Mat.Appeal No.737 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943 MAT.APPEAL NO.737 OF 2021** **AGAINST THE ORDER IN IA 5/2021 IN OP 186/2021 OF FAMILY COURT, MUVATTUPUZHA DATED 20.11.2021** ## **APPELLANT/PETITIONER:** DR.MUNAWAR DHANISH MOHAMMED S/O.C.H.MOHAMMAD, CHEMNAD HOUSE, PARAVANADUKKAM, KASARAGOD DISTRICT, PIN-671317. BY ADVS. ATUL SOHAN VINAI JOHN SREEJA SOHAN K. K.V.SOHAN ## **RESPONDENT/RESPONDENT:** DR.SANILA RAHIM D/O.K.H.RAHIM, SANILA MANZIL, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686673. BY ADVS. A.JAYASANKAR BABY NANDINI (CAVEATOR) K.BABY NANDINI.K. MANU GOVIND THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2022, THE COURT ON 28.01.2022 DELIVERED THE FOLLOWING: Mat.Appeal No.737 of 2021 2 ## **A.MUHAMED MUSTAQUE & C.R SOPHY THOMAS, JJ.** ------------------------------------ Mat. Appeal No.737 of 2021 ------------------------------------ Dated this the 28[th] day of January, 2022 ## **J U D G M E N T** ## **Sophy Thomas, J.** This appeal is directed against the order in I.A No.5 of 2021 in O.P No.186 of 2021 on the file of Family Court, Muvattupuzha. 2. The dispute in O.P. No.186 of 2021 is regarding the guardianship and custody of the minor child born in the lawful wedlock of the petitioner and the respondent. The wife filed the above O.P to declare her as the legal guardian of her minor son Izaan Munawar and to direct the husband to restore custody of the child with her. 3. The husband filed I.A No.5 of 2021, challenging the jurisdiction of the Family Court, Muvattupuzha. According to him, as per Section 9(1) of the Guardian & Wards Act, 1890, a petition with respect to the guardianship of the person of the minor shall be made to the District Court having jurisdiction in 3 Mat.Appeal No.737 of 2021 the place where the minor ordinarily resides. He contended that the minor ordinarily resides at Kasaragod within the jurisdiction of Family Court, Kasaragod and so, the Family Court, Muvattupuzha is not competent to entertain that O.P. 4. The wife opposed that petition contending that, their relationship became strained due to the illicit relationship of the husband, and they decided to divorce their marriage, agreeing to give permanent custody of the child with her, providing visitation right to the father. Thereafter, she resigned her job at Mangalore and came back to her paternal house at Muvattupuzha, along with the child intending to have their permanent residence there. She made arrangements for admitting the child in her district, and she was searching for a job in a nearby place. Meanwhile, the minor was taken to Kasaragod by the husband on 24.12.2020, undertaking to return the child on 15.01.2021. Since he did not keep his word, she had to approach the Family Court, Muvattupuzha. 5. The Family Court, Muvattupuzha, after hearing the rival contentions and on considering Exts.A1 to A5 from the part of the petitioner and Exts.B1 to B12 from the part of the 4 Mat.Appeal No.737 of 2021 respondent, dismissed I.A No.5 of 2021, finding that the minor Izaan Munawar ordinarily resides at Muvattupuzha and hence Family Court, Muvattupuzha has got jurisdiction to try that case. The petitioner/father has come up with this appeal, challenging the impugned order. 6. Now the point that arises for consideration is whether there is any illegality or impropriety in the impugned order, to be interfered with by this Court. 7. Learned counsel for the appellant-husband contended that, the child ordinarily resides at Kasaragod and all his documents such as passport, Aadhar card, ration card etc. are in his Kasaragod address only. He is studying in a school at Mangalore and he has to continue his education there. His father, who is a doctor, is working at Kasaragod and the child is very much attached to his father's family at Kasaragod. So, the Family Court, Muvattupuzha has no jurisdiction to entertain the O.P going by Section 9(1) of the Guardian and Wards Act. 8. The respondent-wife vehemently opposed the petition contending that, when their matrimonial relationship became strained, with the intervention of parents and relatives, they 5 Mat.Appeal No.737 of 2021 reached a consensus for divorce. As part of the consensus arrived at, the child was agreed to be with the mother permanently till he completes his schooling, reserving access and visitation right to the father. Accordingly, she shifted from Mangalore to her native place at Muvattupuzha, along with the child, intending to reside there permanently. She made arrangements for admitting the minor child in a school in her district and to procure a job for her in a nearby place. 9. In compliance with the consensus arrived at between the parties, the father took the child to his house at Kasaragod during Christmas vacation, agreeing to return the child on 15.01.2021. So, according to her, the child was intended to be with her permanently at Muvattupuzha, and the custody of the child and the short stay of the child with his father at Kasaragod will not take away the jurisdiction of the Family Court at Muvattupuzha. 10. The respondent is relying upon Exts.B1 to B12 documents to substantiate her case. Ext.B1 is a whatsapp message from the father of the appellant expressing their intention for divorce on mutual consent, and asking her views 6 Mat.Appeal No.737 of 2021 regarding custody of the child. Ext.B2 decision was agreed upon by both the parties that the child shall continue to stay with the mother till he finishes schooling, retaining visitation rights of the father and custody during vacation. Ext.B3 speaks about a temporary arrangement for the custody of the child for 15 days each, in a month till respondent's parents reach their native place from Riyadh, and the educational expenses of the child to be met by the respondent/mother. Ext.B4 series and Ext.B5 amply prove the remittance of school fee by the respondent. Ext.B6 shows that the respondent intimated the appellant's father, her intention to resign her job in Mangaloor and to shift her residence along with the child to her native place at Muvattupuzha. Ext.B7 message was sent by her to the appellant informing that, she was vacating the flat at Mangalore. On 14.11.2020, she reached her native place along with the child and on 18.11.2020, her parents returned from Riyadh. Discussions were held to settle their issues finally and after due deliberations, a draft agreement was prepared, which was marked as Ext.B8. Ext.B9 is the enquiry details, regarding the schooling of the child and Ext.B10 is the reply sent by the 7 Mat.Appeal No.737 of 2021 appellant's father. During Christmas holidays, parents of the appellant wanted to take the child to Kasaragod, on the assurance that, they will return the child on 15.01.2021. Exts.B11 and B12 are the copies of email communications between the parties in that regard. But, the child was not returned thereafter. All these documents prima facie support the case of the respondent. If the appellant is not admitting the genuineness of these documents, he is at liberty to challenge the same during trial. 11. Now the question is, which is the ordinary place of residence of the minor child Izaan Munawar, is it Kasaragod or Muvattupuzha. Admittedly, the appellant/father is permanently residing at Kasaragod. The respondent/mother, after marriage, was taken to her matrimonial home at Kasaragod. Both are Doctors by profession and in connection with their job and higher studies, they went to Mangalore. The child was studying at Mangalore while staying with his parents. But, when their relationship became strained, they decided to part their ways and the respondent/wife came back to her paternal house at Muvattupuzha along with the child. It has to be noted that the 8 Mat.Appeal No.737 of 2021 child is a 10 year old boy and he was living with his parents throughout, and after separation, with his mother till 24.12.2020. The documents produced by the respondent will show that, there were discussions regarding the custody of the child, and they arrived at a consensus, to keep the child with the mother, till he completes his schooling, reserving visitation rights and vacation custody for the father. Since there was such an agreement between the parties, the residence of the mother has to be treated as the ordinary residence of the child also. 12. When the parents are living separately due to strained relationship, the ordinary place of residence of the child has to be ascertained as to 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. In that case, actual place of residence of the minor at the time of filing the application does not necessarily determine the jurisdiction of the court. Mere factual residence at a place at the time of proceeding is not sufficient to confer jurisdiction. The expression 'ordinarily resides' connotes a regularly settled home and not a place of stay where the children are obliged to dwell by forces of Mat.Appeal No.737 of 2021 9 ## circumstances. In _**Jeewanti Pandey** vs._ _**Kishan Chandra**_ ## _**Pandey**_ (1981 KHC 712), the Apex Court observed as follows: “12. 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. 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. It is capable of being understood in its ordinary sense of having one's own dwelling permanently, as well as in its extended sense. In its ordinary sense 'residence' is more or less of a permanent character. The expression 'resides' means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has a fixed home or abode. In Webster's Dictionary, 'to reside' has been defined as meaning 'to dwell permanently or for any length of time', and words like 'dwelling place' or 'abode' are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change. If a person lives with his wife and children, in an established home, his legal and actual place of residence is the same. If a person has 10 Mat.Appeal No.737 of 2021 no established home and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides." 13. Relying on the judgment cited supra, a Division Bench of this Court in _**Divya J. Nair**_ vs. _**S.K. Sreekanth**_ (2018 (4) KHC 520) held that the actual place of residence of the minor at the time of filing the application does not necessarily determine the jurisdiction of the court. 14. In the case in hand, the child was residing with his parents at Kasaragod as well as at Mangalore, and all his documents are also in the house address of his father at Kasaragod. Since he was residing with his parents at Mangalore, they might have often visiting his paternal house at Kasaragod. But the situation changed, when his parents decided to separate and there was mutual consensus regarding custody of the minor child, that he will be with the mother. So, when the mother returned to her native place, the child also was taken along with her. Thereafter, the ordinary place of residence of the child shall be the place of residence of the mother. 15. When parents separate and there is agreement for 11 Mat.Appeal No.737 of 2021 custody of the child with one of the parents and custody is taken over accordingly, then the residence of that parent has to be treated as the ordinary place of residence of the child, however short that period may be. If one parent takes the child in exercise of his/her visitation right and continue to hold the child without returning the child to the other parent, violating the conditions of the agreement, then the parent who violated the terms of settlement cannot challenge the proceedings for guardianship and custody of the child initiated by the other parent, contending that the child now resides with him/her and so, his/her place shall be the treated as ordinary place of residence of the child for the purpose of a petition for guardianship and custody. The parent with whom the child was supposed to be in custody, either on the basis of an agreement or otherwise, and was in custody thereof, the place of residence of that parent shall be treated as the ordinary place of residence of the child, even if the child was with the other parent at the time of filing the petition, by way of violation of the terms of agreement, or even by forcibly or stealthily removing the child from the custody of the former. Mat.Appeal No.737 of 2021 12 ## 16. In _**Ruchi Majoo** vs._ _**Sanjeev Majoo**_ (2011 KHC 4512), the Apex Court observed that the word 'reside' means to dwell for a considerable time; to make one's home; live, to exist as an attribute or quality with in, to be vested: with in, extracting from Websters dictionary. 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. 17. In the case in hand, there is prima facie evidence to show that when the parties decided to separate, they reached a consensus regarding custody of the child to be with the mother and so, the place of residence of the mother shall be the ordinary place of residence of the child however short it may be. The respondent shifted her residence from Mangalore with an intention to settle at her paternal house at Muvattupuzha along with her child. So, the fact that the child stayed for a long time at his paternal house at Kasaragod when his parents were living 13 Mat.Appeal No.737 of 2021 in harmony, and all his documents are at Kasaragod address, will not take away the jurisdiction of the Family Court, Muvattupuzha since, after separation of his parents, as agreed between parties, his mother was keeping his custody and she came down to her native place along with the child intending to live there. So, the Family Court, Muvattupuzha will get jurisdiction to entertain her O.P for guardianship and custody of the child. 18. In a petition for guardianship and custody, the paramount consideration is the welfare of the child. The child being a ten year old boy, he may have his own opinion or preferences, which the Family Court shall take into account, while deciding the welfare of the child. Here, we are only at the jurisdictional issue, without going into the merits of the case. 19. Learned counsel for the respondent contended that a Divorce O.P filed by the wife also is pending before the Family Court, Muvattupuzha. Moreover, being a lady, taking into account the convenience of the parties also, it is better to continue the case before the Family Court, Muvattupuzha. Regarding jurisdictional competence of a court, convenience of Mat.Appeal No.737 of 2021 14 parties will not confer jurisdiction on the court. Since the appellant and respondent reached a consensus to separate and to keep the child under the care and custody of the mother, the place of residence of the mother shall be treated as the ordinary place of residence of the child. For the above stated reasons and circumstances, we find no ground to interfere with the finding of the lower court. So, this appeal is dismissed upholding the impugned order. No order as to costs. Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** Sd/- **SOPHY THOMAS JUDGE** smp Mat.Appeal No.737 of 2021 15 ## **APPENDIX OF MAT.APPEAL No.737/2021** APPELLANT'S ANNEXURES: |Annexure A1|TRUE COPY OF O.P 186/2021 ON THE FILE| |---|---| ||OF THE FAMILY COURT, MUVATTUPUZHA DATED| ||09.03.2021.| |Annexure A2|TRUE COPY OF THE I.A.NO.5/2021 IN| ||O.P.186/2021 BEFORE THE FAMILY COURT,| ||MUVATTUPUZHA.| |Annexure A3|TRUE COPY OF THE FILED I.A 6/2021 IN| ||O.P. 186/2021 BEFORE THE FAMILY COURT,| ||MUVATTUPUZHA DATED 16.08.2021.| |Annexure A4|TRUE COPY OF THE ORDER IN I.A. 6/2021| ||IN O.P 186/2021 DATED 16.08.2021.| |Annexure A5|TRUE COPY OF THE INTERIN ORDER IN I.A.| ||6/2021 IN O.P 186/2021 DATED| ||31.08.2021.| |Annexure A6|TRUE COPY OF THE INTERIM ORDER PASSED| ||BY THIS HON'BLE COURT IN OP(FC)| ||451/2021 DATED 14.09.2021.| |Annexure A7|TRUE COPY OF THE JUDGMENT PASSED BY| ||THIS HON'BLE COURT IN OP(FC) 451/2021| ||DATED 05.10.2021.| |Annexure A8|TRUE COPY OF THE ORDER PASSED BY THIS| ||HON'BLE COURT IN DISPOSED OP(FC)| ||451/2021 DATED 10.11.2021.| RESPONDENT'S ANNEXURES: NIL. True Copy P.S to Judge smp