Kerala High Court
Hareendran Pillai vs Pushpalatha on 2 February, 2007
Equivalent citations: 2008(1)KLJ409, AIR 2007 (NOC) 1064 (KER.)
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, M.N. Krishnan
JUDGMENT
K.S. Radhakrishnan, Ag. C.J.
1. This appeal arised out of an order passed by the Family Court, Alappuzha under Section 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956 on a petition filed by the mother for the custody of a minor aged below five years. Contention was raised before the Family Court that the petition is not maintenable since the minor is not an "ordinary resident" of the locality so as to confer the jurisdiction on the Family Court, Alappuzha. The Family Court rejected the preliminary objection holding that the permanent residence of both the parents is within its jurisdiction and hence it should be taken that the minor's ordinarily residence is also the same. Further it was noticed that the minor was brought back from Bahrain to the place of residence of the parents within Alappuzha district and hence would confer jurisdiction on the Family Court, Alappuzha to decide the custody of the minor at the instance of the mother. Aggrieved by the order of the Family Court this appeal has been preferred.
2. Sri. K. Ramakumar, counsel appearing for the appellant, submitted that the Family Court has committed an error in holding that the petition is maintainable. Counsel submitted that permanent residence of the child is at Bahrain. Counsel submitted that the child was born at Bahrain and is not an ordinary resident within the jurisdiction of the Family Court, Alappuzha so as to confer jurisdiction on it. Counsel placed reliance on the decision of the apex court in Election Commission of India v. Manmohan Singh so as to explain the meaning of the word "ordinary resident". Counsel also placed reliance on the decision of a learned single Judge of this Court in Anitha Abraham v. Jacob Oommen in support of his contention.
3. Shri G. Sreekumar, counsel appearing for the respondent submitted that the Family Court at Alappuzha has got jurisdiction to entertain an application filed by the mother for the custody of the minor. Counsel submitted that marriage between the parties was solemnized at Kumarapuram Village in Alappuzha district and the child was born while they were at Bahrain. Child was brought back to Alappuzha art the intervention of the Embassy of India at Bahrain. Counsel submitted that the child was in the custody of the mother while at Alappuzha but was taken away by the father on 25-02-2005. Counsel submitted that the cause of action for filing the petition for the custody of the child arose at Kumarapuram, a place from where the child was removed from the custody of the mother and that place falls within the territorial jurisdiction of Family Court, Alappuzha. In support of the contention counsel placed reliance on the decision in Chandy v. Mary Beaneena 1998 (1) KLT 611 wherein the father of the minor child preferred an application under Section 25 of the Guardian and Wards Act, 1890 which states that if a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of opinion of his guardian, may make an order for his return.
4. Section 6 of the Hindu Minority and Guardianship Act, 1956 states that the natural guardian of a Hindu minor in respect of the minor's person as well as in respect of the minor's property are in the case of a boy or an unmarried girl, the father, and after him, the mother. Proviso has been added to Clause (a) of Section 6 which says that custody of a minor who has not completed the age of five years shall ordinarily be with the mother. The apex court in Rosy Jacob v. Jacob Chakramakkal held that the controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents. In Jajabhai v. Pathankhan the apex court held that where the mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother, the mother could be considered as the natural guardian of the minor girl. Learned single Judge of this court in Chandy's case, supra held that the facts and circumstances of each case must be looked into to ascertain whether a person can be said to ordinarily reside at a given place. The expression "ordinarily resides" connote a regularly settled home and not a place of stay where the children are obliged to dwell by force of circumstances or compulsion of parents' employment. But a minor can always retain the place of residence of his/her mother.
5. Section 9 of the Guardian and Wards Act deals with jurisdiction of the courts to entertain application with respect to the guardianship of the person of the minor. Sub-section (1) of Section 9 states that if the application is with respect to the guardianship of the minor it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Facts of this case would indicate that marriage of the parents was solemnized at Kumarapuram Village in Alappuzha district on 2-3-1994 and they were residing along with the minor which is within the jurisdiction of Family Court, Alappuzha. Respondent has specifically stated that she along with the minor returned to Kerala on 24-02-2005 and on the very next day, 25-02-2005 child was taken away by the appellant without her consent. The mere fact that the minor was residing at Bahrain does not mean that a petition at the instance of the mother under Section 25 of the Guardian and Wards Act read with Section 6 of he Hindu Minority and Guardianship Act be not entertained by the Family Court. Child, it was alleged, was the illegally removed from the custody of the mother and the mother preferred W.P.C. No.70 of 2005 seeking a writ of habeas corpus against the husband to produce the minor son before this court. This court disposed of the writ petition on 28-03-2005 since the father had already taken away the child to Bahrain.
6. Section 7 of the Family Courts Act, 1984 deals with jurisdiction. Clause (a) of Sub-section (1) of Section 7 states that subject to the other provisions of the Act, a Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. Clause (b) states that the Family Court shall be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation to Section 7(1) states that the suits and proceedings referred to in this sub-section are suits and proceedings referred to in Sub-clauses (a) to (g). Clause (g) refers to suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. Therefore, Clause (g) to Explanation confers jurisdiction on the Family Court to entertain suit or proceeding in relation to the guardianship of the person or the custody of any minor. In view of the above circumstances, we are of the view that Family Court, Alappuzha has got jurisdiction to entertain application under Section 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956, especially when the child is below five years of age. We may also indicate, though the father is the natural guardian of the minor above five years on that ground alone he cannot have any preferential claim since the paramount consideration is the welfare of the minor. Family Court will have to take into consideration all the aspects of the matter and decide to whom the custody of the minor has to be given
7. We. therefore find no infirmity in the order of the Family Court to be interfered by us in appeal. The appeal is dismissed.