HC 5-Judge Bench to Decide Concurrent Jurisdiction to Hear Child Custody Cases

A full bench, made up of three judges, ruled that the case should be heard by a wider bench

A full bench, made up of three judges, ruled that the case should be heard by a wider bench

A full bench (consisting of three judges) of the Madras High Court came to the unanimous conclusion that only a larger bench of five judges should decide whether the High Court can continue to exercise concurrent jurisdiction to hear petitions for custody and guardianship cases filed by separated persons. couples, even after the enactment of the Family Courts Act 1984 to settle marital disputes.

Judges PN Prakash, M. Sundar and AA Nakkiran ordered the Registry to lay the entire case before Chief Justice Munishwar Nath Bhandari and seek orders for the constitution of a larger bench. The judges recalled that in October 1989, a fully coordinated training in Mary Thomas vs. Dr. KE Thomas had ruled that the original jurisdiction of the High Court 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.

While dealing with the most delicate issue of the custody of minors, the courts must be sufficiently and adequately equipped with an architecture to deal with the cries of children who are thrown from one parent to another. Although the family courts were equipped with marriage counselors and child psychologists to ensure the welfare of minors, no such facilities were available at the High Court, the judge said.

“High Court judges invariably make decisions on whether to grant or deny visitation or temporary custody based on their brief interaction with minors in their chambers,” he pointed out.

“The interplay of the parties’ emotion during the brief period of interaction hardly makes the decision-making process welcome. Decisions are made on the basis of opinions drawn from peripheral discussions with, [in] in all likelihood, the judge having no idea which party really deserves the custody of the children and whose custody, even temporary or otherwise, the interests of the minors are guaranteed,” Judge Parthiban lamented.

The judge went on to say, “The whole exercise, in the experience of this court, has become nominal, and the outcome of such interaction betrays the judge’s wise and insightful judgment. The extremely important and sensitive issue of deciding custody issues cannot be left solely and entirely to the judge, who is not endowed with knowledge of child psychology, nor able to understand the contextual syndrome of single parenthood that pervades minors.

“What is more disturbing and disconcerting is that invariably the children who are brought in for the interaction in the bedrooms are brainwashed and indoctrinated by the hegemonic parents with custody of the children for some time before interaction audiences. In such a situation, the task of a judge is to come up with an ad hoc and misguided arrangement, imposing its solution on embittered children and parents,” he added.

“Therefore, in the High Court, decisions on permanent or temporary custody of children or visitation rights for long or short periods were made following a reductive approach taken by the court. Such important and hyper-sensitive issues relating to the custody of minors cannot be left to the vagaries of the system as it currently prevails in the High Court and therefore the time has come to review the whole of the ‘skills set issue,’ the judge said.

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