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2022 Supreme(Mad) 855
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. Prakash, R. Mahadevan, M. Sundar, N. Anand Venkatesh, A.A. Nakkiran, JJ.
S. Annapoorni – Petitioner
Versus
K. Vijay – Respondent
A.No. 5445 of 2018 in O.A. Nos. 539 & 540 of 2021 in G.W.O.P. No. 599 of 2018
Decided On : 02-09-2022
For the Petitioner:B. Poongkhulali, Advocate.
For the Respondent:A.R. Palanisaamy, Arvind P. Datar, Sr. Advocate for Rahul Unnikrishnan, R. Sankaranarayanan, Sr.Advocate, Chitra Sampath, Sr. Advocate, N. Jothi, N. Vijayaraghavan, S. Ramesh, Geetha Ramaseshan, V.R. Kamalanathan, G. Raja Ganapathy, Sricharan Rangarajan, Sudershana Sundar, K. Harishankar, K. Shakespeare, C.R. Raghavan, Sharath Chandran, Srinath Sridevan, A.K. Sriram for M/s. Kailasam Associates, V.P. Raman, P.J. Rishikesh, Abdul Mubeen, E.V. Chandru, Arulmozhi Davidson for Thomas Jacob, T.C.S. Raja Chockalingam, Vineet Subramani, R. Karthik, Karthik Ranganathan for S. Brinda, Kavitha Rameshwar, Naveen K Murthi, Advocates.
Key Points: - (!) (!) (!) - (!) (!) (!) - (!) (!) (!) - (!) (!) (!) - (!) (!) (!)
What is the status of the High Court's original side guardianship and custody jurisdiction in light of the Family Courts Act, 1984 (explanation to Sec. 7(1) and Sec. 8 and 20)?
What is the continued validity of Mary Thomas v. K.E. Thomas (AIR 1990 Madras 100) as good law regarding the ouster or preservation of High Court jurisdiction under Clause 17 of the Letters Patent?
What is the scope and territorial reach of Clause 17 of the Letters Patent for guardianship and custody matters in Tamil Nadu (i.e., whether it extends throughout the State or is confined to certain areas)?
JUDGMENT :
P.N. Prakash, J.
(Prayer: G.W.O.P. filed under Sections 3, 7 and 10 read with Section 25 of the Guardians and Wards Act, 1890 and under Order XXI Rules 2,3 and 11 of the Original Side Rules read with Clause 17 of the Letters Patent, 1865.)
To facilitate analysis and for ease of reference, the order has been divided into the following segments:
| S. No. | Sub-heading | Paragraph nos. |
| I | Backdrop to the Reference | 3-5 |
| II | Maintainability of the Reference | 6-9 |
| III | Submissions of the Jurisdiction Retention Camp | 10-18 |
| IV | Submissions of the Jurisdiction Ouster Camp | 19-26 |
| V | Does Mary Thomas require Reconsideration? | 27-48 |
| VI | The Delhi and Bombay Views | 49-59 |
| VII | Scope of Clause 17 of the Letters Patent | 60-79 |
| VIII | The Guardians and Wards Act, 1890 | 80-94 |
| IX | Inherent Jurisdiction vis-à-vis Guardians and Wards Act, 1890 | 95-105 |
| X | Impact of the Family Courts Act, 1984 | 106-126 |
| XI | Extra-Territorial jurisdiction of Clause 17 of the Letters Patent | 127-141 |
| XII | Effect of Concurrent Jurisdiction | 142 & 143 |
| XIII | Reforms in the Family Courts | 144 |
| XIV | Effect on Pending Cases | 145-148 |
| XV | Conclusions | 149 |
2. This Special Bench has been constituted to answer the following questions referred by our learned brother, V. Parthiban, J. by an order dated 28.10.2021:
“(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?”
I. BACKDROP TO THE REFERENCE
3. The matter has come up before us in the following way:
a. The contesting parties, Annapoorni and Vijay, are the parents of two children, Priyanka and Anamika, aged 12 and 6 respectively. The children were in the custody of their mother at Bangalore. It is alleged that Vijay forcibly removed the elder daughter Priyanka from the custody of Annapoorni on 22.10.2017. The conjugal life between the parties appears to have run into rough weather resulting in the lodging of police complaints and other proceedings under the Protection of Women from Domestic Violence Act, 2005.
b. Vijay filed G.W.O.P.No.20 of 2017 before the District Court, Nilgiris, seeking permanent custody and guardianship of his daughters. He followed it up with a habeas corpus petition in H.C.P.No.976 of 2017. On 30.08.2017, a Division Bench of this Court disposed of the habeas corpus petition directing the parties to work out their remedies before the District Court, Nilgiris in G.W.O.P.No.20 of 2017. However, on 19.09.2017, Vijay withdrew the aforesaid petition. In the meantime, Annapoorni approached this Court by way of the instant petition under Sections 3,7,10 and 25 of the Guardians and Wards Act, 1890, (for brevity "the G & W Act, 1890") read with Clause 17 of the Letters Patent seeking guardianship and custody of Priyanka.
c. A preliminary objection on the issue of jurisdiction was raised at the instance of Vijay on the footing that the children were born and were ordinarily residents of Coonoor in the Nilgiris District and that they were unilaterally removed to Bangalore at the instance of his wife, and that even assuming that the children were residing at Bangalore, this Court would not have jurisdiction as it was not the appropriate forum. The preliminary objection was overruled by a learned single judge of this Court, vide an order dated 08.03.2019 on the strength of two Division Bench judgments of this Court, viz., the Rajah of Vizianagaram v The Secretary of State for India [(1936) 44 L.W. 904] and Pamela Williams v Patrick Cyril Martin [AIR 1970 Mad 427].
d. Thereafter, the dockets reveal th
