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Custody gurdian case full super order Applicaion No.5445 of 2018 and O.A.Nos.539 and 540 of 2021 in O.P.No.599 of 2018 V. PARTHIBAN, J

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Applicaion No.5445 of 2018 and O.A.Nos.539 and 540 of 2021
in O.P.No.599 of 2018

V. PARTHIBAN, J

Pursuant to the order of this Court, dated 20.10.2021 passed in these cases, the learned counsel for the petitioner/mother of the minor child Priyanka and learned counsel for the respondent/father of the child, have filed Memos, dated 28.10.2021 and 27.10.2021 respectively. Out of the hospitals referred to in both the Memos and upon hearing the learned counsel on either side, this Court is of the view that the elder minor daughter, namely Priyanka and the parents (namely the petitioner and the respondent) shall be referred to counselling by appropriate Doctor in National Institute of Mental Health and Neuro Sciences (NIMHANS), located in Hosur Road/Marigowda Road, Lakkasandra, Wilson Garden, Bangalore-560 029. The appropriate Doctor in the said NIMHANS shall file a report before this Court after counselling as stated above.
2. The petitioner/mother is directed to ensure that the minor daughter is examined by the Counsellors from the above institution and she in the process, may also receive Counselling from the Doctors, who are trained in marriage counselling and child psychology.
3. The Counselling shall be initiated and completed within a period of four weeks from the date of receipt of a copy of this order. The petitioner/mother and the minor daughter Priyanka, who is grown-up enough to understand the implication, shall not create any issues while undergoing Counselling from the Child Psychologists and the Marriage Counsellor and shall extend their utmost co-operation for completion of the assignment by the Doctors and to enable them to file a detailed report before this Court.
4. On the basis of the report by the Doctors, the matter would be reviewed and further orders would be passed in the matter.
5. Post the main Original Petition itself on 10.01.2022 for hearing and for filing of the report by the Doctor(s) of the above named institution after their counselling with the parties, as indicated above.
6. The status-quo as on date, shall continue for the present.
7. It is to be observed that, day in and day out, the Dockets of this Constitutional Court are saddled with custody and guardianship matters which seem to truly belong to realm of the Family Courts constituted under the Family Courts Act, 1984. For the City of Chennai, there is a Principal Judge and seven Additional Family Courts functioning within the precincts of the High Court campus. Guardianship and custody are matters which are set out for the consideration and decision of these Family Courts under Section 7 of the aforesaid Act.
8. This Court openly expressed its doubt to several members of the Bar over the tenability of the concurrent Jurisdiction that it presently exercises on its Original Side along with Chennai Family Courts qua guardianship and custody matters. This Court felt that such cases were being escalated to this Court repetitively, despite the fact that they may well be decided by the Family Court.
9. However, if these cases really belonged here, we have to keep our Constitutional oath and administer justice as we do day in and day out. But if these cases did not belong here, it is equally our function as the highest Court in this State to park these cases where they really belong. With these prefatory observations, I go on to discuss and delineate why a reference is necessary to settle this important Jurisdictional question.
10. While dealing with the most sensitive issue of the custody of the minor(s), the Courts must be sufficiently and adequately equipped with architecture to deal with the cries of children being tossed from one parent to the other. Invariably, decisions are taken to grant, refusing visitation rights, temporary custody on the basis of the brief interaction with the minors in the Chambers of the Judge. The interplay of emotion of the parties during the brief period of interaction, hardly make the decision-making a welcome one. The decisions are taken from the opinions drawn from the peripheral parleys, with all probability, the Judge having no clue at all which party deserves grant of custody and in whose custody, albeit temporary or otherwise, the interest of the minors, is secured.
11. There are no marriage or child counsellors attached to the Judges concerned who deal with custody matters. The entire exercise from the experience of this Court, has become nominal and the outcome of such interaction betray-wise and insightful judgment of the Judge. 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.
12. In such situation, the task before a Judge is to come up with an ad-hoc ill-judged arrangement forcing his or her solution, on the children and the embittered parents. As a matter of fact, this Court has been a witness to the repeated complaints of wilful violation by the parents in honouring temporary or ad-hoc arrangement put in place by the Judge. While dealing with such complaints (contemptuous conduct of the parents), this Court, though dissuaded from wielding a stick as in the case of the normal contempt matters, yet, made to realise unworkability of such arrangement forced upon the children and the parents as well. Ultimately, in whose interest the power to grant or refuse custody is exercised ironically, resulting in taking a toll on the minor’s welfare and development being caught in the embattlement of the emotive parents. Most importantly, final decisions in the O.Ps. are not forthcoming within a reasonable time and many a time, if parties are bitterly opposed to each other (in most cases), it takes years to pass final orders in the O.Ps. In such cases, the Court is forced to take a call on short, long durational visitation rights, temporary custody, etc. Adding woes to the weary parties, there is complete break-down of continuity in overseeing any arrangement that has been put in place by the Judge concerned at a particular point of time. Changes frequently happen in the postings affecting continuous workability of any visitation arrangements consequent on the efforts of the Judge concerned.
13. On the other hand, the Family Courts are functioning with effective assistance of marriage counsellors and child psychologists. Both parents and the minors have the benefit of being examined by the Counsellors and psychologists on a regular basis to assess the well-being of the minors in all respects in the complex matrimonial disputes where parents are at logger heads not willing to see eye to eye. The child or children in many cases are being used by one parent having custody to inflict irreparable ramifications on the psyche of the other parent denying custody alleging some self-serving reasons which cannot be fathomed out by the Court in a cursory interaction meetings with the parties.
14. Therefore, in the High Court, decision is taken towards permanent, temporary custody or visitation rights for long and short period, as a result of reductive approach adopted by the Court. Such important and hyper-sensitive issue relating to the custody of the minors, cannot be left to the vagaries of the system, as prevailed in the Court today in the Original Side of the Court. Therefore, time has come to take a re-look on the entire jurisdictional issue, particularly, in the face of the trending proliferating matrimonial discords.
15. In such scenario, any interim arrangement or even ordering main Original Petitions (O.Ps). may run in the conflict with pending counselling before the Family Court and also impacting the proceedings pending before the Family Court. Further, availability of concurrent jurisdiction would lend legitimacy to forum shoppers. Such dual power centres, one, confined only to the custody matter and the other, though clothed with encompassing justification trying every issue including custody connected to the matrimony, yet found to deal only with truncated part of the dispute in cases where G.W.O.Ps. (Guardian and Wards Act Original Petitions) are pending consideration before this Court. Such divided consideration between two Courts in respect of dispute relating to one family, may take away an opportunity of finding a comprehensive settlement/agreement in the matter. Exercising concurrent jurisdiction in custody matters along with Family Courts established under the Family Courts Act, 1984 is baneful for more than one reason. Estranged parents would have to necessarily approach the Family Court to sort out their matrimonial discord, be it dissolution of marriage or restitution of conjugal rights, etc. This part of the major cause of action and the reliefs for the disenchanted parents are only available within the framework of the Family Courts Act, 1984, i.e. Family Courts.
16. In the proceedings before the Family Court, custody of minor children is always an intertwined issue to be addressed with a view to come up with a consensus or limited understanding, while dealing with the main O.Ps. instituted by either of the parents. While so, many Guardian O.Ps. have been routinely filed before the Court invoking vintage provisions of the Letters Parent, despite the fact that the matrimonial O.P. between the parents, is pending consideration before the Family Court. This Court has been a witness quite often where parties are simultaneously involved in counselling by the marriage counsellors before the Family Court negotiating/praying for the custody of the children on one hand and the other before this Court seeking permanent/interim custody, visitation rights, for short and long duration pending disposal of the G.W.O.Ps.
17. The High Court simply does not possess the efficiency, nor it can spare time enough to the satisfaction of the parties owing to its engagement with the other matters. The Family Courts are exclusively established to deal with the matrimonial dispute of all kinds, which include custody of the minor children and for the benefit of all stake-holders, particularly, the children. It becomes imperative today to have a fresh look at the relevant case-laws rendered on the subject by the Honourable Supreme Court or the other High Courts.
18. Ordinarily, disputes, inter-alia, pertaining to child custody and guardianship, must be heard and decided by the Family Courts at Chennai, constituted under the Family Courts Act, 1984. Explanation (g) appended to Section 7(1) of the Family Courts Act, 1984, makes this position clear. For ease of reference, Section 7 insofar as it is material, runs thus:
“Section 7: Jurisdiction:- (1) Subject to the other provisions of this Act, a Family Court shall–
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation:- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:–
(a) …
….
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor”.

19. Where a Family Court has been established in an area, it would have exclusive jurisdiction over the matters set out in the Explanation to Section 7(1). This position is also made clear by Section 8 of the Family Courts Act, and is no longer res-integra, in view of the decision of the Honourable Supreme Court in the case of Balaram Yadav Vs. Fulmaniya Yadav (reported in 2016 (13) SCC 308), wherein, it was observed as follows:
“7. Under Section 7(1) Explanation (b), a suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the civil courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws.”
(emphasis supplied)

20. Further, 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.
21. The question therefore is, 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 Act, 1984 ?
22. The basis of the custody and guardianship jurisdiction presently in vogue in the Original Side, is the decision of a Full Bench of this Court in the case of Mary Thomas Vs. K.E.Thomas (reported in AIR 1990 Madras 100 (FB) = 1989 (2) LW 344 (FB) ). This decision arose out of suit between spouses pitted against each other in a matrimonial dispute. The Full Bench held as under:
“17. … …
“After the constitution of the Family Court for the Madras area, the Original Jurisdiction of the High Court in respect of matters that may fall under the Explanation of S.7 of the Act is not ousted and the High Court can continue to exercise its jurisdiction notwithstanding the coming into force of the Family Courts Act, 1984” “.

23. Section 8 of the Family Courts Act, 1984 declares that the Family Courts established under the Act would have exclusive Jurisdiction in respect of matters set out in Section 7(1) of that Act. Section 8, insofar as it is material, reads thus:
“Section 8. Exclusion of jurisdiction and pending proceedings — Where a Family Court has been established for any area,–(a) no district court of any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section.
.. …”.

24. The crux of the issue is whether the High Court, on its Original Side, is a District Court for the purposes of Section 8 of the Family Court Act, 1984. The Family Courts Act, 1984 does not define a District Court. However, Section 2(e) of the Family Courts Act states as follows:
“Section 2:–Definitions: In this Act, unless the context otherwise requires,–
.. ..
(e) all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code.”

25. Section 2(4) of the Code of Civil Procedure (i.e. CPC) defines a “District” as under:
“Section 2: Definitions: In this Act, unless there is anything repugnant in the subject or context,–
.. …
(4) “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court.”

26. Even though Section 2(4) purports to define a ‘District’, it is clear from a plain reading of the definition that the expression serves to define the ‘jurisdiction of a principal Civil Court of original jurisdiction’, including the Original Side of the High Court. Thus, Section 2(4) unambiguously states that the High Court, on its Original Side, would be the principal Civil Court of Original Jurisdiction, and would fall within the net of the aforesaid definition of “District” under the CPC.
27. In Raja Soap Factory Vs. S.P.Shantharaj (AIR 1965 SC 1449), the Honourable Supreme Court considered the meaning of the expression “District Court” occurring in the Trade and Merchandise Marks Act, 1958. The Supreme Court concluded that the High Court, on its Original Side, was a “District Court” for the purposes of the Act, and held as under:
“3. .. .. The expression “District Court” has by virtue of Section 2(e) of Act 43 of 1958 the meaning assigned to that expression in the Code of Civil Procedure, 1908. Section 2(4) of the Code defines a “district” as meaning the local limits of the jurisdiction of a Principal Civil Court — called the District Court — and includes the local limits of the ordinary original civil jurisdiction of a High Court. If therefore a High Court is possessed of ordinary original civil jurisdiction, it would, when exercising that jurisdiction be included, for the purpose of Act 43 of 1958, in the expression “District Court” “.
(emphasis supplied)

28. It is therefore, clear that if the definition under Section 2(4) of the CPC applies, then there is no escape from the conclusion that the High Court, on its Original Side, would also be a District Court for the purposes of Section 8 of the Family Courts Act, 1984. The definition of “District” in Section 2(4) would include a High Court, on its Original Side, and would be covered by the Jurisdictional exclusion contemplated under Section 8 of the Family Courts Act, 1984.
29. The decision of the Supreme Court in Raja Soap Factory (supra) was not brought to the notice of the Full Bench of this Court in Mary Thomas (supra). 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. The Full Bench was persuaded to take the aforesaid view by placing reliance on the observations of a Division Bench of the Calcutta High Court in the case of Hyat Mahomed Vs. Shaikh Mannu (AIR 1927 Calcutta 290). In that case, it was held by the Division Bench that the word “District” in the CPC does include the local limits of a High Court in its ordinary original civil jurisdiction, still it is not legitimate to construe the words “District Court” wherever they appear to mean and include a High Court in its Ordinary Original Civil Jurisdiction. The Division Bench dissented from the view expressed by a learned Judge of the Calcutta High Court in the case of Kedarnath Mondal Vs. Gonesh Chandra Adak (reported in 1907-08 (12) CWN 446), wherein, it was held that the expression “District” occurring in Section 2(4) of the CPC did include the High Court on its Original Side. The Full Bench in Mary Thomas case, dissented from this view of the learned Judge in Kedarnath Mondal case.
30. Unfortunately, it was not brought to the notice of the Full Bench in Mary Thomas case that the decision of the learned Judge in Kedarnath Mondal’s case holding that the expression “District” included the High Court on its Original Side, was subsequently approved in a later decision of a Division Bench of the Calcutta High Court in the case of Maheswar Swain Vs. Bidyut Probha Art Press (reported in AIR 1971 Calcutta 455), after referring to all the previous Calcutta decisions and the judgment of the Supreme Court in the case of Raja Soap Factory (supra). The Division Bench has commented on its earlier decision in the case of Hyat Mahomed Vs. Shaikh Mannu (reported in AIR 1927 Calcutta 290), observing as under:
“12. We need only add that the view, which we have taken above, would be supported by the decision of Fletcher,J in Kedarnath Mondal v. Gonesh Chandra Adak, 12 Cal WN 446 (447). That decision, although relating to a different Act, would support our point of view on principle, as the Act, considered there, was, so far as the present point is concerned, almost in pari materia with the Copyright Act. Our view would also be supported, on principle, by the observations in the Bench decision of this Court in Samir Kumar Banerjee v. Sm.Sujata Banerjee, (1966) 70 Cal WN 633 and the decision of the Supreme Court in Raja Soap Factory v. S.P.Shantharaj, AIR 1965 SC 1449 at p.1450. The decision of this Court, reported in Shaikh Hyat Mahomad v. Shaikh Mannu, 45 Cal LJ 71: AIR 1927 Cal 290 would be clearly distinguishable and would have no application here. But we may point out that the comments, made therein, against the decision in (1908) 12 Cal WN 446 (447) may require reconsideration, as the earlier decision (Hafiz Aminuddin Ahmed v. G.L.Garth, (1899) 3 Cal WN 91), which was taken as the basis for those comments, would itself be distinguishable and would not support the same.”
(emphasis supplied)

31. The decision of the Full Bench in Mary Thomas, has been expressly dissented by a Full Bench of the Bombay High Court in Romila Jaidev Shroff Vs. Jaidev Rajnikant Shroff (AIR 2000 Bombay 356), which was a case concerning an identical question as the case on hand. It is interesting to note that the Bombay High Court in the case of Kanak Vinod Mehta Vs. Vinod Dulerai Mehta (AIR 1991 Bombay 337), had initially followed the decision of the Full Bench in Mary Thomas’s case.
32. However, a learned Single Judge of the Bombay High Court noticed that the decision of the Honourable Supreme Court in Raja Soap Factory case, had not been brought to the notice of the Division Bench in the case of Kanak Vinod Mehta (supra) and the matter was therefore, referred to a Full Bench. The Full Bench of the Bombay High Court over-ruled Kanak Vind Mehta Vs. Vinod Dulerai Mehta (supra) and concluded that the expression “District Court” occurring in Section 8 of the Family Courts Act, 1984 must take its colour from the definition contained in Section 2(4) of the CPC, 1908, and the Full Bench, in Romila Jaidev Shroff Vs. Jaidev Rajnikant Shroff (AIR 2000 Bombay 356), observed thus:
“13. The charter was granted when the present Code was not in force. Originally, the charter of this Court was confined to the island of Bombay leaving remaining part of the State to be dealt with under the Code of Civil Procedure as may be in force from time to time. That will also include provisions of Civil Courts Act, 1869. Till the charter was amended and jurisdiction of this Court was extended, part of that territory which is not covered by Ordinary Original Civil Jurisdiction of this Court was within the jurisdiction of Thane District Court. Because of that extension, the municipal limit of the City of Bombay has become the local limits of Original Civil Jurisdiction of this Court. Section 2(4) of the Code of Civil Procedure, no doubt, refers to a District Court and with reference to the local limits of the jurisdiction of a Principal Civil Court of Original Jurisdiction, the expression is explained and meaning is assigned with a inclusive clause as to the local limits of the Ordinary Original Civil Jurisdiction of a High Court. The said local limits of the Ordinary Original Civil Jurisdiction of a High Court will therefore be a District within the meaning of Code of Civil Procedure about which there is no dispute at the bar.”

The Full Bench of the Bombay High Court (in Romila Jaidev Shroff case – supra) has expressly dissented from the Full Bench decision of this Court in Mary Thomas case, by observing as under:
“24. With utmost respect of the learned Judges of the Full Bench of Madras High Court, if one turns to the provisions of the Family Courts Act and anomalous position, that will arise under the provisions of Family Courts Act, as submitted by the defendant, it will not be possible to hold that in spite of the said provisions of the Family Courts Act, the High Court retains its Ordinary Original Civil Jurisdiction.”

33. More recently, a Division Bench of the Delhi High Court in the case of Amina Bharatram Vs. Sumant Bharatram (AIR 2016 Delhi 171), has also expressly dissented from the decision in Mary Thomas’s case and it was observed as under:
“37. This Court does not agree with the decision of the Full Bench of Madras High Court in Mary Thomas (supra) in light of the reasons given by us for the interpretation of ‘District Court’ in Sections 7 and 8 of the Act. Additionally, it appears that the Madras High Court’s decision was based on the apprehension (if we may term it so) that a High Court exercising its ordinary original civil jurisdiction cannot be equated with a District Court. However, in our opinion, the following observations of the Bombay High Court in Romila Jaidev Shroff adequately address this concern:
“22. … … Everyone accepts the fact that the Original Civil Jurisdiction of the High Court is confined to a limit and, therefore, that would be a District Court for the purpose of High Court in exercise of that jurisdiction. However, at the same time with equal striking uniformity, everywhere the learned Judges balk at an idea of treating the High Court as a District Court for all purposes of the Civil Procedure Code. In our opinion, this hesitation is uncalled for. The submission is not and could not be that once the High Court is understood to be a District Court, it would become a District Court for all purposes of the Code. It just cannot be. Apart from the Constitutional Scheme, even during pre-constitution days, the High Court is at the Apex and predominates Three Tier System operating in any States of the Country during Pre-independent Era and Post-independent Era. After onset of constitution, it is clearly enshrined in it as such. There can therefore be no doubt that the High Court is the Higher Court. It can never be a District Court.
23. At the same time when of the several High Courts of this Country some of them happen to have Original Civil Jurisdiction by very compulsion of logic as and when it exercises its jurisdiction, the High Court has to be a District Court for that limited purpose and if as a result of its inclusion in that concept if the High Court on its Original Side lose its jurisdiction, it does. It needs to be clarified that the loss of Jurisdiction will be confined only to that part of the Original Civil Jurisdiction as, like in the instant case, is relating to the matters to be dealt with under the Family Courts Act. …”

34. The other issue is whether the general jurisdiction over infants under Clause 17 of the Letters Patent of the Madras High Court, would stand excluded by the provisions of the Family Courts Act, 1984. Clause 44 of the Letters Patent makes its provisions subject to any law made by a competent Legislature. Section 20 of the Family Courts Act, 1984 also expressly over-rides the application of all other laws that are inconsistent with the provisions of the Act. Section 20 has also not been noticed by the Full Bench in Mary Thomas case.
35. 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.
36. From the above discussion based on a catena of case-laws on this vexed issue, it would be clear, evident and obvious that this court may be satisfied that this court may not be right in assuming a jurisdiction which it has been excluded from entertaining on Legislative intentment and language and the law of the land under Articel 141 of the Constitution India also appears to be on the same lines as revealed by the Apex Court in Balram Yadav and Delhi, Bombay and Calcutta High courts also towing it and the verdict in Mary Thomas ( Mad) (FB) does not seem to be good law then and as on date as well.
37. Hence, it may appear that this Court can straightaway hold that Mary Thomas (supra) verdict was no longer a good law. Accordingly, this Court may be pleased to refrain from entertaining such causes and also send all pending cases to the Family Courts within this very court complex, where they may belong. However, this Court is not inclined to go this route straightaway, for good and valid reasons of Judicial propriety, integrity and discipline.
38. 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.
39. More importantly, in near similar circumstances where a Full Bench Judgment in S.Ganapathy Vs. N.Senthilvel, dt.05.04.2016, 2016 (4) CTC 119(FB) pronounced by the Madurai Bench of this Court, was found wobbly and not good law, a learned Judge thought it fit to express his candid opinion and yet placed it before the Master of the Roster, for a similar reference appeal provision vis-a-vis Sec.372 Cr.PC, as amended, in relation to appeals/revisions under the Negotiable Instruments Act,1881.
40. The Full Bench answered reference aligned with the opinion of the learned Judge in Rajalingam Vs. Suganthalakshmi, 2020 (4) CTC 1, dt.28.05.2020 concluding that the Full Bench in Ganapathy, 2016 (4) CTC 119 (FB) was not good law. Following these direct instances, this court abides by judicial discipline and dignity to make a reference to the learned Chief Justice to consider and decide as deemed fit in the circumstances of the case.
41. Before concluding, this Court cannot be oblivious of the repetitive submissions made from the Bar on the present status and practices/procedures before the Family Courts at Chennai. The view was near unanimous that the functioning and efficacy of the proceedings to deliver justice to desperate litigants, in these sensitive causes may be less than satisfactory and may need attention. On the administrative and judicial sides of this court. Some counsel submitted that they were compelled and constrained to approach this court because of the less than effective delivery mechanism and they may even prefer Family Court, if they were more effective. The statute may contemplate the best and surrounding infrastructure may be there. Yet appearance through advocates is not guaranteed and the proceedings are not methodical and streamlined and a crowded environment is not conducive to the serve the cause of desperate litigants, is the voice heard across the Bar.
42. This Court is conscious of these submissions. The effort must be to strengthen the delivery mechanism before the Family Courts. If this court has been denuded of its jurisdiction under the Family Court Act , how pray it can assume it, more so, when Mary Thomas (supra) pronouncement does not appear to be good law. That may not be proper or advisable for a constitutional court to set an example, of assuming a jurisdiction, which it does not possess. Instead, this court feels that if and when a reference is made by the learned Chief Justice the larger bench may kindly consider these practical and logistical issues also, on the justice delivery system before Family Courts, in appropriate perspective and address them as may be deemed fit. That is, to possibly set a Template for the Family Courts to follow in dealing with such causes with efficacy and expedition to render speedy and wholesome justice. With these observations also, this court feels that a sound foundation has been set to justify the reference.

43. For all the aforesaid reasons, this Court is of the considered opinion that an authoritative pronouncement is necessary, as the matter touches the very jurisdiction of this Court on the Original Side to adjudicate disputes which is to be adjudicated by an exclusive Court set up under a Central Law.

44. The Registry, therefore, is directed to place the papers before the Honourable Chief Justice with a request that a Bench of appropriate strength may be constituted to resolve 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 ? and
(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?

28.10.2021
(2/2)
Index: Yes/no
Speaking Order: Yes
cs
Registry is directed to issue this order copy to the Director, National Institute of Mental Health and Neuro Sciences (NIMHANS), located in Hosur Road/Marigowda Road, Lakkasandra, Wilson Garden, Bangalore-560 029, Karnataka, India.

V. PARTHIBAN, J

cs

Application No.5445 of 2018,
O.A.Nos.539 and 540 of 2021
in
O.P.No.599 of 2018

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