The special jurisdiction of the High Court under Cl. 17 of the Letters Patent to appoint guardians for infants was limited to British subjects and became extinct after India became independent.

DAVID ANNOUSSAMY

This is an appeal under Cl. 15 of the Letters Patent against an order passed on 9-11-1988 by a learned single Judge of this Court.

2. Two matters came before him. The first one is having Diary No.18070 of 1988 in an unnumbered Original Petition of 1988. Since the papers were returned by the office of this Court on the ground that after the establishment of the Family Court, the petititon would lie only before that Court, the matter was placed before the learned single Judge, upon the contention of the petitioner's counsel that the High Court has not lost jurisdiction on the matter.

3. The second matter is Application No. 5607 of 1988 in O.M.S. No. 26 of 1987. O.M.S. No, 16 of 1987 was filed by a Christian husband for a decree for divorce from his Christian wife, the first defendant therein. By way of Application No. 5607 of 1988, the wife prayed for the transfer of O.M.S. No. 26 of 1987 to the Family Court on the contention that the High Court's jurisdiction in the matter has been put an end to by the Family Courts Act, 1984, hereinafter referred to as the Act.

4. Learned single Judge took up for determination the point whether the abovesaid two matters could be tried only by the Family Court or whether this Court had still jurisdiction to try them. Alter elaborately going through the matter, learned single Judge in a well considered Judgment held that this Court had no jurisdiction to entertain them and that both the matters were necessarily to be transferred to the Family Court for disposal in accordance with law. There is no appeal in respect of the second matter, viz., the matter relating to divorce. The present appeal is by the petitioners in the unnumbered O. P. carrying Diary No. 18070 of 1988 which was filed for appointment of the petitioners therein (foreign nationals) as guardian of an Indian minor female child.

5. Learned single Judge who has reviewed all the decisions cited by the parties came to his conclusion on the following lines :-

As per Explanation (g) to S.7(1) of the Act, the Family Court. has jurisdiction to deal with a suit or proceeding in relation to the guardianship of the person or the custody of or access to any minor. As per S.8 of the Act, from the time of the establishment of a Family Court for any area, no District Court will have jurisdiction in respect of any suit or proceedings of the nature referred to in the Explanations to sub-sec. (1) of S.7 of the Act. As per S.2(e) of the Act, all words and expressions used, but not defined in the Act and defined in the Civil P.C., 1908, shall have the meanings respectively assigned to them in the Code. Section 2(4) of the Civil P.C. defines 'district' as meaning the local limits of the jurisdiction of a principal Civil Court of original jurisdication (hereinafter called a "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court. Therefore, the original civil jutisdiation of the High Court has been excluded by virtue of S.8 of the Act. Learned single Judge further added that as per S.20 of the Act, the provisions thereof shall (have) effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Act. He referred also to the Constitution. The original jurisdiction of the High Court is not a normal jurisdiction of a High Court in the scheme of the Constitution; such original jurisdiction is a precarious one susceptible of being terminated at any time by a law of the appropriate legislature; such jurisdiction was allowed to continue as an interim measure till alternative arrangements were made, as per Art.225 of the Constitution. He therefore concluded that the original jurisdiction which vested in the High Court in respect of minors had come to an end after the Family Courts Act, 1984, Courts Act, 1984, has come into effect in tile City of Madras.

6. Since this is a m