# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM**
**& THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI**
**WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940**
**Mat.Appeal.No. 298 of 2018 (AGAINST THE ODER DATED 5.1.2018 IN I.A.NO.1805/2017 IN O.P.NO.715/2017 OF THE FAMILY COURT, TIRUR)**
## **APPELLANT/PETITIONER:**
**RAJULESH SAIMON, S/O.RAJINOLD VINCENT, AGED 35 YEARS, PANDARAPPARAMBIL HOUSE, POST TRIPRANGODE, TIRUR TALUK, MALAPPURAM DISTRICT.**
**BY ADV.SRI.C.M.MOHAMMED IQUABAL**
## **RESPONDENT/RESPONDENT:**
**NEVIA TOLMA SOLOMON, D/O.SOLOMON, AGED 31 YEARS, VADURYAM HOUSE, KUNDICHIRA, PONNYAM POST, PONNYAM WEST, KANNUR DISTRICT, PIN-670 641.**
**BY ADVS. SRI.S.PRASANTH (AYYAPPANKAVU) SMT.VARSHA BHASKAR SRI.JYOTHISH D.MONY**
**THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2018, THE COURT ON**
**18.07.2018 DELIVERED THE FOLLOWING:**
ss
## **C.K. ABDUL REHIM, J & R.NARAYANA PISHARADI, J**
--------------------------------------------------------
## **Mat. Appeal No.298 of 2018**
--------------------------------------------------Dated this the 18[th] day of July, 2018
## **JUDGMENT**
## _**R. Narayana Pisharadi, J**_
The appellant is the father and the respondent is the mother of the minor children by name Levin Jaro Rajinold and Shalvin Bravio Rajinold. The appellant filed O.P.No.715/2017 in the Family Court, Tirur for getting custody of the aforesaid minor children. As per the order dated 05.1.2018 in I.A.No.1805/2017, the Family Court found that it has got no jurisdiction to consider the original petition filed by the appellant before that court for getting custody of the minor children and therefore, ordered to return the original petition to the appellant. The aforesaid order is challenged in this appeal.
2. The case of the appellant before the Family Court can be briefly stated as follows: The marriage of the appellant and the respondent was solemnized on 27.12.2008. Thereafter, they lived together in the house of the petitioner. Three children have born in their wedlock. The youngest child is now
_**M. A. No.298 of 2018**_
2
aged only two months. Marital discord had occurred between them from the very beginning. Then, the respondent left the house of the appellant and she started to live in her house at Thalassery. However, in the year 2015, due to the intervention of mediators, she returned to the house of the appellant at Tirur with the two children and they again began to live together. When the respondent became pregnant for the third time in the year 2016, she returned to her house. On 10.05.2017, the grandmother of the appellant died. Thereafter, she lived two days in the house of the appellant but again returned to her house with the children. The respondent has threatened the appellant that he would not be allowed to see the children if he went to her house at Thalassery. The respondent is residing separately from the appellant and the children are in her custody. The appellant is entitled to get custody of the elder two children who are aged 6 years and 4½ years respectively.
3. The appellant filed the application I.A.No.1805/2017 for getting interim custody of the children. In that application, the respondent filed counter statement contending that the
_**M. A. No.298 of 2018**_
3
Family Court, Tirur has got no jurisdiction to entertain the original petition for custody of the minor children. The respondent contended that she has been residing in Kannur district along with the children. She also contended that the appellant can at any time visit the children at her house at Thalassery.
4. Both parties did not adduce any oral evidence in the application filed by the appellant for getting interim custody of the children. But, Exts.A1 to A4 documents were marked on the side of the appellant. After appreciating the pleadings of the parties and the circumstances of the case, the Family Court came to the conclusion that the respondent has been residing at Thalassery from the year 2015 onwards with the children and that it has got no jurisdiction to decide the question of custody of the children and therefore, ordered to return the original petition to the appellant.
5. We have heard the learned counsel for the appellant
as well as the respondent.
6. Section 9 of the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act') makes a specific provision
_**M. A. No.298 of 2018**_
4
as regards the jurisdiction of the court to entertain a claim for grant of custody of a minor. Section 9 (1) of the Act provides that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
7. A bare reading of Section 9 (1) of the Act would show that the solitary test for determining the jurisdiction of the court to entertain an application for guardianship of the person of the minor is the 'ordinary residence' of the minor. Jurisdiction of the court will have to be decided in the context of the averments made in the pleadings of the parties in the light of the provision contained in Section 9 (1) of the Act (See Ruchi Majoo v. Sanjeev Majoo : AIR 2011 SC 1952).
8. 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. Ordinary residence must be something more than a temporary residence. "Ordinarily resides" connotes a regularly settled home and not a place of
_**M. A. No.298 of 2018**_
5
study where the children are obliged to dwell by force of circumstances. The expression “the place where the minor ordinarily resides” means the place where the minor generally resides and would be expected to reside but for special circumstances. The expression “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. The phrase ordinarily resides indicates ordinary residence even at the time of the presentation of the application. The emphasis is undoubtedly on the minor's ordinary place of residence. Such a place has to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place. Where the application is filed soon after such removal, the place of such removal will be ignored for the purpose of determining the jurisdiction of the court to entertain the application and inspite of such removal the minor will be deemed to have its residence at the place where it was
_**M. A. No.298 of 2018**_
6
ordinarily residing (See Sarada Nayar v. Vayankara Amma : 1957 KLT 466). Where both parents are living separately, the place of residence of the parents can be taken as the place of residence of the minor children (See Prakash v. Padmakumari : 2013 KHC 3340).
9. In the instant case, it is evident from the pleadings of the appellant that at least from 15.05.2017 onwards the respondent is separately residing alongwith the children in her house at Thalassery. The original petition for custody of the children was filed by the appellant on 22.11.2017. During a continuous period of six months immediately preceding the filing of the original petition , the respondent and the children were residing at Thalassery. It cannot be considered as temporary residence. Therefore, it has to be found that at the time of filing the original petition the children were ordinarily residing at Thalassery alongwith their mother. It is not a case where the respondent has forcibly taken away the children from the custody of the appellant just before the filing of the original petition by the appellant. Admittedly, the elder children are now studying in the school at Thalassery. It follows that
_**M. A. No.298 of 2018**_
7
the Family Court, Tirur has come to the right conclusion that it has got no territorial jurisdiction to entertain the petition for custody of the children filed by the appellant. Though not a matter strictly relevant in the context of jurisdictional issue, it is also to be noted that the youngest child who is now aged only about ten months is with the respondent. It would be difficult for her to be away from the company of the baby to attend the Family Court at Tirur or to travel from Thalassery to Tirur with the baby. In these circumstances, we see no ground to interfere with the finding of the Family Court that it has got no territorial jurisdiction to entertain the original petition filed by the appellant for the custody of the two elder children.
Consequently, we dismiss the appeal. No costs.
_Sd/-_
## **C.K. Abdul Rehim, Judge**
_Sd/-_
## **R. Narayana Pisharadi, Judge**
_//True Copy//_
_P.A. To Judge_
ss
