Bincymol P v Jayakrishnan P & V.S. Jyothi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941** **Mat.Appeal.No.56 OF 2020** ## **AGAINST THE JUDGMENT IN OP(GW) 14/2018 DATED 07-12-2019 OF FAMILY COURT, PATHANAMTHITTA** ## **APPELLANT/S:** ## **BINCYMOL P, AGED 38 YEARS,** **D/O.M.P.PONNACHAN, RESIDING AT MADAVILAYIL HOUSE, PALLLICKAL VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER LIZY PONNACHAN, AGED 62 YEARS, W/O.M.P.PONNACHAN, RESIDING AT MADAVILAYIL HOUSE, PALLICKAL VILLAGE, (PERINGANADU), ADOOR TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.K.SASIKUMAR SRI.S.ARAVIND SRI.P.S.RAGHUKUMAR** ## **RESPONDENT/S:** **1 JAYAKRISHNAN.P, AGED 38 YEARS, S/O.V.S.JYOTHI, RESIDING AT SHIVADAM, ADOOR P.O., PALLICKAL VILLAGE (PERINGANADU), ADOOR TALUK, PATHANAMTHITTA DISTRICT-691 523.** **2 V.S.JYOTHI, AGED 57 YEARS, M/O.JAYAKRISHNAN.P., RESIDING AT SHIVADAM, ADOOR P.O., PALLICKAL VILLAGE (PERINGANADU), ADOOR TALUK, PATHANAMTHITTA DISTRICT-691 523.** ## **R2 BY ADV. SRI.V.SRI NATH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.56 OF 2020 2** ## **JUDGMENT** ## **Dated this the 29th day of January 2020** ## **C.S.DIAS, J.** The petitioner in O.P(G&W)No.14/2018 on the file of the Family Court, Pathanamthitta, is the appellant in this Mat. Appeal. The respondents in the original petition are the respondents in this appeal. 2. The appellant filed the original petition before the Family Court under Sections 7,8 and 10 of the Guardian and Wards Act 1890 and Section 7(1) of the Family Courts Act, seeking to appoint her as the legal guardian of her son and grant her permanent custody. 3. It was the case of the appellant that she is married to the 1[st] respondent. A male child was born in her wedlock on 17.10.2010. The 2[nd] respondent is the mother of the 1[st] respondent. The appellant sought for her appointment as legal guardian of the child and give her the permanent custody, as she is settled in the United Kingdom and desires to ## **Mat.Appeal.No.56 OF 2020 3** take her son with her to U.K, so as to give the child better care and education. 4. The respondents were set ex-parte in the original petition. The appellant filed an affidavit in lieu of her chief examination and Exts.A1 and A2 were marked in evidence. 5. The Family Court after considering the averments in the original petition and proof of affidavit filed, came to a conclusion that the Family Court does not have the territorial jurisdiction to entertain the original petition because the child is studying in the Labour India Public School, Marangattupally, Kottayam, which is within the jurisdiction of the Family Court at Kottayam, and not within the territorial jurisdiction of Pathanamthitta District. The Family Court accordingly dismissed the original petition. 6. It is challenging the said judgment that this Mat. Appeeal is filed. 7. Heard Sri.K.Sasikumar, the learned counsel for the appellant and Sri.V.Sri Nath, ## **Mat.Appeal.No.56 OF 2020 4** the learned counsel for the 2[nd] respondent. 8. The 2[nd] respondent has filed I.A. No.1/2020 in this Mat. Appeal to accept an affidavit filed by the 2[nd] respondent stating that she has no objection in the appellant being declared as the legal guardian of the child and the child being given to her custody. She has also averred that the whereabouts of the 1[st] respondent is not known. 9. Section 9 of the Guardian and Wards Act 1890 reads as follows: _**“9** ._ _**Court having jurisdiction to entertain application** .- (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides._ _(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property._ ## **Mat.Appeal.No.56 OF 2020 5** _(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.” [emphasis supplied]_ ## 10. This Court in _**Salini v. Umasankaran**_ _**[2016 (4) KLT 1068]**_ has declared the law that the court while considering the custody application filed by a party has to arrive at a finding about the place of ordinary residence of a minor based on the attendant circumstances brought forth by the parties in the form of pleadings. ## 11. The appellant had categorically pleaded that she is residing at Pathanamthitta district, and that the respondents are also residing at Pathanamthitta district and the child is ordinarily residing within ## **Mat.Appeal.No.56 OF 2020 6** Pathanamthitta district. The only averment is that the child is presently studying in the Labour India Public school, Marangattupally, Kottayam district. 12. The Family Court, however, assumed that the child is ordinarily residing in Kottayam district, which is nobody's case, and came to a conclusion that the Court has no jurisdiction and accordingly dismissed the petition. 13. The learned counsel for the appellant as well as the 2[nd] respondent argued that the child is an ordinary resident of Pathanamthitta district. It is only to pursue his education that the child was admitted in the school Kottayam, which is only a temporary residence of the child. Therefore, the judgment passed by the Family Court is liable to be set aside. 14. In view of the pleadings and evidence on record and the law laid down in Salini (supra), and Section 9 of the Guardian and Wards Act, we have no doubt in our minds that merely because the child is pursuing his ## **Mat.Appeal.No.56 OF 2020 7** studies in Kottayam district, the Family Court, Pathanamthitta will not have jurisdiction. 15. Likewise, the Family Court has committed a rudimentary error by dismissing the original petition. If a Court has no jurisdiction to entertain an original petition, it ought to return the original petition for re-presentation to the proper court having jurisdiction as contemplated under Order VII R.11 of the Code of Civil Procedure. The course adopted by the Court in dismissing the application is also illegal, improper and erroneous. 16. In view of our finding that the child is ordinarily residing within Pathanamthitta district, we set aside the impugned judgment and direct the Family Court, Pathanamthitta, to restore original petition No.14/2018 to file, and consider and dispose of the original petition in accordance with law, as expeditiously as possible, at any rate within a period of three months from the date of **Mat.Appeal.No.56 OF 2020 8** appearance of the parties. Parties are directed to appear before the Family Court on 17.02.2020. The Mat. Appeal is allowed accordingly. **Sd/-** **K.HARILAL** **JUDGE** **Sd/-** **C.S.DIAS JUDGE** **uu**