Dr. Bino Joseph PathiparamPIL v. Neena Cherian

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 21ST DAY OF MARCH 2017/30TH PHALGUNA, 1938** **OP (FC).No. 152 of 2017 ---------------------------** **AGAINST THE ORDER IN I.A.NO.2136/16 IN OP(GW.)564/2016 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 22.12.2016** **PETITIONER/RESPONDENT :** **--------------------------** **DR.BINO JOSEPH PATHIPARAMPIL, AGED 39, S/O.PATHIPARAMPIL V JOSEPH, CHANGANACHERRY P O, VAZHAPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** **RESPONDENT/PETITIONER :** **----------------------------** **NEENA CHERIAN, AGED 35, D/O.P.J.CHERIAN, HOUSE NO.UP 7/245, ULLOOR VILLAGE, MEDICAL COLLEGE P O, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, NOW RESIDING AT 10608, WALNUT BLOCK, INDU FORTUNE FIELDS, KUKATPALLY, HYDERABAD-500085, AND WORKING AT ZENOTI, QUADRANT 1 AND 2, 4TH FLOOR, CYBER TOWERS, HITECH CITY, MADHAPUR, HYDERABAD-500 081.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP (FC).No. 152 of 2017** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : TRUE COPY OF OP(G&W) NO.564/16 DATED 13.5.2016 ON THE FILE OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR.** **EXT.P2 : TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P1 DTD 19.9.2016.** **EXT.P3 : TRUE COPY OF I A 2136/16 IN EXT.P1 DTD.8.12.2016.** **EXT.P4 : TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO EXT.P3 DTD.17.11.2016.** **EXT.P5 : TRUE COPY OF THE ORDER PASSED IN I.A.2136/16 IN O.P.564/16 DATED 22.12.2016 ON THE FILE OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR.** **EXT.P6 : TRUE COPY OF THE PHOTOGRAPHS TAKEN FROM INTERNET DATED NIL.** ## **RESPONDENT'S EXHIBITS** **----------------------** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE** **ami/** ## **A.M.SHAFFIQUE & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------O.P.(F.C.)No.152 of 2017 --------------------------------------------------------------Dated this the 21[st] day of March, 2017 ## **J U D G M E N T** ## A.M.Shaffique, J. This original petition has been filed challenging the order dated 22.12.2016 in I.A.No.2136/16 in O.P.No.564/16. The original petition was filed by the petitioner herein seeking custody of the minor children invoking Section 9 of the Guardians and Wards Act, 1890. Respondent filed I.A.No.2136/16 seeking for raising a preliminary issue relating to territorial jurisdiction of the court. The court having considered the matter, observed that the court at Ettumanoor, Kottayam has no jurisdiction to entertain the petition. It is impugning the aforesaid order that this original petition is filed. 2. Learned counsel for the petitioner submits that the court below has not considered the matter in its proper perspective. It is contended that the question of territorial jurisdiction is a question of fact and law which has to be decided on the basis of pleadings and evidence in the case and O.P.(F.C.)No.152 of 2017 -:2:- therefore, the court ought to have considered the issue, only after completion of pleadings and recording of evidence. Learned counsel also placed reliance upon the judgment of this Court reported in **Salini v. Umasankaran (2016(4) KLT 1068)** to narrate the manner in which the words 'ordinarily resides' had been considered by this Court. 3. The short question to be considered in this original petition is whether the Family Court was justified in deciding the maintainability of the issue as a preliminary issue and secondly, whether the findings of the Family Court were justifiable. 4. Perusal of the averments in the petition would show that neither the petitioner nor the respondent was ordinarily residing within the jurisdiction of the court at Kottayam. In paragraph 9 of the original petition itself it is stated that the couple along with the family were residing at Bombay and thereafter in Dubai. In paragraph 9 it is stated that on 4.4.2016, the petitioner had come back to his native place. The respondent was employed in Dubai and as the said company had an associate company at Hyderabad, her plan was to join that company and work there. The respondent had gone to Bombay on 17.4.2016 and joined the Hyderabad O.P.(F.C.)No.152 of 2017 -:3:- company on 18.4.2016. At the relevant time, the children were with the petitioner at their parental house at Changanassery. On 26.4.2016, when the petitioner called the respondent, she was not available. It is further alleged that on 30.4.2016, the respondent had come to Changanassery and without the consent of the parents of the petitioner and the petitioner, the children were taken to Hyderabad, offering to bring them back within one week. This being the allegations, the question to be considered is based on Section 9(1) of the Guardians and Wards Act, 1890, which reads as follows: " **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." 5. The question to be considered is whether the minors were ordinarily residing within the jurisdiction of the Family Court at Ettumanoor. The only incident of residence of stay is after leaving the employment by the couple, they have come from Dubai and stayed at the petitioner's family house for a brief period. Even the petitioner's wife had taken custody of the children prior to the institution of the proceedings and the minors are now with the mother at Hyderabad. Children are also studying at Hyderabad. Merely for the reason that the O.P.(F.C.)No.152 of 2017 -:4:- minors had resided at their parental home for a brief period, does not mean that they were ordinarily residing at that place and the court at Ettumanoor will have the jurisdiction to entertain the original petition. Primarily they were residing at Bombay, thereafter at Dubai and presently at Hyderabad where the children are studying. It is taking note of these factors, the Family Court had observed that the said court has no jurisdiction. We do not find any infirmity in the said order. 6. Coming to the question in regard to the meaning of the words 'ordinarily resides', it depends upon the facts and circumstances of each case. Even the Division Bench of this Court held in Salini v. Umasankaran (cited supra) at paragraphs 18 and 19 as under: “18. The aspects referred supra are not exhaustive, but only illustrative indications. What emanates from the above is that in order to be ordinary residence, there must be more than a temporary residence and that must not have been occasioned out of circumstances of constraints. The deduction is that there cannot be any straight jacket formula that could be adopted by the courts dealing with issues of territorial jurisdiction in matters relating to custody of children or appointment of guardian for them. On the contrary, the guiding factors for the court should be the facts and circumstances of each case to ascertain whether the minor whose guardianship or custody is in issue, is residing ordinarily in a particular place for the purpose of assumption of jurisdiction by a family court of that place. Therefore, the facts and circumstances of each case must be looked into, to ascertain whether a person can be said to be O.P.(F.C.)No.152 of 2017 ## -:5:- ordinarily residing at a given place. The expression “ordinarily resides” connotes 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. 19. The meaning of the words 'ordinarily resides' changes and is capable of being understood differently according to the circumstances to which it is made applicable. It is not the duration of stay, that matters but the intention of the parties. But, in the case of a minor he cannot be taken to have any independent intention to reside at a particular place during his age of minority. Therefore, his intention can only be that of his/her parents and if they are living separated, then either of them with whom he/she was residing, immediately prior to the preferring of the application for appointment as guardian. In case the parents are not alive, the place of the person in whose custody he/she is or who is showing more concern about his/her welfare and upbringing, would be of relevance while deciding the question of jurisdiction of the court based on territory. The decisions referred supra would also give an indication 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.” 7. Taking into consideration the overall factual circumstances involved in the present case, there was justification on the part of the Family Court to have decided the matter as a preliminary issue, since the entire issue had been decided based on the pleadings. Taking into consideration the said facts, after having decided that the O.P.(F.C.)No.152 of 2017 ## -:6:- court had no jurisdiction to entertain the original petition, proper method to be adopted was to return the petition to be presented before the appropriate court. In fact, no such order is seen from the available records. Taking into consideration the aforesaid facts, this original petition is dismissed. However, we direct the Family Court to return the original petition to be presented before the appropriate court. Sd/- **A.M.SHAFFIQUE JUDGE** Sd/- **K.RAMAKRISHNAN JUDGE** ami/22.3.17 //True copy// P.A.to Judge