High Court of KeralaDivision Bench2021-10-25Original petition allowed; impugned order set a...

Elna Paul Chalisserry v. Thomas Kuruvila

Case / Petition Number:OP (FC) No.477/2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.MUHAMED MUSTAQUE
DR. KAUSER EDAPPAGATH MONDAY
Judgment Date: 2021-10-25
Court Decision / Holding: The impugned order is set aside. The matter is remanded to the Family Court, Thrissur, to consider IA Nos. 2/2020 and 3/2021 after allowing both sides to produce documents establishing the child’s ordinary residence. IA 3/2021 shall be decided first; if the Court finds territorial jurisdiction, IA 2/2020 shall proceed thereafter. Both parties to appear on 17/11/2021. The original petition is allowed in the above terms.
Final Disposition: Original petition allowed; impugned order set aside; remand to Family Court, Thrissur to decide IA 3/2021 first and IA 2/2020 thereafter; appearance on 17/11/2021; documents to be considered for determining ordinary residence.

Parties to the Case

Appellants / Petitioners

Elna Paul Chalisserry

Respondents

Thomas Kuruvila

Legal Representation & Advocates

Counsels for Petitioners

• Pearly Jose Manoj Ramaswamy

Counsels for Respondents

• J. Sheeba Mariam

Case Synopsis & Summary

This High Court of Kerala, in Division Bench proceedings, hears an original petition (OP (FC) No. 477/2021) filed by Elna Paul Chalisserry challenging a common order passed in IA Nos. 2/2020 and 3/2021 in OP No. 2159/2020 of the Family Court, Thrissur, dated 20 April 2021. The background is a divorce settlement between the parties; a minor daughter, born 7 November 2012, was the subject of custody and visitation arrangements. The respondent-father had sought permanent custody via IA 2/2020, while the petitioner-wife challenged the Family Court’s territorial jurisdiction to entertain the petition by IA 3/2021 on the ground that the child’s ordinary residence is Bangalore. The Family Court had found jurisdiction, directed the child to be produced for interaction, and adjourned IA 2/2020 for interaction. The petitioner argues that the child’s ordinary residence lies in Bangalore and that Thrissur lacks territorial jurisdiction, highlighting documents such as a Bangalore Aadhaar, school certificates, and employment proof to support her claim. The court relies on established principles of residence, noting that ordinary residence requires more than a temporary stay, guided by precedents including Chandy v. Mary Baneena, Jeewanti Pandey, and Divya J. Nair. The Kerala High Court sets aside the impugned order, remands IA Nos. 2/2020 and 3/2021 to the Family Court, and directs documentary proof to be considered; IA 3/2021 is to be decided first, and if territorial jurisdiction is established, IA 2/2020 will follow. The parties are to appear on 17 November 2021. The petition is allowed in the above terms.

Provisions of Law Cited

Guardian and Wards Act, 1890 - Section 9(1)Indian Divorce Act - Section 10A

Legal Doctrines & Maxims

Ordinarily resides concept under Guardian and Wards Act, 1890; residence must be more than temporary
Residence as natural forum; an ordinarily residence should reflect a permanent home rather than transitory stay
Permanent character of residence while determining jurisdiction

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the Family Court Thrissur lacked territorial jurisdiction since the minor ordinarily resides with the petitioner in Bangalore. She submits medical, educational, and official documents evidencing Bangalore residence (AADHAAR, school certificates, and employment proof). She relies on settled law that ordinary residence requires more than a temporary stay and cites the settlement terms of prior custody arrangements, arguing that the child’s future welfare and convenience align with Bangalore, not Thrissur. She seeks remand so the court may properly assess jurisdiction first before addressing interim custody.

Contentions of Respondents

The respondent contends that at the time of the matrimonial separation the minor possessed ties with Thrissur; the Family Court had jurisdiction under the Guardian and Wards Act and Indian Divorce Act provisions. He argues that the prior order and the settlement agreement contemplated a Thrissur-centric framework for visitation and custody, and that mere relocation to Bangalore for employment does not automatically alter the child’s habitual or ordinarily residence for jurisdictional purposes.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Chandy v. Mary Baneena	1988 (1) KLT 611	Positive	The court cites that a temporary stay or transitory residence does not determine jurisdiction; ordinary residence must be more than temporary.
Jeewanti Pandey v. Kishan Chandra Pandey	AIR 1982 SC 3	Positive	Cited to reinforce that residence requires more than temporary stay and may indicate a permanent character to justify jurisdiction.
Divya J.Nair v. S.K.Sreekanth	2018 (4) KLT 620	Positive	Used to state that ordinary place of residence of the child would be the place of residence of the parents; when parents live separately, determine with whom the child resided permanently prior to filing.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 OP (FC) NO. 477 OF 2021** **AGAINST THE ORDER IN IA NOS.2/2020 & 3/2021 IN OP 2159/2020 DATED 20/4/2021 OF FAMILY COURT,THRISSUR** ## **PETITIONER/RESPONDENT IN OP 2159/2020:** ELNA PAUL CHALISSERRY, AGED 37 YEARS D/O. PAUL CHALISSERY, CHALISSERY HOUSE, AVE MARIYA VILLA, ANCHERY KURICHIRA, THRISSUR PRESENTLY RESIDING AT FLAT NO.6014, PRESTIGE TRANQUILITY, BUDGERE CROSS, BOMMENAHALLI, BANGALORE, KARNATAKA 560049. BY ADVS. PEARLY JOSE MANOJ RAMASWAMY ## **RESPONDENT/PETITIONER IN OP 2159/2020:** THOMAS KURUVILA, S/O. C.T. KURUVILA, PUTHENVEEDU HOUSE, KAROOR, ANALLUR, CHALAKUDY, THRISSUR DISTRICT-680307. BY ADV J.SHEEBA MARIAM THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON 25.10.2021 DELIVERED THE FOLLOWING: OP(FC) No.477/2021 ## -:2:- J U D G M E N T Dated this the 25[th ] day of October, 2021 ## Kauser Edappagath, J. This original petition has been filed challenging common order passed in IA Nos.2/2020 and 3/2021 in OP No.2159/2020 dated 20[th] April, 2021 on the file of the Family Court, Thrissur (for short, 'the Court below'). 2. The petitioner and the respondent are divorced spouses. A baby daughter was born to them on 7/11/2012. The original petition was filed by the respondent/father seeking permanent custody of the child. He filed IA No.2/2020 for the interim custody. The petitioner disputed the territorial jurisdiction of the Court below to entertain and try the petition on the ground that the child does not ordinarily reside within the jurisdiction of the Court below. Hence, she filed IA No.3/2021 to consider the jurisdiction issue as a preliminary issue. The Court below after hearing both sides found that it has territorial jurisdiction to try the petition. Accordingly IA No.3/2021 was dismissed. The minor OP(FC) No.477/2021 -:3:- child was directed to be produced before the Court so as to interact with the child to consider the prayer for interim custody. IA No.2/2020 was adjourned for interaction with the child. The petitioner/wife challenges the common order in IA Nos.2/2020 and 3/2021 in this original petition. 3. Heard both sides. 4. The marriage between the petitioner and the respondent was dissolved as per the order in OP No.1216/2015 by filing a joint petition u/s 10A of the Indian Divorce Act. At the time of filing the joint petition, both parties had arrived at a settlement regarding the custody of the child and they entered into a settlement agreement on 7/11/2013 which has been marked as Ext.P2. As per Clause (10) of the settlement agreement, the custody of the child was given to the petitioner subject to the visitation right of the respondent once in every month till the minor attains the age of 5 years. It was specified in the said clause that the place of visit shall be at Thrissur or nearby to Thrissur. It was further agreed that after the minor completes the age of 5 years, whenever the respondent visits Kerala, both parties shall take a decision about allowing the minor to stay with OP(FC) No.477/2021 -:4:- him. Alleging that the petitioner violated the terms of settlement, the respondent preferred original petition for permanent custody. 5. The petitioner challenged the territorial jurisdiction on the ground that the minor ordinarily resides at Bangalore along with her and, hence, the Court below has no jurisdiction to entertain and try the petition. It is not in dispute that the minor was earlier permanently residing within the jurisdiction of the Court below. There are records to show that at the time of separation of the petitioner and the respondent, the minor was residing at Thrissur along with the petitioner. However, the contention of the petitioner is that at present, she along with the minor are ordinarily residing at Bangalore. 6. S.9(1) of the Guardian and Wards Act, 1890 provides that if the application is with respect to 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. It is settled that a temporary stay or casual or transitory residence of the minor at the time of filing the petition does not necessarily determine the jurisdiction of the Court. The expression “ordinarily resides” connotes a regularly settled home and not a place of OP(FC) No.477/2021 -:5:- stay where the children are obliged to dwell by force of circumstances or compulsion of the employment of parents [ _see_ _**Chandy v. Mary Baneena**_ (1988 (1) KLT 611)]. The Apex Court in _**Jeewanti Pandey v. Kishan Chandra Pandey**_ (AIR 1982 SC 3) has 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”. Recently, a Single Judge of this Court in _**Divya J.Nair v. S.K.Sreekanth**_ (2018 (4) KLT 620) has held that “the ordinary place of residence of the child would be the place of residence of his parents and when the parents are living separately, it has to be ascertained with whom the child was residing on a permanent basis or for a considerably long period of time immediately prior to the filing of the application. Ordinary residence means more than a temporary residence. 7. The Court below found that the petitioner failed to produce documents showing the ordinary place of residence of the minor at Bangalore such as address of the residential building, documents issued by the school in which the minor is OP(FC) No.477/2021 -:6:- studying etc,. Accordingly, challenge against the jurisdiction was rejected. The petitioner has produced before this Court certain vital documents to substantiate her plea that the child is ordinarily residing at Bangalore. The original petition for permanent custody has been filed by the respondent on 14[th] December, 2020. The certificates issued by the school where the child is studying would show that even prior to that, the child was studying at Delhi Public School, Bangalore North. The petitioner is a dentist. She has produced a certificate from her employer dated 10[th] August, 2021. It would show that the petitioner is working at a dental clinic as dentist at Bangalore since February, 2020. The petitioner has also produced her latest Aadhaar card issued on 9/2/2021 in which her address is shown at Bangalore. The definite case of the petitioner is that she has contracted second marriage, got employment at Bangalore and permanently settled there. We are of the view that these documents are very relevant to decide the question of jurisdiction. The Court below rejected the challenge against jurisdiction raised by the petitioner only on the ground that she failed to produce the document to show the ordinary residence of the child. Considering all these OP(FC) No.477/2021 -:7:- facts, we are of the view that an opportunity has to be given to the petitioner to substantiate her plea that the child is ordinarily residing at Bangalore. We, in these circumstances, set aside the impugned order and remand both IA Nos.2/2020 and 3/2021 to the Court below. The Court below shall give opportunity to both sides to produce documents and thereafter shall decide IA No. 3/2021 first. If the Court below finds that it has territorial jurisdiction, it shall proceed with IA No.2/2020 thereafter. Both parties shall appear at the Court below on 17/11/2021. The original petition is allowed as above. ## **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** ## **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** ## **Rp** ## **//True copy//** **PS to Judge** OP(FC) No.477/2021 -:8:- OP(FC) No.477/2021 ## -:9:- ## **APPENDIX OF OP (FC) 477/2021** PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 19/3/2016 OF THE FAMILY COURT THRISSUR IN OP 1216/2015. Exhibit P2 TRUE COPY OF THE SETTLEMENT AGREEMENT DATED 7/11/13 BETWEEN THE PETITIONER AND THE RESPONDENT. Exhibit P3 TRUE COPY OF THE SCREEN SHOT OF THE PROFILE OF THE RESPONDENT IN THE KERALA MATRIMONY. COM FOR REMARRIAGE. Exhibit P4 TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED TO THE PETITIONER DATED 10/08/2021. Exhibit P5 TRUE COPY OF THE FEE RECEIPT OF TASHIA FOR THE YEAR 2020-21 DATED 18/3/2021. Exhibit P5 (A) TRUE COPY OF THE FEE RECEIPT OF TAHSIA FOR THE YEAR 2020-21 DATED 18/3/2021. Exhibit P6 TRUE COPY OF THE AADHAR CARD OF THE PETITIONER EVIDENCING THE PLACE OF RESIDENCE OF THE PETITIONER. Exhibit P7 TRUE COPY OF O.P. NO. 2159/2020 DATE 14/1/2020 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT THRISSUR. Exhibit P8 TRUE COPY OF I.A. NO. 2/2020 IN O P NO. 2159/2020 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT THRISSUR. Exhibit P9 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P. 2159/2020 BEFORE THE FAMILY COURT THRISSUR. OP(FC) No.477/2021 ## -:10:- Exhibit P10 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. 2/2020 BEFORE THE FAMILY COURT THRISSUR. Exhibit P11 TRUE COPY OF I.A NO. 3/2201 FILED BY THE PETITIONER BEFORE THE FAMILY COURT THRISSUR. Exhibit P12 TRUE COPY OF THE COMMON ORDER PASSED BY THE FAMILY COURT, THRISSUR ON 20/4/2021. Exhibit P13 TRUE COPY OF THE COMPUTER PRINT OUT SHOWING CASE STATUS OF OP NO. 2159/2020 BEFORE THE FAMILY COURT THRISSUR, FROM THE OFFICIAL WEB SITE OF DISTRICT COURT.