A full Bench (comprising three judges) of the Madras High Court has come to a unanimous conclusion that only a larger Bench of five judges should decide whether the High Court can continue to exercise concurrent jurisdiction to hear child custody petitions and guardianship cases filed by estranged couples, even after the enactment of the Family Courts Act of 1984 to deal with matrimonial disputes.
Justices P.N. Prakash, M. Sundar and A.A. Nakkiran directed the Registry to place the entire case file before Chief Justice Munishwar Nath Bhandari and seek orders for the constitution of a larger Bench. The judges recalled that in October 1989, a coordinate full Bench in Mary Thomas vs Dr. K.E. Thomas had held that the High Court’s original jurisdiction would not get denuded because of Family Courts.
Since such a ruling had been passed by a Bench of co-equal strength, the judges felt that the present reference must necessarily be considered only by a larger Bench. The reference had been made by Justice V. Parthiban while dealing with a child custody case. The single judge was of the firm opinion that child custody cases and guardianship matters belonged to the realm of Family Courts and not the High Court.
While dealing with the most sensitive issue of the custody of minors, 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. Though the Family Courts had been equipped with marriage counsellors and child psychologists to ascertain the well-being of minors, no such facility was available in the High Court, the judge said.
“The High Court judges invariably take decisions on granting or refusing visitation rights or temporary custody on the basis of their brief interaction with the minors in their chambers,” he pointed out.
“The interplay of emotion of the parties during the brief period of interaction hardly makes the decision-making process a welcome one. The decisions are taken from the opinions drawn from the peripheral parleys with, [in] all probability, the judge having no clue at all as to which party really deserves grant of custody of the children, and in whose custody, albeit temporary or otherwise, the interest of the minors is secured,” Justice Parthiban lamented.
The judge went on to state: “The entire exercise, from the experience of this court, has become nominal, and the outcome of such interaction betrays wise and insightful judgment of the judge. The extremely important and sensitive issue of deciding 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 brainwashed and indoctrinated by the hegemonical parents having custody of the children for some time preceding the interaction hearings. In such a 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,” he added.
“Therefore, in the High Court, decisions on permanent or temporary custody of children or visitation rights for long or short periods were being taken as a result of a reductive approach adopted by the court. Such important and hyper-sensitive issues relating to the custody of minors could not be left to the vagaries of the system as they prevail in the High Court at present, and therefore, the time has come to take a re-look at the entire jurisdictional issue,” the judge said.
