Pramod Vidyandhar Panicker v. Bindu Pramod Panicker and Assini Kumari Chembanseritharayil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 14TH DAY OF NOVEMBER 2012/23RD KARTHIKA 1934 OP (FC).No. 3058 of 2012 (R) ---------------------------OP.1254/2012 of FAMILY COURT,ERNAKULAM PETITIONER(S)/PETITIONER: -----------------------PRAMOD VIDYANDHAR PANICKER, AGED 37 YEARS, S/O.VIDHYADHARAN PANICKER, SHILEDAR BUILDING, NEAR S G VIDYALAYA, GANDHI NAGAR, KOPARGAON AHMEDNAGAR BY ADV. SRI.MARTIN G.THOTTAN RESPONDENT(S): -------------- 1. BINDU PRAMOD PANICKER, AGED 25 YEARS W/O.PRAMOD PANICKER, CHEMBANSSERITHARAYIL,NEELIKULAM VAVVAKAVU, K.S.PURAM,KOLLAM DIST FORMERLY HAVING ADDRESS AT PLOT NO.23, SUNDAR HOUSING SOCIETY, SECTOR NO 3 E KALAMBOLI DIST, RAIGAD, MAHARASHTRA AND NOW R/A.THITTAYIL HOUSE, MORARJEE ROAD VAZHAKKALA, KAKKANAD WEST P.O.,KOCHI-30 2. ASSINI KUMARI CHEMBANSSERITHARAYIL, NEELIKULAM, VAVVAKKVU K.S.PURAM, KOLLAM DIST FORMERLY HAVING ADDRESS AT PLOT NO23 SUNDAR HOUSING SOCIETY, SECTOR NO 3E KALAMBOLI DIST, RAIGAD, MAHARASHTRA AND NOW R/A.THITTAYIL HOUSE, MORARJEE ROAD VAZHAKKALA, KAKKANAD WEST P.O.,KOCHI-30 BY ADV.SRI.SHAJ ADV.COMMISSIONER BY ADV. SRI.LATHEESH SEBASTIAN THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14-112012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(FC) NO.3058/2012 APPENDIX PETITIONER(S) EXHIBITS EXT.P1:TRUE COPY OF THE ORIGINAL PETITON NO 1254 OF 2012 FILED BEOFRE THE FAMILY COURT, EXT.P2:TRUE COPY OF THE PRELIMINARY OBJECTION FILED BEFORE THE FAMILY COURT,ERNAKULAM EXT.P3:TRUE COPY of the DISCHARGE CERTIFICATE ISSUED FROM THE SHADABDI SUPER SPECIALITY HOSPITAL, NASIK DTD 19/3/2012 EXT.P4:TRUE COPY of the DISCHARGE CERTIFICATE ISSUED FROM THE SHADABDI SUPER SPECIALITY HOSPITAL, NASIK DTD 6/4/2012 EXT.P5:TRUE COPY OF THE ORDER DTD 4/9/2012 PASSED BY THE FAMILY COURT ERNAKULAM IN OP NO 1254 OF 2012 RESPONDENTS' EXHIBITS NIL /TRUE COPY/ P.A TO JUDGE. ## **CR** ## **PIUS C.KURIAKOSE & BABU MATHEW P.JOSEPH JJ. -----------------------O.P.(F.C) . NO. 3058 OF 2012 ------------------------** Dated this the 14[th] day of November, 2012 ## **JUDGMENT** ## Pius C.Kuriakose,J This original petition under Article 227 is directed against Ext.P5 order passed by the Family Court, Ernakulam holding that Ext.P1 Original Petition (O.P.No.1254/2012) on the files of that court filed by respondents 1 and 2 is maintainable in law before that court. Ext.P1 original petition was filed under Section 7 of the Guardian & Wards Act of 1890 read with Section 7 of the Family Courts Act 1984 for a declaration that the 2[nd] respondentgrand mother of a minor child Jhanvi Pramod Panikkar, the daughter of the petitioner and the first respondent, is the Guardian of the person of the above said minor. According to Ext.P1, the first respondent, the mother of the child, is presently under treatment at Life Care Clinic at Palarivattom within the territorial limits of the Family Court, Ernakulam. She is being O.P.(FC) No. 3058 /2012 2 treated for Hypoxic ischemic brain injury sustained as a result of near hanging. As the first respondent is immobilised, bed ridden and not in a position to sign or verify the petition, she is represented by the 2[nd] respondent,her mother as next friend. It is alleged that the present state of the first respondent is the result of the attempt made by the petitioner and his parents to murder the first respondent. It is also alleged that the petitioner failed to give proper care and treatment to the first respondent and hence the first respondent was brought from Nasik and admitted at Brain and Spine Hospital at Vaikkom. From there she was discharged and shifted to Life Care Clinic at Palarivattom. The Doctor who treated the first respondent at Vaikkom is visiting the Palarivattom clinic as a consultant psychiatrist. The 2[nd] respondent is always by the side of the first respondent giving her constant care and treatment. She is assisted by her parents in the matter. The first respondent is slowly gaining recovery and there is good response to treatment. The Doctor advised that the patient requires maximum sensory and emotional stimulation to her brain for her fast recovery for which presence of her own child will be very O.P.(FC) No. 3058 /2012 3 useful. It is then alleged that the child is presently under the care of one Bindu at Mumbai who is a distant relative of the petitioner herein. The parents of the petitioner herein are allegedly a aged and totally incapable of looking after the child. They are not interested in looking after the child at all. The petitioner has no time to take care of her child. The present residence of the child in such an atmosphere will hamper the growth of the child and will retard her personality. Various requests by the first respondent for getting the custody of the minor child were not heeded to by the petitioner and hence Ext.P1 is filed. 2. The petitioner entered appearance and filed preliminary objections. A separate application seeking exemption from producing the child was also filed. The contention raised in the preliminary objection is that the Family Court, Ernakulam lacks in jurisdiction to entertain Ext.P1 original petition as the child does not ordinarily reside within the limits of that court. The child has been residing ever since its birth at Mumbai. The child is under care and protection of the petitioner and his parents and one maid servant also has been employed to look after the child. O.P.(FC) No. 3058 /2012 4 The allegation that custody of the child is entrusted to Bindu, a distant relative of the petitioner, herein is denied. Bindu resides very close to the petitioner's house and on certain occasions when the petitioner and his parents were in the hospital only, the custody of the child was entrusted to Bindu for a very short while. The child is healthy and happy under the protection of the petitioner. The Family Court at Ernakulam has no jurisdiction over Ext.P1 and in the preliminary objection the allegations regarding the harassment, cruelty, attempt to murder etc. are stoutly denied, raising the preliminary issue as to whether the original petition is maintainable for want of territorial jurisdiction of the Family Court, Ernakulam. 3. By Ext.P5, it is held that the Family Court has jurisdiction. To come to such a conclusion , the learned court has placed reliance on the decisions such as **Ganrav Nagpal v. Sumidha Nagpal (2009 Kerala High Court 4035)** , **Vasu v. Muraleedharan ( 2009 (1) KLT 480)** . The learned court has proceeded to distinguish the judgment in **Chandy v. Mary Baneena ( 1988 (1) KLT 611)** and **Himanshu Mahajan v. Rashu Mahjan and others ( AIR 2008 Himachal Pradesh** O.P.(FC) No. 3058 /2012 5 ## **38)** which were relied on by the petitioner herein. 4. Ext.P5 is challenged on various grounds and we have heard the submissions of Sri.Martin G.Thottan learned counsel for the petitioner and those of Sri.K.Shaj learned counsel for the respondents. Upon the conclusion of the arguments, as we felt that it is necessary to have an idea as to the present physical and mental condition of the first respondent, we deputed Advocate Latheesh Sebastian as commissioner to visit her and to file a report. The report submitted by the commissioner is very short. The essentials of the report submitted by the commissioner is as follows; ## “ **The present physical and mental condition of Mrs.Bindu Panicker** . At the time of my visit Mrs. Bindu Panicker was laying in the hospital bed. She is fully bed ridden, unable to make a move of her own. Her mouth and eyes were open. She is able to move iris on both directions. Mrs. Bindu can move her head on both directions. From the appearance it is found that she is not responding to the sound or sensing the movements in the room and is not identifying/recognizing visitors. But she is responding by expressing shocks in the face, if one touches on the nails of both the legs and the feet foot. Mrs. Bindu did not make any sound/noice at the time of my visit and is not in a position to answer any questions, though O.P.(FC) No. 3058 /2012 6 I asked some questions. Mother and doctor, who are attending Mrs.Bindu Panicker expressed that there is improvements in the physical condition of Mrs. Bindu Panicker and she is taking food orally, if fed through spoon. But I have not seen the same . Since Mrs.Bindu Panicker is not responding to any of the questions, I am not in a position to report about the mental condition of Mrs.Bindu Panicker. “ 5. Relying on the judgment of the supreme Court in Jeewanti. v.Kishan Chandra ( AIR 1982 Supreme Court 3 ), it was argued by Sri.Martin G.Thottan that residence should mean actual place of residence and not legal or constructive residence. The judgment of the Hon'ble Mr. Justice Thomas as a Judge of this court in Chandy v. Mary Baneena (Cited supra) was also relied on by the learned counsel. 6. Relying on the decision reported in **Poonen v. Rathi Varghese ( 1966 KLT 454 (FB)** Advocate Sri.Martin G. Thottan argued that place of residence does not mean places of casual residence and transitory residence. The residence of the first respondent at Life Care Clinic at Palarivattom is only a transitory residence, so submitted Mr.Martin G. Thottan. Relying on an early judgment of this Court reported in **Sarada Nayar v.** O.P.(FC) No. 3058 /2012 7 **Vayankara Amma (1957 KLT 466)** Mr.Martin argued that the expression “where the minor ordinarily resides” has been intentionally used in the statute for excluding places to which the minor may be removed at or about the time of filing of the application for the enforcement of the guardianship and custody of the minor. The legislature intended to avoid inconveniences to the minor. The interest of the minor has been uppermost in the mind of the legislature while using the above expression and the legislature has conferred jurisdiction only upon the Court where the minor has been residing for a reasonably long period . The minor in this case, it was pointed out, has never seen the soil of Kerala. Referring to the judgment of the Division Bench of this Court reported in **Vasu v. Muralidharan** (cited supra) where the Court took the view that when the spouses are living separately the places of residence of the minor children will be the place of residence of either of the spouses, counsel submitted that the above judgment strikes a different note and hence requires to be considered. According to the learned counsel even if it is assumed that the said decision lays down the law correctly, the Family Court, Ernakulam cannot have jurisdiction in O.P.(FC) No. 3058 /2012 8 this case as the first respondent cannot be said to be ordinarily residing at Palarivattom which is only a place of transitory residence for her. Ordinary and permanent residence of the first respondent is at Mumbay. 7. Meeting the arguments of Mr. Martin G. Thottan, Sri.Shaj, learned counsel for the respondent supported the impugned judgment of the Family Court. He would place strong reliance on the judgment in **Vasu v. Muralidharan** and submit that the first respondent/mother of the child has been residing at Palarivattom for a long period and now considering her present health condition she will have to remain hospitalized for still longer periods. Reliance was placed by Sri.Shaj on the judgment of the Hon'ble Supreme Court reported in **Nil Ratan Kundu v. Abhijit Kundu (2008) 9 S.C.C. 413)** to argue the preposition that in parens patriae jurisdiction the paramount consideration which governs custody of a minor child is the welfare of the child and not the rights of the parents. The Hon'ble Supreme Court in unmistakable terms laid down that what is required in such matters is a human touch. Referring to the judgment of the Full Bench of this Court in **Poonen v. Rathi** O.P.(FC) No. 3058 /2012 9 **Varghese** ( **1996 KLT 454)** , the learned counsel submitted that to constitute 'residence', it is not necessary that the party or parties must have his or their own house and the stay need not be permanent. It can also be temporary, so long as there is animus manendi or an intention to stay for an indefinite period. In view of the present condition of the first respondent it is obvious that first and 2[nd] respondent will have to remain at Palarivattom for an indefinite period. Learned counsel would draw our attention to the certificate issued on 19.6.2002 by Dr.Biju Ravindran, Consultant Physiatrist visiting Life Care Clinic regularly in which it is stated that the first respondent needs maximum sensory and emotional stimulation to the brain for her fast recovery and that presence of the child is absolutely necessary for the fast recovery of the first respondent. 8. We have given our anxious consideration into the rival submissions addressed at the Bar. Section 9 of the Guardians and Wards Act confers jurisdiction to deal with matters pertaining to guardianship and custody of the children only on that court within whose territorial limits the child ordinarily resides. The Hon'ble Supreme Court in Jeewanti v.Kishan Chandra (cited O.P.(FC) No. 3058 /2012 10 supra) dealing with the concept of 'residence' within the meaning of Section 19 clause (ii) of the Hindu Marriage Act, 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. Stating that 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, their Lordships go on to say that in the 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. Justice K.T.Thomas as a Judge of this court in Chandy v. Mary Neena (cited supra) relied on the above decision of the Supreme Court and in the context of Section 9 of the Guardians and Wards Act held that the expression “ordinarily resides” connotes a regularly settled home and not a place of study where the children are obliged to dwell by force of circumstances or compulsion of parents employment. O.P.(FC) No. 3058 /2012 11 A Division Bench of this court in Sarada Nayar v. Vayankara Amma & others (cited supra) held that the expression in Section 9 of the Guardians & Wards Act ”where the minor ordinarily resides” appears to have been deliberately used to exclude places to which the minor may be removed, at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor. It is laid down that the phrase”ordinarily resides” indicates ordinary residence even at the time of the presentation of presentation of the application. It is pointed out that emphasis is undoubtedly on the minor's ordinary place of residence. 9. The judgment of the Supreme Court in Nil Ratan Kundu And Another v. Abhijit Kundu (cited supra) does not expressly deal with the concept of 'ordinary residence” under Section 9 of the Guardians and Wards Act . It has only reiterated the well known proposition that in parens patriae jurisdiction the issue has to be resolved with a human touch and that due weightage must be given to the child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values. It is O.P.(FC) No. 3058 /2012 12 also laid down that the court should ascertain the child's preference. The Full Bench of this court in Poonen v.Rathi Varghese (cited supra) dealing with Section (3) clause (3) of the Divorce Act 1869, explained 'Reside or last resided together' and held inter alia that the main factors to be considered in deciding the question where the parties last resided together are (1) to constitute 'residence', it is not necessary that the party or parties must have his or their own house:(2) to constitute 'residence' the stay need not be permanent it can also be temporary, so long as there is animus manendi or an intention to stay for an indefinite period; (3)”residence” will not take in a casual stay in, or a flying visit to a particular place; a mere casual residence in a place for a temporary purpose, with no indention or remaining, is not covered by the word 'reside'; (4) “residence” connotes, something more than stay: it implies some intention to remain at a place, and not merely to pay it a casual visit: (5) by staying in a particular place, in order to constitute “residence” the intention must be to make it his or their abode or residence, either permanent or temporary (6) the expression “last resided” also means the place where the person had his last O.P.(FC) No. 3058 /2012 13 abode or residence, permanent or temporary; (7) where there has been residence together of a more permanent character, and a casual or brief residence together it is only the former that can be considered as “residence together” for determining the jurisdiction” (8) the question as to whether a particular person has chosen to make a particular place His abode, is to be gathered from the particular circumstances of each case. Strong reliance was placed by the learned counsel for the respondent in a Division Bench of this court in Vasu v.Muralidharan (cited supra) which takes the view that ordinary residence of child can be the ordinary residence of either of the parents where both the parents are living apart- if one of the spouse is not living, necessarily the only other place having jurisdiction is the place where the spouse living resides. It will be seen on a reading of this judgment that their Lordships were following an earlier judgment of this court in Prabhu v. Rajani (2007 (2) KLT SN 38). 10. We have gone through the full text of the judgment in Prabhu's case. The observation made by the Bench in the beginning of paragraph 5 of the judgment that “the ordinary O.P.(FC) No. 3058 /2012 14 residence of the child can be the ordinary residence of either of the parents as well in a situation where both parents are living apart” is made by the Bench as a general observation without referring to any precedent. Interestingly in that case the Bench did not accept the case of the mother that as she and the child are residing at Tripunithura and as the child is admitted to a school in Tripunithura, the Ernakulam court has jurisdiction. This Court remitted the matter back to the Family Court to decide the question whether the mother who came to reside in Tripunithura recently can be said to be ordinarily residing at Tripunithura. The facts in Vasu v.Muralidharan (cited supra) will now have to be noticed. That was a case where the dispute was between the maternal grand parents of the child with whom the child was residing at the time of presentation of the application and father of the child whose ordinary place of residence was at Palakkad. The respondent in that case, the mother of the child had committed suicide and the police had in fact charge sheeted the father of the child for dowry death. Nevertheless the trial court found that place of ordinary residence of the child is not the place where the child was residing at the time of presentation of the O.P.(FC) No. 3058 /2012 15 application - place of residence of its maternal grant parents, but the same is Plakkad, the residence of the father of the child. The Division Bench referred to Prabhu v. Rajani (cited supra) and held that that the principles laid down in Prabu v. Rajani's case will apply also to cases where both the parents are living and living apart. In that view of the matter, the Division Bench held that it is the court at Palakkad, the place of residence of the father, which is having jurisdiction under Section 9 of the Guardians and Wards Act. The Division Bench however, elsewhere in the judgment has stated that the question as to the ordinary residence of a minor is always a question to be decided on the facts and particulars of each case. According to us, the judgment in Vasu v. Maralidharan can apply only to the cases where the fact situation is identical to that case. 11. Coming to the present case, the child in question was born in the State of Maharastra. It is being brought up at Mumbai and it is given pre primary education at Mumbai The child is not old enough to form an intelligent preference. It was never seen the soil of Kerala, the home state of its parents. The materials available will show that the child is staying with his O.P.(FC) No. 3058 /2012 16 father and paternal grand parents. The allegation that the custody of the child is given to a distant relative is emphatically denied. Materials available show that since it's birth the child has been residing at Mumbai only. The respondents do not have a case that the child has ever resided at Palarivattom, the place within the jurisdiction of the Ernakulam Family Court or for that matter anywhere else in Kerala. The court below was relied on the Judgment in Vasu v. Muralidharan(cited supra) to take the view that as the mother of the child, who is living separately from her husband, is ordinarily residing at Palarivattom, the Family Court at Ernakulam has the jurisdiction. 12. It is very difficult to accept the contention of the respondents that the first respondent herein, the mother of the child, is ordinarily residing at Palarivattom, the place where the hospital in which she is now admitted is situated. The first respondent's family house is at Kollam and her ordinary residence, assuming that she has no other place of residence in Maharastra, is Kollam. But, we find that the first respondent's parents including the 2[nd] respondent her mother and power of attorney holder were also having ordinarily stay at Raigar in O.P.(FC) No. 3058 /2012 17 Maharastra. 13. When the concept of ordinary residence is analysed in the context of the various decisions referred to herein before especially the judgment of the Supreme Court in _Jeewanti v. Kishan Chandra (cited supra), Sarada Nayar v. Vayankara Amma & others (cited supra)_ and also the judgment of the Full Bench _Poonen v. Rathi Varghese (cited supra)_ it will be seen that the first respondent, mother, is not ordinarily residing at Palarivattom within the limits of the Ernakulam Family Court. On the contrary, it can be very easily found that the child is ordinarily residing at Mumbai along with its father. There is yet another aspect which cannot go unnoticed. The principle that a minor child can be considered to be ordinarily residing at the place of ordinary residence of either of its parents is based on the theory that the parents will always provide shelter to the child. In this particular case, where the first respondent mother is lying in a semi coma condition in the hospital at Palarivattom, the above principle cannot have any application. 14. The result is that the original petition stands allowed. The impugned order is set aside. It is held that Ext.P1, original O.P.(FC) No. 3058 /2012 18 petition is not maintainable before the Family Court, Ernakulam for want of territorial jurisdiction. The Family Court is directed to return Ext.P1 to the respondents so as to enabling them to present the same before appropriate Court. We record the assurance given to us on behalf of the petitioner by his counsel Sri.Martin G. Thottan that the petitioner will bring the child Jhanvi Pramod Panickar over to the Life Care Clinic, Palarivattom, where the first respondent is being treated, so that the respondents can see the child and be with the child for reasonable periods of time during school vacation/long holidays. Sd/- **PIUS C.KURIAKOSE, Judge. Sd/-** **BABU MATHEW P.JOSEPH, Judge.** dpk/ul/kns. O.P.(FC) No. 3058 /2012 19