction relating to minors and the insane: – And we further direct that the said Madras High Court of Justice shall have the same power and authority in respect of the persons and estates of children, fools and lunatics within the Madras Presidency, as is now vested in said High (‘bear just before the publication of these presents.
Article 44- Powers of Indian Legislature preserved:-[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 case of emergency under Section 72 of that Act and may be in all respects modified and modified by it]
Thus, he stated that if there were any law enacted by Parliament or the Legislature providing for anything different from that provided in the Letters Patent, that law would have authority over the Letters Patent, as provided in Section 44 (which would prevail over Article 17).
He also referred to Articles 34 and 35 which deal with testamentary and intestate jurisdiction and matrimonial jurisdiction where a proviso was added that he shall not interfere with laws passed by the legislature in this regard. Thus, Clause 17 must be understood in the context of Clauses 34, 35 and 44, the ASG said.
He argued that the Guardians and Wards Act and the Family Courts Act passed by the legislature would make it clear that the jurisdiction of the High Court is excluded.
He further argued that the definition of district provided in Article 2(4) CPC would not mean that the High Court is also a district court. Although the High Court exercised its jurisdiction as a district court, after the advent of the Family Courts Act this power was ousted by Section 8 of the Act read with Section 44 of the letters patent.
He also said ousting jurisdiction would not mean the High Court had no power. The eviction only concerned the High Court exercising its jurisdiction as a High Court. He argued that even if the court was inclined to pronounce a judgment that the family court alone has jurisdiction, in certain special circumstances the High Court could exercise its jurisdiction.
Significantly, the bench noted that his written submissions were made as amicus curiae, which could not be accepted. Thus, he was instructed to make the necessary changes in this regard.
The matter will be considered on 15e June 2022 for a new hearing.
Read the petitioners’ arguments here.
Case title: S.Annapoorni cK Vijay
Case no: Application No. 5445 of 2018