Mamta Pillai and Mayadevi v. Gopinath Haridas

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE 30TH DAY OF AUGUST 2013/8TH BHADRA, 1935 OP (FC).No. 2713 of 2013 (R) ----------------------------AGAINST THE ORDER IN GOP 588/2013 of FAMILY COURT,KOLLAM PETITIONER(S): -------------------------- 1. MAMTA PILLAI, AGED 30 YEARS D/O.SADASIVAN PILLAI, SARASWATHI MANDIRAM LAKSHMI NADA, KOLLAM DISTRICT, KERALA NOW RESIDING AT FLAT NO.504-D BLOCK CONCORDE MANHATTANS, NEELADRI ROAD ELECTRONICS CITY PHASE-1, BANGALORE, KARNATAKA. 2. MAYADEVI, AGED 58 YEARS W/O.SADASIVAN PILLAI, SARASWATHI MANDIRAM LAKSHMI NADA, KOLLAM DISTRICT, KERALA NOW RESIDING AT FLAT NO.504-D BLOCK CONCORDE MANHATTANS, NEELADRI ROAD ELECTRONICS CITY PHASE-1, BANGALORE, KARNATAKA. BY ADVS.SRI.N.M.MADHU SRI.P.P.HARRIS SMT.C.S.RAJANI RESPONDENT(S): - ---------------------------- GOPINATH HARIDAS, AGED 39 YEARS S/O.SHRI.KOLLODY HARIDAS, FLAT NO.19B SYLVANIA APARTMENTS, SKYLINE IVY LEAGUE EDACHEERA JUNCTION, KAKKANAD, ERNAKULAM DISTRICT PRESENTLY RESIDING AT PLAT NO.202 AL MANZOORI BUILDING, KUWAIT STREET, P.O.BOX NO.53301 KARAMA, DUBAI, UAE. R1 BY ADV. SMT.SANGEETHA LAKSHMANA THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20.08.2013, THE COURT ON 30-08-2013 DELIVERED THE FOLLOWING: OP (FC).No. 2713 of 2013 (R) ----------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ------------------------------------- - P1- TRUE COPY OF THE G.O.P.NO.588/2013 BEFORE THE FAMILY COURT, KOLLAM. - P2- TRUE COPY OF THE I.A.NO.1430/2013 IN G.O.P.NO.588/2013 FILED BY THE PETITIONERS. - P3- TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT TO EXT.P2. - P4 SERIES- TRUE COPY OF THE DOCUMENTS PRODUCED BY THE PETITIONERS INCLUDING FEES RECEIPTS, BANK STATEMENT ETC. - P5- TRUE COPY OF THE COUNTER AFFIDAVIT DATED 21.02.2013 FILED BY THE RESPONDENT. - P6- TRUE COPY OF THE ORDER DATED 19.07.2013 IN I.A.NO.1430/2013 IN G.O.P.NO.588/2013. - P7- TRUE COPY OF THE IA NO.430/2013 IN GOP NO.1592/2012. - P8- TRUE COPY OF THE ORDER DATED 18.03.2013 IN EXT.P7 APPLICATION. TRUE COPY/ PS TO JUDGE ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** ------------------------------------------- O.P(FC).No.2713 of 2013 ------------------------------------------Dated this the 30[th] day of August, 2013 ## **JUDGMENT** ## Antony Dominic, J. 1. This original petition is filed by the respondents in OP.588/13 on the files of the Family Court, Kollam, aggrieved by Ext.P6 order passed by that court, rejecting I.A.1430/13 filed by them, disputing the competence of the Family Court, Kollam to entertain the OP filed by the respondent herein. The first petitioner and the respondent are wife and husband. Their marriage was solemnized on 28.1.2007 at Guruvayoor Temple, Thrissur. In their wedlock, a male child Arjun Gopinath Menon, was born on 27.11.2007. The second petitioner is the mother of the first petitioner. Suffice it to say that serious difference of opinion arose in the matrimonial life between the couple and presently, the husband is stationed at Dubai and the wife in India. - 2.In so far as the issue raised in this original petition is concerned, earlier, the husband had filed OP(G).1592/12 OP(FC).2713/13 2 before the Family Court, Thrissur for the custody of the minor child. In that OP, petitioners herein filed IA.1430/13 requesting for hearing the maintainability of the OP as a preliminary issue. The matter was heard and the Family Court passed Ext.P8 order on 18.3.2013, holding that it did not have territorial jurisdiction and that the petition is to be filed either in the Family Court at Palakkad or in the Family Court at Kollam. It was ordered that the OP be returned to present the same before the proper court. However, without re-presenting the petition filed before the Family court, Thrissur, respondent filed OP(G).588/13 before the Family Court, Kollam. A copy of the petition is Ext.P1. In the petition, in order to substantiate his contention that the Family Court, Kollam had jurisdiction under section 9 of the Guardians and Wards Act, 1890 the respondent averred in paragraphs 35 to 38 as follows: “35. It is submitted that the child now resides along with the Respondents shuttling between Bangalore and Kollam. Evidently, the child now stands obliged to dwell by force of circumstances to reside in both Kollam and Bangalore. It is also the grievance of this Petitioner OP(FC).2713/13 3 that First Respondent is leading a wayward life and that she is mostly out of station from Bangalore for no valid or official reason, leaving the child with maternal grandmother in Kollam. The second respondent is often found travelling to Kollam for days together abandoning the child with Kannada speaking maid servants in Bangalore. On other times, the child is taken to Kollam and left there with total strangers. That the respondents are not permanently residing in Bangalore are evident from the fact that the copies of the Caveat filed by the petitioner before the Hon'ble High Court of Kerala, sent by Registered Post with Acknowledgment Due to both the respondents were returned to the sender. 36. This petitioner is a Non Resident Indian working in private company in Dubai. Though the petitioner hails from Palakkad, the Hon'ble Family Court in Palakkad is ousted from entertaining the above O.P. as the parties have never resided in such address along with the child during their life together. The child has only made very few short visits to Palakkad. The parental home of the petitioner, at Palakkad remains closed and unoccupied as both parents of the petitioner are settled in Dubai for the last few decades. The only permanent address that this petitioner holds in Kerala is that of his apartment in Cochin as is evident from the permanent address he had furnished in the O.Ps that were filed by him before the Hon'ble Family Court, Trichur. 37. In order to conduct and contest the above said four O.Ps now pending before the Hon'ble Family Court, OP(FC).2713/13 4 Trichur, the petitioner needs to take very frequent expensive trips from Dubai to Trichur via Cochin Airport, mostly on short visits by availing tightly scheduled leave from his Office. More importantly, he has saved up all his entitled possible leave to be utilized for availing his visitation rights on the child. It would cause severe hardship, agony and harassment for the petitioner and the child if they were to each the Family Court in Bangalore with the above O.P. The petitioner and the first respondent had last resided together along with the child in Dubai. It would be unfair and would cause severe hardship to the child if the petitioner were to drag the proceedings over to a Court in Dubai. Moreover, the Courts in Dubai are not empowered to entertain any Petition filed by this petitioner regarding his child as the child nor the respondents are physically present or residing in Dubai. 38. Being so, it is submitted that the only competent Family Court in India that holds jurisdiction to entertain and adjudicate on the above O.P is this Hon'ble Court as the respondents hail from Kollam and first respondent has stated her permanent address as Saraswathi Mandiram, Lakshmi Nada, Kollam District, Kerala. There is nothing at all, either under the Guardian and Wards Act, 1890; the Hindu Minority and Guardianship Act, 1956, the Guardian and Wards Act, 1890 or the Family Courts Act, 1984 that stands as bar for this Hon'ble Court to entertain the above O.P. It is submitted that the above O.P has been filed U/s 6 & S.13 of the Hindu Minority and Guardian ship Act, 1956 & S.7 of the Family Courts Act, 1984. Sec.2 of the Hindu Minority and OP(FC).2713/13 5 Guardianship Act 1956 is explicit in terms that “The provisions of this Act shall be in addition to, and not, save hereinafter expressly provided, in derogation of, the Guardians and Wards Act, 1890.” Arjun Gopinath Menon, the child whose was born on 27/11/2007 and as such he has completed 5 years in age. Sec.13(1) of the Hindu Minority and Guardianship Act 1956 states that “In the appointment of declaration of any person as guardian of a Hindu Minor by a court, the welfare of the minor shall be the paramount consideration.” Hence, this Hon'ble Court is not ousted but holds the jurisdiction to entertain the above O.P. 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. Hence, it is only fair, proper and legal that when a petition is filed after the removal of the child to a distant place, the place to where such removal was made to be ignored for the purpose of determining the jurisdiction of this Hon'ble Court to entertain the petition.” 3.Notice in the O.P. was served on the petitioners and thereupon, they filed Ext.P2, IA.1430/13, praying to hear the maintainability of the petition as a preliminary issue. In the affidavit filed in support of the IA, in paragraphs 7 to 10, they averred thus: OP(FC).2713/13 6 “7. The minor child is not residing within the jurisdiction of this Honourable Court. 8. The minor child does not ordinarily reside within the jurisdiction of this Honourable court. The petitioner and the respondents are also not ordinarily residing within the jurisdiction of this Honourable court. Even the averments in the original petition will not show that the minor child and the respondents ordinarily resides within the jurisdiction of this Honourable court. Hence this Honourable court has no jurisdiction to entertain the above petition. 9. The original petition filed under section 6 and 13 of the Hindu Minority and Guardianship Act, 1956. As such this Original petition is also not maintainable for the relief sought in the above petition. 10. The petitioner is not legally entitled to file the above original petition before this Honourable Court. There is legal bar in proceeding with the above original petition.” - 4.The respondent filed Ext.P3 objections to Ext.P2 IA. The Family Court considered the matter and dismissed IA.1430/13 by Ext.P6 order. A reading of Ext.P6 order shows that two contentions were raised before the Family Court. First one OP(FC).2713/13 7 was that the respondent having not re-presented the petition in OP.1592/12 filed by him before the Family Court, Thrissur, abandoned his claim and therefore, is precluded from instituting a fresh OP in respect of the same subject matter. The second contention was that the minor child and the petitioners herein do not ordinarily reside within the jurisdiction of the Family Court, Kollam. For these reasons, according to them, the Family Court did not have jurisdiction to entertain the petition. The order shows that both these contentions were overruled by the Family Court. It is in this background, this OP is filed. - 5.We heard the learned counsel for the petitioners and Smt.Sangeetha Lakshmana who appeared for the respondent. - 6.Before us, the only contention urged by the learned counsel for the writ petitioners was that the minor child is not an ordinary resident of Kollam and that the first petitioner mother being employed at Bangalore is also not ordinarily residing at OP(FC).2713/13 8 Kollam. Therefore, according to him, the OP filed before the Family Court, Kollam is not maintainable. - 7.On the other hand, learned counsel for the respondent contended that the place of residence of a minor is to be ascertained with reference to the permanent residence of the guardian. According to her, the petitioners are permanent residents of Kollam. She denied the claim that the first petitioner is employed at Bangalore. She also denied the claim that the child is admitted to a school in Bangalore. Therefore, according to her, the repeated objections raised by the petitioners to the maintainability of the petitions filed by the respondent is only to harass him. On this basis, learned counsel sought dismissal of the OP. - 8.We have considered the submissions made by both sides. - 9.Before we deal with the facts of this case, we should clarify that a petitioner choses his forum and files petition with averments justifying his claim for relief from the forum chosen OP(FC).2713/13 9 by him. If that claim is disputed and the forum chosen by him cannot grant him relief on the facts established, the inevitable consequence would be the dismissal of the petition. If what is found lacking is territorial jurisdiction or pecuniary jurisdiction, instead of dismissal, the petition will be returned for presentation before the proper court. However, if it is found that the suit is not cognizable by the court where it is filed, the petition will be dismissed. Therefore, the defendant by his plea cannot force the plaintiff to go to a forum, where, on his averments he cannot go. This position, in our view, is settled and was laid down by the Full Bench of Allahabad High Court in **Ananti** v. **Channu** [AIR 1930 All 193], where, the court held thus: "The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen. If ...... he frames his suit in a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to OP(FC).2713/13 10 grant him the relief ............... If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of court to which the court belongs, the plaintiff's suit will have to be dismissed in its entirety." In its judgment in **Raizada Topandas and another** v. **M/s.Gorakhram Gokalchand** [AIR 1964 SC 1348], the Apex Court expressly approved the principles laid down by the Allahabad High Court. 10.Section 9 of the Guardians & Wards Act, 1890 provides that if the application is with respect to the guardianship of the person of a minor, it shall be made to the District Court having jurisdiction “in the place where the minor ordinarily resides”. The expression “ordinarily resides” has come up for judicial OP(FC).2713/13 11 interpretation on various occasions and in **Ruchi Majoo** v. **Sanjeev Majoo** [2011 (2) KLT 788], this expression has been interpreted by the Apex Court thus: “Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word 'ordinary' has been defined by the Black's Law Dictionary as follows: “Ordinary (Adj.) :Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual.” The word 'reside' has been explained similarly as under: “Reside: live, dwell, abide, sojourn, stay, remain, lodge. (Western- Knapp Engineering Co. v. Gillbank, C.C. A. Cal., 129 F2d 135, 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as quality, to be vested as a right. (State ex rel. Bowden v. Jensen Mo., 359 S.W.2d 343, 349.)” In Websters dictionary also the word 'reside' finds a similar meaning, which may be gainfully extracted: “1.To dwell for a considerable time; to make one's home; OP(FC).2713/13 12 live. 2. To exist as an attribute or quality with in. ## 3. To be vested: with in.” In Mrs. Annie Besant v. Narayaniah (AIR 1914 PC 41) the infants had been residing in the district of Chingleput in the Madras Presidency. They were given in custody of Mrs. Annie Besant for the purpose of education and were getting their education in England at the University of Oxford. A case was, however, filed in the District Court of Chingleput for the custody where according to the plaintiff the minors had permanently resided. Repeating the plea that the Chingleput Court was competent to entertain the application their Lordships of the Privy Council observed: “The District Court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act, 1890. By the ninth Section of that Act the jurisdiction of the court is confined to infants ordinarily residing in the district. It is in their Lordship's opinion impossible to hold that the infants who had months previously left India with a view to being educated in England and going to University had acquired their ordinary residence in the district of Chingleput.” 9. In Mst. Jagir Kaur and Anr. v. Jaswant Singh (AIR 1963 SC 1521), this Court was dealing with a case under S.488 Cr.P.C. and the question of jurisdiction of the Court to OP(FC).2713/13 13 entertain a petition for maintenance. The Court noticed a near unanimity of opinion as to what is meant by the use of the word “resides” appearing in the provision and held that “resides” implied something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words: “.......Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases there on, we would define the word “resides” thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case.....” 10. In Kuldip Nayar & Ors. v. Union of India & Ors. ((2006) 7 SCC 1), the expression “ordinary residence” as used in the Representation of People Act, 1950 fell for interpretation. This Court observed: “243. Lexicon refers to Cicutti v. Suffolk County Council ((1980) 3 All ER 689) to denote that the word “ordinarily” is primarily directed not to duration but to purpose. In this sense the question is not so much where the person is to be found “ordinarily”, in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is “ordinary” and general, rather than merely for some special or limited purpose. 244. The words “ordinarily” and “resident” have been used together in other statutory provisions as well and as per Law Lexicon they have been construed as not to require that the person should be one who is always resident or OP(FC).2713/13 14 ## carries on business in the particular place. 245. The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of S.20 of the R.P.Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency. 246. Thus, residence is a concept that may also be transitory. Even when qualified by the word “ordinarily” the word “resident” would not result in a construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being “ordinarily resident” at a particular place is incapable of ensuring nexus between him and the place in question.” 11. Reference may be made to Bhagyalakshmi and Anr. v. K.N. Narayana Rao (AIR 1983 Mad. 9), Aparna Banerjee v. Tapan Banerjee (AIR 1986 P.&H. 113), Ram Sarup v. Chimman Lal & Ors. (AIR 1952 All. 79), Smt. Vimla Devi v. Smt. Maya Devi & Ors. (AIR 1981 Raj. 211), and in re: Dr. Giovanni Marco Muzzu and etc. etc. (AIR 1983 Bom. 242), in which the High Courts have dealt with the meaning and purport of the expressions like 'ordinary resident' and 'ordinarily resides' and taken the view that the question whether one is ordinarily residing at a given place depends so much on the intention to make that place ones ordinary abode.” OP(FC).2713/13 15 11. The question whether the minor ordinarily resides at a given place, as held by the Apex Court in **Ruchi Majoo** (supra), is a question of intention, which, in turn, is a question of fact and such a question, which is not a pure question of law, is incapable of being answered without an enquiry into the factual aspects surrounding the controversy. This precise principle has been laid down by the Apex Court in its judgment in **Ruchi Majoo** (supra) where, in paragraph 8, it has been held thus: - “It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under S.9 of the Act is the 'ordinary residence' of the minor. The expression used is “Where the minor ordinarily resides”. Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy.” - 12.It is true that in **Ruchi Majoo** (supra), the Apex Court has chosen to decide this issue by itself. In paragraph 13 of the judgment, it is stated that though the court was inclined to OP(FC).2713/13 16 remand the matter for an enquiry, it decided the issue by itself on being so requested by the counsel appearing for the respondent himself. Therefore, in our view, when a disputed question of jurisdiction, which is incapable of being decided without an enquiry, is raised, the Family Court should decide on that issue only after conducting enquiry into the relevant aspects. 13.In so far as this case is concerned, the petition contains specific averments which, according to the respondent, confers jurisdiction on the Family Court at Kollam. The petitioners filed IA.1430/13, contending that the court did not have territorial jurisdiction to entertain the petition. A reading of the averments in paragraphs 8 to 10 of the affidavit filed in support of the IA would show that the averments are absolutely vague and the petitioners did not even state which court, according to them, has jurisdiction in the matter. Therefore, the endeavour of the writ petitioners, though prima facie, is to defeat the claim of the respondent, having regard to OP(FC).2713/13 17 the fact that what is raised is an issue of jurisdiction and it being a disputed mixed question of fact and law, the Family Court could not have decided it without enquiring into the matter. For the aforesaid reasons, we are unable to sustain the impugned order. 14. In such circumstances, we set aside Ext.P6 order passed by the Family Court dismissing IA.1430/13 in OP.588/13 and direct the Family Court to proceed with the trial of the OP and decide the issue of jurisdiction also and pass orders in accordance with law. Original petition is disposed of as above. Sd/ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb.