Justice V Parthiban-“ Family not High Court is Guardian in Custody Cases”- Epochal Reference Narasimhan Vijayaraghav
Justice V Parthiban-“ Family not High Court is Guardian in Custody Cases”- Epochal Reference
Narasimhan Vijayaraghavan
Justice V Parthiban has done it again. His tenure on the Original Side has been truly Original. On 4th Dec2021, Justice V Ramasubramanian, Judge, Supreme Court, on the Madurai Bench organised platform,alluded to Sathya Nadella, Microsoft top honcho’s letter to his colleagues, “Information Technology is all about Innovation and nothing to do with Tradition”. And then the learned Judge bemoaned that “Judiciary is all about Tradition not Innovation. We rely on Old as Gold, on precedents, in the name of consistency”.
Parthiban, to be politically incorrect, a good friend of the apex court judge and this columnist, has defied this proposition. On the Original Side, ‘bedevilled with the old and antiquated’ as Judge V R Krishna Iyer, said in a different context, Justice Parthiban has kept innovating to be Original and not bound by Tradition, for the sake of being traditional. Bravo my friend!
Why this effusive preamble? Parthiban has brilliantly ‘set the cat among the pigeons, which was long overdue’ as Lord Denning said in the High Trees’ case. He has laid Para, sentence, syllable, comma, full stop to the last, as to how the Family Courts Act,1984, appears to have been wrongly construed by the Madras High Court and no less than a Full Bench in Mary Thomas in AIR 1990 Mad 100, had perpetuated this. To be followed for 31 long years now. In classic prose, which Fali S Nariman would describe as ‘purple’ in 44 Paras and 31 pages, the learned judge has laid out a cast-iron case for reference on
“(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?
He has not been thoughtless or reckless. He has been commonsensical, logical and incisive. With profundity, rare to come by, he has argued with precision tools, given but to a few of his ilk,as to why such a reference was called for. Even while going this innovative path , he has been his dignified, disciplined self, to stick by judicial propriety and integrity. Brilliant.
There was enough ammunition for him to conclude that Mary Thomas was not good law- then, and more so now – and cast away all pending and future litigations of this genre to the belly of the Family Court straightaway . A lesser mortal may have been tempted to do that. Not he. Mind you,that may have been a truly liberal streak and not improper or impermissible.
No, friend Parthiban did not fall for such oneupmanship. Not a T20 end overs heave ho. But a cucumber cool and calculated tap and nudge here and there, for a single or a brace, to commence. And then a lovely Ranjitsinhji like leg glance to the lap of the Master of Roster to ‘consider a reference’. A true marksman in Olympian mode. The reference is unlikely to fail or fall, as it has been scripted with care and chiseled to deliver, is the consensus.
Now read the abridged version of his order.
“ Order dated 28.10.2021 in
Application No.5445 of 2018,
O.A.Nos.539 and 540 of 2021 in O.P.No.599 of 2018
Application No.5445 of 2018 and O.A.Nos.539 and 540 of 2021
in
O.P.No.599 of 2018
V. PARTHIBAN, J
1. The question 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?
2. 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
The decision of a Full Bench of the Court in the case of Mary Thomas Vs. K.E.Thomas (reported in AIR 1990 Madras 100 (FB) = 1989 (2) LW 344 (FB) ). arose out of suit between spouses pitted against each other in a matrimonial dispute. It was held
“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” “.
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 was held
“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 an 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.”
Thus it held that considering the provisions of the Family Courts Act and anomalous position, that will arise under the provisions of Family Courts Act, 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.
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:
“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”.
From the above discussion based on a catena of case-law on the afore-said issue, it was held that the Full Bench (Madras High) court was not right in assuming a jurisdiction which it has been excluded from entertaining on legislative intendment and language. And thus the verdict in Mary Thomas (Mad) (FB) does not seem to be good law then and as on date as well.
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.”
And with a classic Justice Parthiban stamp :
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.”
A touch of class that Bench was not abandoning the Bar and the litigants. One is overwhelmed with such magnificence. Madras High Court can feel exalted by such pronouncements.
“Original Side is dull , drab, dreary, pedestrian, boring and sleep inducing’ said the inimitable Chief Justice M C Chagla, as he sat in Bombay High Court, in his early days. Read this Vasudevan Parthibanspeak. So interesting and enticing, except to those who may perceive themselves to be at the wrong end of his justifiable stick and ire. It is anything but full and drab et al.
This surgical reference was surely called for. The pendency pandemic before the high court did not deserve this portfolio assumed add ons. The ‘continued concentration of such causes, served as manna for the commercial self of the business minded practitioners who were focused on nothing else’ as the People’s Lawyer Daniel Sheehan, a pro bono expert, who was the brain behind NewYork Times v. Sullivan of First Amendment Free Speech famed verdict from US Supreme Court, always complained against the Bar’s ( a coterie) practices.
‘Law and Courts are for Litigants’ said Oliver Wendell Holmes. ‘ Not for Lawyers and Justices to display their wares, except in the cause of their clients”, added Justice Benjamin Cardozo. If that is so, then when law changes as under the Family Courts Act; Courts have to take note and change too . Madras High Court did not pivot. Contemporaneous pursuit of child custody and guardianship causes cannot be indulged in before the constitutional court, when High Court is ‘District Court’ under the relevant statute.
Justice Parthiban has noted the continuing mistake that appears to be clogging the burgeoning docket explosion. Even during his tenure on the Original Side, those in the know, found him thinking aloud on these lines. Hence, his verdict is not one out of the blue. It was coming. And come it has. With a loud thunder and sure not to end in a whimper.
The learned judge had ‘prepared’ thd practitioners,more than the litigants,to this possible change in mindset. Not necessarily to rid the High Court of these causes but to send them where they truly belonged.
Taking note of the concerns, anxieties, procedures and practices before the Family Courts, within the High Court compound itself, as loudly expressed by practitioners in this portfolio, the learned judge has captured them too, for appropriate consideration, if and when a reference is made.
It is a fully rounded order which addresses the interests of all stakeholders, law, academicians,litigants, practitioners, with judicial propriety, discipline, dignity and integrity of the institution kept at the very core. Unsurpassed for quote done time from this portals of this hallowed heritage institution of immense value.
A typically Parthibansque pronouncement. Interestingly, while he was under no compulsion to convince us, on the limits of his remit to make the reference, on the certain wobbly status of Mary Thomas, a Full Bench verdict of 31 years vintage, the learned judge has cautiously, not a credo he always subscribed to with his boldness at play, drawn support from Rajalingam, a Full Bench reference of similar genre, not issue. It is a revelation of substance.
All in all, it makes a fascinating read from the ordinary, run of the mill variants. Unlike the Delta and Omicron variants of a virus which are virulent , Justice Vasudevan Parthiban’s verdict appears to be a fit all Vaccine, a sort of panacea for long overdue JUSTICE. Watch this space.
( Author is practising advocate in the Madras High Court)
