Prakash vs Padmakumari on 6 June, 2012

[Cites 8, Cited by 1]

Kerala High Court

Prakash vs Padmakumari on 6 June, 2012

In this Original Petition, the petitioner challenges Ext.P4 order passed by the Family Court, Vadakara rejecting I.A. No.735/2012 filed by him disputing the territorial jurisdiction of the Family Court to entertain O. P. No.112/2012 filed by the respondent.

2. Petitioner and respondent are husband and wife and in their wedlock the respondent had given birth to two minor children. After their marriage in 2005, the couple was residing in Mumbai, where the petitioner is employed in a multi national company. For various reasons, which are alleged in Ext.P1 petition, the details of which are irrelevant for the purpose of this case, in August, 2011 the respondent left the petitioner's house and since then, is residing in her paternal house which is situated within the jurisdiction of the Family Court, Vadakara.

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3. While so, the respondent filed O.P. No.112/2012 seeking custody of the minor children. It was in that O.P., the petitioner who was respondent therein, filed I.A. No.735/2012 contending that he is an ordinary resident of Mumbai and that the children were born and brought up and are admitted in a school in Mumbai. Therefore, the Family Court, Vadakara has no territorial jurisdiction to entertain the petition. I.A. was considered and by Ext.P4 order the Family Court overruled the objection and held that since one of the parents of the minors was a resident of Vadakara, it had territorial jurisdiction to entertain the petition. It is this order which is challenged in this petition.

4. Though notice issued in this petition was served on the respondent, she has not chosen to appear or contest the matter.

5. We heard the learned counsel for the petitioner and considered the contentions raised. Section 9(1) of the Guardians and Wards Act provides that if the application is with respect to the guardianship of the minor, it shall be OP(FC) 1524/2013 3 made to the court having jurisdiction in the place where the minor ordinarily resides. The "term ordinarily resides" is not defined in the Act. However, this expression has received judicial interpretation on different occasion. The latest judgment of this court on this aspect is the one rendered by the Division Bench of this Court in Pramod Vidyandhar Panicker V. Bindu Pramod Panicker, 2013 (1) KLT 332 where in paras 8, 9, 10 and 13 this Court held as follows:-

"8. We have given our anxious consideration into the rival submissions addressed at the Bar. Section 9 of the Guardians and Wards Act confers jurisdiction to deal with matters pertaining to guardianship and custody of the children only on that court within whose territorial limits the child ordinarily resides. The Hon'ble Supreme Court in Jeewanti v.Kishan Chandra (cited supra) dealing with the concept of 'residence' within the meaning of Section 19 clause (ii) of the Hindu Marriage Act, held that in order to give jurisdiction on the ground of 'residence' something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum. Stating that the word 'reside' is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found, their Lordships go on to say that in the ordinary sense 'residence' is more or less of a permanent character. The expression 'resides' means to make an abode for a considerable time: to OP(FC) 1524/2013 4 dwell permanently or for a length of time: to have a settled abode for a time. Justice K.T.Thomas as a Judge of this court in Chandy v. Mary Neena (cited supra) relied on the above decision of the Supreme Court and in the context of Section 9 of the Guardians and Wards Act held that the expression "ordinarily resides" connotes a regularly settled home and not a place of study where the children are obliged to dwell by force of circumstances or compulsion of parents employment. A Division Bench of this court in Sarada Nayar v. Vayankara Amma & others (cited supra) held that the expression in Section 9 of the Guardians & Wards Act "where the minor ordinarily resides" appears to have been deliberately used to exclude places to which the minor may be removed, at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor. It is laid down that the phrase"ordinarily resides" indicates ordinary residence even at the time of the presentation of presentation of the application. It is pointed out that emphasis is undoubtedly on the minor's ordinary place of residence.

9. The judgment of the Supreme Court in Nil Ratan Kundu And Another v. Abhijit Kundu (cited supra) does not expressly deal with the concept of 'ordinary residence" under Section 9 of the Guardians and Wards Act . It has only reiterated the well known proposition that in parens patriae jurisdiction the issue has to be resolved with a human touch and that due weightage must be given to the child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values. It is also laid down that the court should ascertain the child's preference. The Full Bench of this court in Poonen v.Rathi Varghese (cited supra) dealing with Section (3) clause (3) of the Divorce Act 1869, explained 'Reside or last resided together' OP(FC) 1524/2013 5 and held inter alia that the main factors to be considered in deciding the question where the parties last resided together are (1) to constitute 'residence', it is not necessary that the party or parties must have his or their own house:(2) to constitute 'residence' the stay need not be permanent it can also be temporary, so long as there is animus manendi or an intention to stay for an indefinite period; (3)"residence" will not take in a casual stay in, or a flying visit to a particular place; a mere casual residence in a place for a temporary purpose, with no indention or remaining, is not covered by the word 'reside'; (4) "residence"

connotes, something more than stay: it implies some intention to remain at a place, and not merely to pay it a casual visit: (5) by staying in a particular place, in order to constitute "residence" the intention must be to make it his or their abode or residence, either permanent or temporary (6) the expression "last resided" also means the place where the person had his last abode or residence, permanent or temporary; (7) where there has been residence together of a more permanent character, and a casual or brief residence together it is only the former that can be considered as "residence together" for determining the jurisdiction" (8) the question as to whether a particular person has chosen to make a particular place His abode, is to be gathered from the particular circumstances of each case. Strong reliance was placed by the learned counsel for the respondent in a Division Bench of this court in Vasu v.Muralidharan (cited supra) which takes the view that ordinary residence of child can be the ordinary residence of either of the parents where both the parents are living apart- if one of the spouse is not living, necessarily the only other place having jurisdiction is the place where the spouse living resides. It will be seen on a reading of this judgment that their Lordships were following an earlier judgment of this court in Prabhu v. Rajani (2007 (2) KLT SN 38).

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10. We have gone through the full text of the judgment in Prabhu's case. The observation made by the Bench in the beginning of paragraph 5 of the judgment that "the ordinary residence of the child can be the ordinary residence of either of the parents as well in a situation where both parents are living apart" is made by the Bench as a general observation without referring to any precedent. Interestingly in that case the Bench did not accept the case of the mother that as she and the child are residing at Tripunithura and as the child is admitted to a school in Tripunithura, the Ernakulam court has jurisdiction. This Court remitted the matter back to the Family Court to decide the question whether the mother who came to reside in Tripunithura recently can be said to be ordinarily residing at Tripunithura. The facts in Vasu v.Muralidharan (cited supra) will now have to be noticed. That was a case where the dispute was between the maternal grand parents of the child with whom the child was residing at the time of presentation of the application and father of the child whose ordinary place of residence was at Palakkad. The respondent in that case, the mother of the child had committed suicide and the police had in fact charge sheeted the father of the child for dowry death. Nevertheless the trial court found that place of ordinary residence of the child is not the place where the child was residing at the time of presentation of the application - place of residence of its maternal grant parents, but the same is Palakkad, the residence of the father of the child. The Division Bench referred to Prabhu v. Rajani (cited supra) and held that that the principles laid down in Prabu v. Rajani's case will apply also to cases where both the parents are living and living apart. In that view of the matter, the Division Bench held that it is the court at Palakkad, the place of residence of the father, which is having jurisdiction under Section 9 of the Guardians and Wards Act. The Division Bench however, elsewhere in the judgment has stated that the OP(FC) 1524/2013 7 question as to the ordinary residence of a minor is always a question to be decided on the facts and particulars of each case. According to us, the judgment in Vasu v. Maralidharan can apply only to the cases where the fact situation is identical to that case.

13. When the concept of ordinary residence is analysed in the context of the various decisions referred to herein before especially the judgment of the Supreme Court in Jeewanti v. Kishan Chandra (cited supra), Sarada Nayar v. Vayankara Amma & others (cited supra) and also the judgment of the Full Bench Poonen v. Rathi Varghese (cited supra) it will be seen that the first respondent, mother, is not ordinarily residing at Palarivattom within the limits of the Ernakulam Family Court. On the contrary, it can be very easily found that the child is ordinarily residing at Mumbai along with its father. There is yet another aspect which cannot go unnoticed. The principle that a minor child can be considered to be ordinarily residing at the place of ordinary residence of either of its parents is based on the theory that the parents will always provide shelter to the child. In this particular case, where the first respondent mother is lying in a semi coma condition in the hospital at Palarivattom, the above principle cannot have any application."

6. In so far as this case is concerned, the respondent claimed to be an ordinary resident of Vadakara and that therefore, according to her, the Family Court, Vadakara has jurisdiction to entertain the petition for the guardianship of the minor. As against this, the petitioner contended before the Family Court that he is a resident at Mumbai where the OP(FC) 1524/2013 8 children are also residing and are studying. Since, in a case of this type where both parents are living separately, the place of residence of the parents can be taken as the place of residence of minors. However the issue that requires to be decided by the Family Court is whether the respondent can be said to be an ordinary resident of Vadakara merely for the reason that she left her matrimonial home at Mumbai and is now residing in her paternal house. This question, which should have been decided in the light of the legal principles mentioned in the Pramod Vidyandhar Panicker's case (Supra), was neither decided nor brought to the attention of the Family Court and instead it has chosen to decide the issue on the assumption that the ordinary residence of the respondent is within Vadakara. As indicated by this Court in this judgment referred to above "mere temporary residence" will not make it "ordinary residence" and something more that including an intention to remain at the place is necessary. Therefore, we are of the view that the issue has not been properly decided by the OP(FC) 1524/2013 9 Family Court.

7. For these reasons we set aside Ext.P4 order passed by the Family Court, Vadakara and direct the Family Court to consider the matter and pass fresh orders in accordance with law as early as possible.

8. We are told that the children are studying in Mumbai and that if the children are made to come to Vadakara repeatedly that will affect their study and welfare.

Therefore, we direct that till orders are passed as directed above, further orders shall not be issued requiring the petitioner to bring the children to Vadakara.

The O.P. is disposed of as above.

ANTONY DOMINIC, JUDGE.

P. D. RAJAN, JUDGE.

nkm.

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