Rajeev S.R. and Laly Rajeev v. Anoop Vijayakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939 Tr.P(C).No. 299 of 2017 () ---------------------------** **IN OP(G&W) 662/2017 of FAMILY COURT,THRISSUR** **PETITIONER(S): -------------** **1. RAJEEV.S.R AGED 52, S/O RAMAKRISHNAN NAIR, "SREERANGAM". MADAPPALLY P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686546. 2. LALY RAJEEV, AGED 50, W/O RAJEEV S.R. "SREERANGAM". MADAPPALLY P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686546.** ## **BY ADV. SRI.SANIL JOSE** **RESPONDENT(S): --------------** **ANOOP VIJAYAKUMAR AGED 28, S/O VIJAYAKUMA, "ARCHANA", KEERTHI NAGAR, NADATHARA P.O., THRISSUR TALUK, THRISSUR DISTRICT-680751, NOW RESIDING AT DOMOSCO, P.O.BOX 1427, DOHA, QATAR.** **R1 BY ADV. SRI.RAJIT** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Tr.P(C).No. 299 of 2017 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** **A1 : COPY OF THE ORIGINAL PETITION IN O.P.(G&W) NO.662/2017 ON THE FILE OF FAMILY COURT, THRISSUR** **A2 : COPY OF THE IA NO.1933/2017FOR INTERIM CUSTODY IN O.P. (G&W) NO.662/2017 ON THE FILE OF THE FAMILY COURT, THRISSUR** **A3 : COPY OF THE ORIGINAL PETITION IN O.P.(G&W) NO.426/2017 ON THE FILE OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR** ## **RESPONDENTS' ANNEXURE: N I L** ## **//TRUE COPY//** ## **PA TO JUDGE** ## **A. HARIPRASAD, J. ------------------------------Tr.P.(C).No.299 of 2017 ---------------------------------------------Dated this the 9[th] day of August, 2017** ## **O R D E R** Heard the learned counsel appearing on both sides. 2. Respondent married petitioners' daughter and a girl child is born in that relationship. Subsequently, petitioners' daughter committed suicide. It is averred in the petition that the child is ordinarily residing with the grant parents in their family house. Both the petitioners and respondent filed separate original petitions under the Guardian and Wards Act, 1890 (in short, the Act) before two different family courts claiming custody of the minor child. Petitioners filed O.P.(G&W) No.426 of 2017 before the Family Court, Kottayam at Ettumanoor. The respondent filed O.P.(G&W) No.662 of 2017 before the Family Court, Thrissur. Annexures A1 and A3 are the respective petitions. Petitioners would contend that right from the death of their daughter, the child is residing with them. It is also contended that the respondent/father of the child is working **Tr.P.(C).No.299 /2017** **2** abroad and he is conducting the case through a power of attorney. 3. Learned counsel for the respondent contended that going by Section 9(1) of the Act, the District Court, where the minor ordinarily resides, is having jurisdiction to entertain an application. According to him, the child should be presumed to be living with its father, who is the natural guardian. To support this contention, the decisions reported in **Vasu v. Muralidharan [2009 (1) KHC 443], Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** and **Chandra Kanta v. Superintendent of Police [2000 KHC 2536]** are pressed into service. In **Vasu's case** , a Division Bench of this Court considered the scope of Section 9 of the Act and held thus: The phrase 'ordinarily resides' indicates ordinary residence even at the time of presentation of the application. The emphasis is undoubtedly on the minor's ordinary place of residence. The question as to the ordinary residence of a minor is always to be decided on the facts and particulars of each case. Ordinarily, a child's ordinary residence will be the place of residence of the parents. The mere fact that a minor child has to temporarily go outside the ordinary **Tr.P.(C).No.299 /2017** **3** residence either for the purpose of continuing the education or because of the fact that the parents are temporarily employed else where by itself will not determine that place as the place of ordinary residence. In other words, ordinary residence must be something more than a temporary residence even though such residence is spread over a long period. ## 4. Another Division Bench in **Sobhana Nair's case** , observed thus: When the paramount consideration of the Court exercising 'parens patriae' jurisdiction, on the question of custody or visitation right, is the welfare and well being of the minor children and not the right of their grandmother, who is at loggerheads with their father, the petitioner has absolutely no legal right to insist that the minor children should be brought to the Court premises itself on every second Saturday in order to have her visitation right. It was after taking note of all attendant circumstances, the Family Court came to the conclusion that, the petitioner can have visitation right over the minor children of her deceased daughter, at the visitors room in Air Force Station, Akkulam on every second Saturday, in between 10.00 a.m. and 11.00 a.m. The Family Court has also made it clear that, if the petitioner finds any difficulty or inconvenience to visit the children at the Air Force Station, Akkulam she will **Tr.P.(C).No.299 /2017** **4** be at liberty to approach the Court for suitable modification in her visitation right. 5. A decision rendered by a Division Bench of Rajasthan High Court in **Chandra Kanta's case** in the matter of issuing a writ of habeas corpus considered the right of grant parents to claim custody. It has been held by the court that the grant parents do not have a legal right to the custody of the minor. There cannot be a dispute to the proposition that the respondent is the natural guardian of the child. However, it has been settled by a catena of decisions that welfare of the child should be the paramount consideration. 6. Learned counsel for the petitioner, placing reliance on **Salini v. Umasankaran [2016 (4) KLT 1068]** contended that the place where the child is residing considerably for a long period should be given preference by the court while dealing with custody applications. In this case, the child is only about one year old. From the date of birth, the child is residing with grant parents in the family house is a fact admitted. Learned counsel for the respondent would content that it is only because of the fact that his wife was taken to the family house for **Tr.P.(C).No.299 /2017** **5** delivery. Whatever that be, the principles in **Salini's case** , may apply to the facts of this case. The principles are extracted hereunder: The principles emanating from the various decisions supra on the point are enumerated and those would guide us to arrive at a finding about the jurisdictional issue involved in the case. (1) The courts in seizin of issues relating to custody shall bear in mind that the welfare of the child is of paramount importance when the jurisdictional issue is under its consideration. (2) Undoubtedly the child's ordinary place of residence would be the place of abode of parents when he is in the company of them. (3) Custody applications would normally come in circumstances of strained relationship of the parents and the consequent living of either of them separately; in cases of retention of the child by in-laws or other relatives after the death of either of the spouse; and in case of retention of the child by some of his relatives in a case where both his parents are not alive. Living apart can also be on reasons of one among the spouses being employed abroad or elsewhere in the country. In case of the spouses living apart, or are no more, the person with **Tr.P.(C).No.299 /2017** **6** whom the child shares his residence for a considerably long period should be given preference by the court while dealing with custody applications. (4) In case the parties have a permanent residence or a regular home and the child out of circumstances of compulsion of his education or parents' employment is constrained to stay at different places, the court should see, the place where the permanent residence is built by the parties intending thereby to stay together lifelong would be of relevance while the jurisdictional issue is in seizin of a court. Considering the facts and circumstances, following directions are issued: O.P.(G&W) No.662 of 2017 pending before the Family Court, Thrissur is withdrawn and transferred to Family Court, Kottayam at Ettumanoor to be tried along with O.P.(G&W) No.426 of 2017. Parties are directed to appear before the Family Court, Kottayam at Ettumanoor on 13.9.2017. sd/- **A. HARIPRASAD JUDGE** JV