ASG Opposes Concurrent Jurisdiction In Baby Custody Circumstances

On day two of the hearing pertaining to the original jurisdiction of the High Court to hear child custody and guardianship matters owing to the advent of the Family Courts Act 1984, the Additional Solicitor General for Madras High Court R. Sankaranarayanan made his submissions favoring the ouster of High Court’s jurisdiction.

The reference is being heard from a full bench of Justice PN Prakash, Justice R Mahadevan, Justice M Sunder, Justice N Anand Venkatesh and Justice AA Nakkiran.

At the outset, the ASG stated that he was not appearing for the government but in his personal capacity. He elaborated the history behind the Letters Patent and discussed Clause 17 and 44 of the Letters Patent of Madras, which read as under:

Clause 17 – Jurisdiction as to infants and lunatics: – And we do further ordain that the said 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 within the presidency of Madras , as that which is now vested in the said High (‘ours immediately before the publication of these presents.
Clause 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 of the Governor-General, in cases of emergency under Section 72 of that Act and may be in all respects amended and altered thereby]

Thus, he stated that 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).

He also referred to Clause 34 and 35 which deals with testamentary and testate jurisdiction and matrimonial jurisdiction where a proviso has been added that it shall not interfere with the laws passed by the legislature in this regard. Thus, Clause 17 has to be understood in the context of Clause 34, 35 and 44, the ASG said.

He submitted that the Guardians and Wards Act along with the Family Courts Act passed by the legislature would make it clear that the jurisdiction of the High Court is excluded.

He further submitted that the definition of District provided under Section 2(4) CPC would not mean that the High Court is also a District Court. Though High Court used to exercise 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 Clause 44 of the Letters Patent.

He also stated that the ouster of jurisdiction would not mean that the High Court did not have any power at all. The ouster was only with respect to the High Court exercising jurisdiction as a High Court. He submitted 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 jurisdiction.

Significantly, the bench noted that his written submissions were made as to an Amicus Curiae, which could not be accepted. Thus, he was instructed to make necessary changes in this regard.

The matter will be considered on 15th June 2022 for further hearing.

Read Petitioners’ side of arguments here.

Case Title: S. Annapoorni v. K Vijay

Case No: Application No 5445 of 2018

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