Sareena v. Jasim Ambalangadan

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Harun-ul-Rashid, J.
Alexander Thomas, J.
Judgment Date: 2014-09-25
Court Decision / Holding: The petition challenging Ext.P8 in I.A.No.521/2013 in O.A.No.945/2012 is dismissed in limine; the Family Court Kozhikode's order stands, finding that the minor child’s ordinary residence is Kozhikode and that the Kozhikode Family Court has jurisdiction to entertain OA 945/2012.
Final Disposition: Petition dismissed; order of the Family Court Kozhikode upheld in limine, preserving its jurisdiction over OA 945/2012 and IA 521/2013 in O.A. 945/2012.

Parties to the Case

Appellants / Petitioners

Sareena

Respondents

Jasim Ambalangadan

Legal Representation & Advocates

Counsels for Petitioners

• SRI.P.V.SURENDRANATH
• SMT.BINDUMOL JOSEPH
• SRI.B.S.SYAMANTHAK
• SRI.P.HAMZAKUTTY

Case Synopsis & Summary

This Kerala High Court judgment, delivered by a Division Bench, concerns a custody petition under the Guardian & Wards Act, 1890 filed by Sareena before the Family Court, Kozhikode, challenging an order in OA 945/2012 and IA 521/2013. The respondent, Jasim Ambalangadan, sought custody of the minor child 'Adam Muhammed' and contended that the child ordinarily resided in Chennai, where he is employed by the Southern Railway and where the child had schooling, arguing the petition before Kozhikode Family Court was without jurisdiction. Sareena argued that the child was a resident of Kozhikode District and that the Family Court at Kozhikode had jurisdiction. The Family Court found that the child’s ordinary residence was Kozhikode, holding the petition to be within its jurisdiction. On appeal, the High Court endorsed the Family Court’s approach, citing principles from Paul Mohinder Gahun v. Selina Gahun, Vasu v. Muralidharan, and Chandy v. Mary Baneena, and held there was no merit in Sareena’s challenge. Consequently, the original petition challenging Ext.P8 (the Family Court order) was dismissed in limine, thereby upholding the Family Court’s jurisdiction and its custody ruling.

Provisions of Law Cited

Guardian and Wards Act, 1890 – Sections 7 and 25

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-mother Sareena contends that the minor child is a resident of Kozhikode District and that the Family Court, Kozhikode, has territorial and jurisdictional competence to entertain OA 945/2012 under the Guardian & Wards Act, 1890. She asserts that the child’s birth and residence were in Kozhikode, with schooling and day-to-day care linked to Kozhikode, and that transfer of the father does not alter the child’s ordinary residence. The petition seeks custody but hinges on jurisdiction—whether Kozhikode is the proper forum or whether Chennai should have exclusive jurisdiction due to the father’s Chennai-based employment and the child’s schooling there.

Contentions of Respondents

The respondent-father contends that the child ordinarily resided in Chennai, where he is employed by the Southern Railway and where the minor studied at Little Ants Play School, Kilpauk; therefore OA 945/2012 ought to be entertained only by the Chennai Family Court. He argues the petition before Kozhikode is filed without jurisdiction and should be dismissed on that ground. He additionally asserts the child’s residence and education in Chennai render Kozhikode’s forum improper, and the matter should be transferred or dismissed pending proper forum.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Paul Mohinder Gahun v. Selina Gahun	2006 (4) KLT Case No.77, Page 56	Positive	Cited for principles governing ordinary residence and jurisdiction in guardianship/custody matters; applied by the High Court to uphold Kozhikode’s jurisdiction.
Vasu v. Muralidharan	2009 (1) KLT 480	Positive	Cited as authority on determining ordinary residence and jurisdiction; used to support the Kozhikode forum.
Chandy v. Mary Baneena	1988 (1) KLT 611	Positive	Cited for guiding principles on jurisdiction in guardianship matters; relied upon in evaluating residence and forum.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 25TH DAY OF SEPTEMBER 2014/3RD ASWINA, 1936 OP (FC).No. 471 of 2014 (R) -------------------------I.A.NO.521/2013 IN O.A.NO.945/2012 OF THE FAMILY COURT, KOZHIKODE DATED 3/6/2014 PETITIONER: ----------SAREENA, AGED 27 YEARS, D/O.ALIKOYA, RAHIMATH MANZIL, KAKKUR(P.O) KOZHIKODE-673 619. BY ADVS.SRI.P.V.SURENDRANATH SMT.BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK SRI.P.HAMZAKUTTY RESPONDENT: ----------JASIM AMBALANGADAN, AGED 32 YEARS, S/O.MUHAMMED, AMBALANGADAN HOUSE, KOOTTALUNGAL KUNDOTTY, CHIRAYIL POST, MALAPPURAM-673 638. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 25-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 471 of 2014 (R) ---------------------------- ## APPENDIX PETITIONER'S EXHIBITS --------------------- P1- A TRUE COPY OF OA 925/2011 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOZHIKODE DATED 06.12.2011. P2- A TRUE COPY OF (G.W)O.A.NO.945/2012 DATED 03.12.2012. P3- A TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER. P4- A TRUE COPY OF THE IA 521/2013 DATED 31.05.2013 IN OA 945/2012 FILED BY THE PETITIONER. P5- A TRUE COPY OF THE RECEIPT DATED 11.06.2013 ISSUED BY THE LITTLE ANTS' KILPUK, CHENNAI. P6- A TRUE COPY OF THE COUNTER STATEMENT DATED 16.11.2013 FILED BY THE RESPONDENT. P7- A TRUE COPY OF THE REJOINDER ADDENDUM DATED 05.03.2014 FILED BY THE PETITIONER. P8- A TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT KOZHIKODE DATED 03.06.2014 IN I.A.NO.521/2013 IN OA NO.945/2012. RESPONDENT'S EXHIBITS --------------------- NIL. TRUE COPY P.S. TO JUDGE ## **HARUN-UL-RASHID & ALEXANDER THOMAS,JJ.** ## **-------------------------** ## **O.P.(FC) NO. 471 OF 2014** ## **-------------------------** **DATED THIS THE 25TH DAY OF SEPTEMBER, 2014** ## **JUDGMENT** **- - Harun Ul Rashid, J.** Ext.P8 order was Ext.P8 order is under challenge. passed by the Family Court, Kozhikode in I.A.No.521/2013 in O.A.No.945/2012. Petitioner herein is the petitioner in I.A.No.521/2013, which was filed for considering the issue of jurisdiction preliminary and to dismiss the original petition finding that the same is filed without jurisdiction. O.A.No.945/2012 was filed by the respondent herein as the petitioner under Sections 7 and 25 of the Guardian & Wards Act, 1890 for custody of the minor child named 'Adam Muhammed'. 2. Petitioner and respondent are husband and wife respectively. The marriage between them was ceremonized on 25/7/2010 at Kakkodi Prince Auditorium, Kozhikode. They lived **-2-** ## **O.P.(FC).No.471/2014** together at the house of the petitioner and in that wedlock a male child was born on 4/6/2011. Respondent is an employee of the Southern Railway at Chennai. Petitioner is also employed at Chennai. For the purpose of employment they have taken a rented house at Chennai and are residing there at the time of filing the I.A. The parties could not continue to live together due to marital dispute. When the respondent became pregnant, her treatment was conducted at the native place and the child was born at Rajendra Nursing Home, Kozhikode. Due to the marital discord there are several litigations between the parties. The respondent-father contended that the child ordinarily resided at Chennai and so the petition seeking custody of the child is to be filed before the Family Court at Chennai and not before the Family Court, Kozhikode. It is stated that the child is studying at Little Ants Play School, Kilpauk, Chennai, so the question of jurisdiction may be considered preliminary and that the petition may be dismissed finding that it is **-3-** ## **O.P.(FC).No.471/2014** filed without jurisdiction. The petitioner-mother filed Ext.P3 counter statement controverting the averments and allegations in Ext.P2 petition filed by the father. According to her, the minor child is a resident of Kozhikode District and therefore the petition was filed before the Family Court, Kozhikode. According to her, the father, who is an employee of the Southern Railway, is liable to be transferred to any place in the country. The Family Court considered the issues as to whether the minor child is ordinarily resident within the jurisdiction of the Family Court and as to whether the Family Court has jurisdiction to entertain O.A.No.945/2012. The question was answered in the light of the principles of law stated in the decisions reported in **Paul Mohinder** **Gahun v. Selina Gahun (2006 (4) KLT Case No.77, Page 56), Vasu v. Muralidharan (2009 (1) KLT 480) and Chandy v. Mary Baneena (1988 (1) KLT 611).** The marriage between the parties was solemnized at Kozhikode. The parties resided as husband and **-4-** ## **O.P.(FC).No.471/2014** wife in the house of the petitioner, after the marriage. For convenience of their job they went to Chennai and resided there. When the mother became pregnant of the minor child for delivery, she returned to her native place at Kakkur, which is within the jurisdiction of the Family Court, Kozhikode. The delivery of the child was at Rajendra Hospital, Kozhikode and after delivery, she along with the new born child resided in her house. The Family Court, after appreciating the evidence on record and in the facts and circumstances of the case, held that the respondent had taken the child to Chennai for the convenience of the respondent. It is observed that Chennai is not permanent job place of the respondent, that being an employee of the Southern Railways, he may be transferred from Chennai to other places. The court rightly held that the present accommodation provided by the respondent for the minor child in the family quarters provided by the employer of the respondent at Chennai is not the ordinary residence of the **-5-** ## **O.P.(FC).No.471/2014** minor child. It was also held that the minor child happened to stay with the respondent due to compulsion and that the ordinary residence of the minor child is within the jurisdiction of the Family Court, Kozhikode. The contention of the respondent-father was rejected. The Family Court found that the contention that the Family Court has no jurisdiction to entertain O.A.945/2012, has no merit. I.A. No.521/2013 was dismissed finding that the Family Court has jurisdiction to entertain O.A.No.945/2012. After considering the matter and after hearing the parties at length, we agree with the view taken by the Family Court. There is no merit in the original petition filed challenging the order dated 3/6/2014 in I.A.No.521/2013 in O.A.No.945/2012 and accordingly it is dismissed in limine. **HARUN-UL-RASHID, Judge.** **ALEXANDER THOMAS,** **-6-** ## **O.P.(FC).No.471/2014** **Judge.** **kcv.**