Parens patriae | Madras Excessive Courtroom retains 224-year-old jurisdiction to listen to guardianship, youngster custody circumstances

By Jason Last updated Sep 17, 2022

Madras High Court retains 224-year-old jurisdiction; A five-judge bench, by a majority of 3:2, rules that the inherent jurisdiction cannot be ousted by the Family Courts Act of 1984

It is not often that the Madras High Court constitutes a five-judge bench. One such Bench was constituted this year to answer a significant question of law — Whether guardianship and child custody petitions should be filed only before the family courts or can they be filed in the Madras High Court, too, by invoking its inherent parens patriae jurisdiction over minors?

Justices PN Prakash, R Mahadevan, M Sundar, N Anand Venkatesh and AA Nakkiran heard marathon arguments for months by a battery of lawyers, with one section arguing in favor of the concurrent jurisdiction by the High Court as well as the family courts and the other contending that the jurisdiction of the High Court stands ousted after the enactment of the Family Courts Act, 1984.

Given the complicated nature of the dispute due to the parens patriae jurisdiction being exercised for over 224 years, the five-judge bench verdict was not unanimous. Instead, it upheld the argument in favor of concurrent jurisdiction by a 3:2 majority and ruled that the High Court could exercise the jurisdiction with respect to children residing not just within Chennai city but also across the State.

While Justices Prakash and Anand Venkatesh were of the view that the inherent jurisdiction could not be invoked as a matter of routine after the enactment of a law to deal with guardianship and child custody rights, Justices Mahadevan, Sundar and Nakkiran ruled that the inherent powers of constitutional courts could not be taken away by legislation.

History traced to 1798

Authoring the lead verdicts in favor of the jurisdiction ouster and jurisdiction retention arguments, Justices Prakash and Mahadevan, respectively, traced the history of the inherent power to 1798 when the Recorder’s Court, the predecessor of Madras High Court, was established. The Court of the Recorder was empowered to appoint guardians for “infants and natural fools”. In 1800, the Recorder’s Court was abolished and replaced with the Supreme Court at Madras. A Letters Patent issued by the Crown for the establishment of the Supreme Court contained a verbatim clause to that of the 1798 Charter and authorized the successor court, too, to appoint guardians. The practice continued till the passing of the Indian High Courts Act of 1861.

In exercise of powers under the 1861 Act, the Queen issued another Letters Patent on June 26, 1862, establishing the Madras High Court. Clause 16 of the 1862 Charter read, “The High Court of Judicature at Madras shall have the like power and authority with respect to the persons and estates of infants, idiots, and lunatics, whether within or without the Presidency of Madras.”

When the 1862 Charter was canceled and replaced with another Charter in 1865, Clause 17 empowered the High Court to appoint guardians but the word, ‘without’, was removed to mean that the court could exercise its jurisdiction only within the Presidency of Madras. The 1865 Letters Patent continued to be in vogue till date in view of the saving clauses under Articles 225 and 372 of the Constitution.

First judge’s view

Therefore, Justice Prakash agreed that the High Court, indeed, had been exercising inherent jurisdiction on matters of guardianship for long. However, he pointed out that a substantive law related to guardianship was virtually non-existent when the 1865 Charter came into force on December 28, 1865. The Guardianship and Wards Act (GAWA) was enacted only in 1890. It was a uniform statutory code and a secular law applicable to persons of all religions. After this enactment, the High Court had two distinct jurisdictions — inherent and statutory.

Section 9 of the GAWA stated that a petition for appointment of a guardian should be made to a district court having jurisdiction in the place where the minor ordinarily resides. Further Section 4(4) of the Act defined the term ‘district court’ to include the High Court whenever the latter exercises ordinary original civil jurisdiction of entertaining cases directly as opposed to its appellate jurisdiction.

“From a bare reading of Section 4(4), it is clear as day that a High Court would be a district court within the meaning of the Act. In other words, the High Court, while exercising its ordinary original civil jurisdiction for the city of Madras, discharges the functions as a district court under GAWA and not under its inherent jurisdiction under Clause 17 of the Letters Patent,” Justice Prakash wrote.

Consequently, since the family courts had taken over the powers of the district courts with respect to a host of issues, including guardianship, from 1984, “there is no doubt in my mind that the statutory jurisdiction formerly exercised by the High Court, under the GAWA, has now been transferred to the family court by the Family Courts Act,” the senior judge added.

Further, he said, the inherent jurisdiction could not be invoked when an express statutory provision or remedy was available. “To say that the inherent jurisdiction of the court can be routinely invoked will destroy its very character as a residual provision to cater to extraordinary cases where there is no express provision in a statute to grant relief,” he wrote.

Stating that the Bombay and Delhi High Courts, too, had taken a similar view, he held that there must be uniformity in implementing a pan-India legislation such as the Family Courts Act. He said that if the argument on concurrent jurisdiction was accepted, guardianship petitions in Mumbai and Delhi would go before family courts whereas similar petitions in Chennai would be governed by the Letters Patent. “While interpreting the provisions of a central enactment like the Family Courts Act, this court cannot remain on an island of statutory interpretation. It should not be interpreted in a manner that is calculated to produce different results in different States,” the judge concluded.

Second judge dissent

Dissenting with his views, Justice Mahadevan held that the inherent parens patriae of jurisdiction enjoyed by a superior constitutional court to protect the interests of “infants, lunatics and idiots who are incapable or not in a position to take care of themselves or to safeguard their interests” could not be viewed merely as a residual or purely supervisory jurisdiction.

“I may go so far as to say that the fields occupied by the High Court and the family court cannot be said to be one and the same in the matters of guardianship and custody. While the jurisdiction of the High Court is much larger, there may be very few areas of overlapping jurisdiction between the High Court and the Family Court,” he wrote.

Concurring with the views of senior counsel Arvind P. Datar, who led the arguments in favor of retaining the High Court’s jurisdiction in guardianship cases, the judge said the Letters Patent jurisdiction would continue to hold sway until it gets repealed expressly or taken away impliedly by a statutory enactment if the latter was a self-contained code.

“The Family Courts Act is only a procedural legislation and not a self-contained code because the substantive laws continue to be the personal laws relating to marriage, maintenance etc. As such, in the absence of any express repeal, the Letters Patent cannot be taken away by a legislation which applies to certain aspects where jurisdiction has been concurrently vested on a subordinate court,” he said.

The judge went on to rule that the inherent powers of the constitutional courts were inviolable and they could not be taken away by a legislation or even a constitutional amendment if the latter hampers the basic structure of the Constitution. He also disagreed with the view that the High Court would fall within the meaning of district court while deciding guardianship petitions.

He held that invoking the GAWA, along with or in tune with Clause 17 of the 1865 Letters Patent, “would not make the High Court a district court. It is in this regard also that I differ with the opinion of my learned brother Justice PN Prakash”, he said, before ruling that the territorial jurisdiction of the High Court on entertaining guardianship and child custody cases would extend to the entire State.

Though the Family Courts Act restricts the territorial jurisdiction of such courts to the districts in which they were situated, the judge pointed out that Clause 17 of the 1865 Letters Patent uses the expression ‘Presidency of Madras’ which later became Madras Province between 1947 and 1950 , Madras State from 1950 to 1969 and then the State of Tamil Nadu from January 14, 1969.

“The jurisdiction of the High Court under Clause 17 of the Letters Patent, by its very nature, is applicable to the whole of the State. When the High Court as the superior constitutional Court and the highest court of the State exercises jurisdiction which is inherent and in the nature of a parens patriae, it is only natural that the said jurisdiction is to be exercised all over the State,” he wrote .

Pragmatic view

Justice M. Sundar concurred with the view taken by Justice Mahadevan and listed the reasons which were both supplementary and separate. He began saying, “I am writing this order in the sanctus spirit that two men can come to bipolar opposite conclusions qua the same issue without forfeiting their right to be termed as gentlemen and noblemen.” He relied upon international conventions and pointed out that in respect of issues related to child custody and visitation rights, there was a shift from the regime of parents exercising their rights over the children to the regime of fulfilling their responsibilities towards the children. “India cannot be an exception in gravitating towards this direction,” he said.

Analyzing the issue from a pragmatic plane, too, apart from the legal standpoint, the judge took note of the submissions made by senior counsel Chitra Sampath, Geetha Ramaseshan, Arulmozhi and B. Poongkuzhali, who were regular practitioners before the family courts, that the ground situation in the latter was far from the lofty object of the Family Courts Act.

“This means that the High Court should necessarily come to the rescue of hapless minor children when they need help in some cases, even by resorting to unconventional means, if warranted. If that is not so, they will be left helpless, high and dry in unique predicaments unfortunate though,” the judge said, and opined that the High Court would be in a better position to do justice to them.

Fourth agrees with first

However, Justice Venkatesh concurred with the view taken by Justice Prakash and differed with Justices Mahadevan and Sundar. “I have had the advantage of reading the well-researched and erudite order of my learned brother Mr. Justice PN Prakash. I am in complete agreement with all the findings and conclusions therein,” he wrote, before supplementing his reasons. He pointed out that the object behind the enactment of the Family Courts Act was to constitute such courts exclusively to deal with certain matters as listed thereunder. “The contention that the High Court can concurrently exercise its powers with the Family Court is clearly without substance,” he held, making the 315-page judgment equally poised in the ratio of 2:2.

Fifth tilts the balance

Interestingly, it was just two paragraphs penned by Justice Nakkiran, after reading the orders of the other four judges, that tilted the balance in favor of retaining the High Court’s jurisdiction in guardianship and child custody cases. He agreed that the High Court’s inherent jurisdiction could be taken away only by way of an express repeal and that the Family Courts Act was only a procedural legislation.

“I have the privilege of reading the orders of the honorable Mr Justice PN Prakash, Mr Justice R Mahadevan, Mr Justice M Sundar and Mr Justice N Anand Venkatesh… I concur with the views taken by my learned brothers Justice R. Mahadevan and Justice M. Sundar,” he concluded.