OP (FC) No. 19 of 2019

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940** **OP (FC).No. 19 of 2019** ## **AGAINST THE ORDER/JUDGMENT IN I.A.No.1695/2017 IN OP 1203/2016 of FAMILY COURT, MAVELIKKARA** ## **PETITIONERS/RESPONDENTS:** **1 V.K.GOPINATH AGED 65 YEARS H/O.LEELA, RESIDING AT VALAYATHU HOUSE, KULIKADAVINKAL, EDAKKULAM P.O., RANNI VILLAGE, PATHANAMTHITTA. 2 LEELA, AGED 57 YEARS W/O.V.K.GOPINATH, RESIDING AT VALAYATHU HOUSE, KULIKADAVINKAL, EDAKKULAM P.O., RANNI VILLAGE, PATHANAMTHITTA. BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 RAJESH PURUSHOTHAMAN, AGED 38 YEARS S/O.LATE PURUSHOTHAMAN, KARTHIKA BHAVANAM, KURATHIKADU, MANNAR P.O., MANNAR VILLAGE, ALAPPUZHA DISTRICT. 2 SOUBHAGYAM, W/O.LATE PURUSHOTHAMAN, KARTHIKA BHAVANAM, KURATHIKADU, MANNAR P.O., MANNAR VILLAGE, ALAPPUZHA DISTRICT. BY ADVS. SRI.B.PRAMOD SRI.S.K.SAJI** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11.2.2019, THE COURT ON 01.03.2019 PASSED THE FOLLOWING:** O.P.(FC) No.19/2019 :2: ## **C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.** **--------------------------------O.P.(F.C) No. 19 of 2019 ---------------------------------Dated this the 1[st] day of March, 2019** ## **J U D G M E N T** ## **T.V.ANILKUMAR,J.** Petitioners are the maternal grandparents of a minor girl child, Gangalekshmi, who is aged hardly 6 years, being born on 23.3.2005. They questioned territorial jurisdiction of the Family Court, Mavelikkara to entertain O.P(G&W) 1203/2016 filed by the respondents herein, contending that the ordinary residence of the minor child, according to them, is at Edakkulam in Ranni Village, which is within the territorial jurisdiction of the Family Court, Pathanamthitta. The objection raised in the form of I.A. 1695/2017 did not find favour with the learned Judge Family Court, Mavelikkara and accordingly through the impugned order dated 3.5.2018, the said I.A was dismissed. The said order is challenged by the aggrieved original respondents before the court below in this original petition O.P.(FC) No.19/2019 :3: filed under Article 227 of the Constitution of India. 2. The O.P. (G&W) 1203/2016 was filed by the father and grandmother of the minor Gangalakshmi, who are the respondents in this original petition. The 1[st] respondent, father of the minor, married her mother, Ashley who is now no more. Contention of the respondents herein is that, after Ashley's death, the child continued to reside with the 2[nd] respondent, grandmother, in her house at Mannar, within the territorial jurisdiction of the Family Court, Mavelikkara. The 1[st] respondent is admittedly employed in U.A.E. It is alleged that while the child was staying with the 2[nd] respondent, she was removed to the custody of petitioners on 15.5.2016 by force and consequently she now continues in the custody of the petitioners. 3. On the other hand, contention of the petitioners is that ever since the death of Ashley, their granddaughter, the minor child, continued to stay with them in a place named Edakkulam within the district of Pathanamthitta. She has been admitted in an English Medium School at Vadasserikkara in Ranni and thus she is an ordinary resident within the territorial limits of Family Court, Pathanamthitta. 4. The court below after hearing both sides and perusing O.P.(FC) No.19/2019 **==> picture [12 x 8] intentionally omitted <==** Exts.A1 to A4 records produced on behalf of the petitioners, took the view that, but for the custody of the minor child taken by force on 15.5.2016 by the respondents, she would have been an ordinary resident in Mannar and subject to the territorial jurisdiction of the Family Court, Mavelikkara. The objection raised to the maintainability on the ground of lack of jurisdiction of the Family Court, Mavelikkara was rejected by the court by refusing to act upon Ext.A1 certificate of the Headmistress of English Medium School at Vadasserikkara which indicated the stay of the child was within the local limits of Family Court, Pathanamthitta. 5. We heard the counsel appearing on both sides. 6. The question that arises for consideration is whether the court below was right in having taken up the question relating to territorial jurisdiction as a preliminary point and decided it at the threshold of the proceedings. The nature of allegations raised by the parties and their contentions show that the decision on maintainability founded on jurisdiction ought not to have been undertaken without reference to evidence on disputed facts . There is serious dispute between parties about the place where the minor ordinarily resided on the date of the original petition. When the question as regards jurisdiction relates to O.P.(FC) No.19/2019 **==> picture [12 x 8] intentionally omitted <==** law and facts, it is not lawful for the court to take it up as a preliminary issue and to decide the case itself. An issue could be disposed of at the very threshhold of the proceeding only when the objection is based on pure question of law. Under Order XIV Rule 2 of the CPC, the power of the court to dispose of a proceeding on a preliminary point arises only when the objection to the maintainability relates either to the jurisdiction or a bar created by any law for the time being in force. 7. In the present case, the issue relating to territorial jurisdiction, being a mixed question of law and fact, cannot be decided otherwise than on evidence adduced at the stage of trial. It is settled law that decision on preliminary issues shall not be undertaken unless it could rest on the issue of jurisdiction based on undisputed facts and evidence adduced by parties. Whether the child was removed by force on 15.5.2016 from its erstwhile residence at Mannar, is a disputed fact which could be decided only on evidence at the stage of trial. In our opinion, a premature finding was entered into by the court below, depriving the petitioners the opportunity to adduce evidence to prove their contentions at the stage of trial. The court below, without imbibing the precise principles of law, has concluded O.P.(FC) No.19/2019 :6: that it possessed territorial jurisdiction to entertain the Original Petition. This finding, we cannot endorse at all, for the reasons narrated above. Therefore, the impugned order is only liable to be set aside. 8. When law interdicts issue of jurisdiction based on mixed question of law and fact being taken up as preliminary issue for disposal, the corollary legal position is that, the court has no other go than to proceed with the case pending before it assuming jurisdiction, until the issue on hand is finally decided along with other issues based on the evidence adduced by parties. In the present case, therefore, the territorial jurisdiction being an issue based on facts and law, the court below has to proceed with case after postponing the decision of the said issue to the stage of trial. Till such stage is reached, the court below will proceed as if it has jurisdiction to decide all matters including petition for interim custody of the ward. Almost in a similar situation, when the territorial jurisdiction of a Munsiff court to entertain a suit for injunction was challenged, this court in _**Vengod Muslim Jama-ath and another vs. Shajahan and**_ ## _**another, [(2009) 3 KHC 647]**_ held as follows: _“The court below has to dispose of the interlocutory application with reference to the objections raised by the defendants after hearing the_ O.P.(FC) No.19/2019 :7: _counsel on both sides in accordance with law. I make it clear that in determining the merit of the injunction application as to whether the plaintiffs have a prima facie case for that discretionary relief, the court is free to form a tentative opinion on the entertainability of the suit claim, but there cannot be any conclusive finding on the question of jurisdiction or maintainability of the suit in such enquiry.”_ That means instead of undertaking the task of deciding the issue of jurisdiction finally, the court below need only have drawn a tentative satisfaction based on the materials before it for the purpose of proceeding further, with the case. 9. In view of what has been said above, the impugned order dated 3.5.2018 in I.A.1695/2017 in O.P.1203/2016 on the files of the Family Court, Mavelikkara is hereby set aside. The issue based on the question of territorial jurisdiction shall be postponed to the stage of trial and the court below will consider it along with other issues arising in the proceeding. Sd/- ## **C.K.ABDUL REHIM JUDGE** Sd/- ## **T.V.ANILKUMAR, JUDGE** Bb/al/- O.P.(FC) No.19/2019 :8: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 THE TRUE COPY OF THE OP(G&W) NO 1203/2016 ON THE FILES OF FAMILY COURT,MAVELIKKARA.** **EXHIBIT P2** - **THE TRUE COPY OF THE IA NO 1691/2017 IN OP(G&W)1203/2016 ON THE FILES OF FAMILY COURT, MAVELIKKARA.** - **EXHIBIT P3 THE TRUE COPY OF THE CERTIFICATE DATED IN 3.2.2017 ISSUED BY HEADMISTRESS, SCIENTIFIC ACADEMY ENGLISH MEDIUM SCHOOL,VADASSERIKKARA.** - **EXHIBIT P4 THE TRUE COPY OF THE CERTIFICATE NIL DATED ISSUED FROM ANGANAWADI NO 49 OF VADASSERIKKARA PANCHAYAT.** - **EXHIBIT P5 THE TRUE COPY OF THE IMMUNIZATION AND HEALTH RECORDS OF WARD.** - **EXHIBIT P6 THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED 3.2.2017 ALONG WITH MEDICAL CHART ISSUED BY DR.S.RAMALINGAM OF SUSRUTHA HOSPITAL AND DENTAL CLINIC AT MALAYALAPUZHA,PATHANAMTHITTA.** - **EXHIBIT P7 THE TRUE COPY OF THE ORDER DATED 3.5.2018 IN IA NO 1695/2017 IN OP(G&W) 1203/2016 ON THE FILES OF FAMILY COURT,MAVELIKKARA.** RESPSONDENTS EXHIBITS : NIL TRUE COPY P.S TO JUDGE AL/-