Which court has jurisdiction to hear custody and guardianship cases? Madras High Court will decide


A five-judge bench of the Madras High Court on Friday began hearing a case relating to the High Court’s concurrent jurisdiction to decide on child custody and guardianship cases, even after the enactment of the law of 1984 on family courts to deal with marital disputes.

In October 1989 a co-ordinated full bench in Mary Thomas v Dr KE Thomas held that the High Court’s original jurisdiction would not be stripped because of the family courts.

Since such a decision was made by a seat of equal strength, the judges felt that this reference should necessarily only be considered by a wider seat.

The reference had been made by Judge V. Parthiban while dealing with a child custody case. The Single Judge was a firm believer that custody cases and guardianship cases were the domain of the family courts and not the High Court.

The five judges who are part of the full bench are Judge PN Prakash, Judge R Mahadevan, Judge M Sundar, Judge N. Anand Venkatesh and Judge AA Nakkiran.

The day-long hearing, which remained inconclusive and will also continue on Monday, saw many lawyers argue at length to justify the existence and powers of a family court.

What were the arguments in court?

Senior Solicitor Arvind Datar told the bench: ‘Although the Family Courts Act is central legislation, a specific amendment should have been made to remove HC’s jurisdiction.

Elaborating further, Datar argued, “As for the district court, we have to see the territory and the main court in this area. Taking Madras district, the main court is the HC. But that does not mean that HC is automatically a district court.”

Lawyer Geeta Ram Sheshan argued that “Even though the child is not within the city limits, there are ongoing charges. In this case, the child is in Coonoor, not within the city limits. of Madras City Even though the Family Courts Act came into force, the powers of the High Court were retained to hear divorce cases.

Asked by the bench whether there is concurrent jurisdiction, how is one court superior to the other, Attorney Harishankar responds: “When something has to be issued like a warrant or an order to gain access to a minor abroad, the HC will have better authority than the DC So HC should not oust the jurisdiction Harisankar: Similarly, when both parents of the minor die and the grandparents quarrel between them, they will not go to family court since there is no marital dispute. They will have to come to HC.”


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