**“CR”**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
**&**
**THE HONOURABLE MRS. JUSTICE ANNIE JOHN**
**THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941**
**OP (FC).No.608 OF 2017(R)**
**AGAINST THE ORDER/JUDGMENT IN OP 1095/2015 OF FAMILY COURT,TRIVANDRUM**
## **PETITIONERS/RESPONDENT NOS.2 & 3 IN THE OP:**
- **1 THOMAS KOSHY CHIRAYIL S/O. LATE KOSHY CHIRAYIL, AGED 89 YEARS, CHIRAYIL HOUSE, NALANCHIRA, NALANCHIRA P.O., THIRUVANANTHAPURAM, PINCODE : 695 015.**
**2 MARIYAM AGED 79 YEARS, W/O. THOMAS KOSHY CHIRAYIL, CHIRAYIL HOUSE, NALANCHIRA, NALANCHIRA P.O., THIRUVANANTHAPURAM, PINCODE : 695 015.**
**BY ADVS. SRI.D.GANESH KUMAR SMT.K.I.KAVITHA**
## **RESPONDENTS/PETITIONER & RESPONDENT NO.1 IN OP:**
**1 ANAND ROSH BOSE AGED 45 YEARS, S/O. M.K. BOSE, MORIYAKATTU HOUSE, ADARSHA VIDHYALAYA ROAD, KAKKANADU P.O., COCHIN, ERNAKULAM DISTRICT, PINCODE : 682 030.**
**2 BINCY SUSAN THOMAS AGED 45 YEARS, D/O. THOMAS KOSHY CHIRAYIL, CHIRAYIL HOUSE, NALANCHIRA, NALANCHIRA P.O., THIRUVANANTHAPURAM, PINCODE : 695 015, PERMANENTLY FROM BUTTI AL KHAMIS BUTTI BUILDING, FLAT NO. 201, MUROOR STREET, ABUDHABI, UAE.**
## **R1 BY ADV. SRI.P.V.ANIL**
- **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON**
- **7.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
**Dated this the 7th day of November 2019**
## Harilal, J.
- 1.The parties are referred to as in the impugned order under challenge.
2. The petitioner is the wife of the respondent. The respondent filed OP.No.1095/2015 before the Family Court, Thiruvananthapuram against the petitioner seeking a decree for permanent custody of the minor child born to them. The petitioner filed I.A.No.1859/15 in the said OP challenging the jurisdiction of the Family Court to try the aforesaid OP filed against her, on the ground that the minor girl, for whose custody the aforesaid OP was filed, is ordinarily residing at Abudhabi and hence the Family Court has no jurisdiction to try the OP, in view of Section 9 of the Guardians and Wards Act.
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The respondent opposed the said application contending that the child is not ordinarily residing at Abudhabi and the child is residing with the petitioner only for the reason that the petitioner is employed in Abudhabi and it cannot be said that the child is ordinarily residing in Abudhabi. After considering the aforesaid pleas, the Family Court dismissed the said application challenging the jurisdiction by finding that the petitioner's residence at Abudhabi in connection with her employment cannot be treated as her ordinary residence. Further, the Family Court held that “where the parents who are temporarily residing abroad in connection with their employment and the minors who are residing with them, their place of ordinary residence can be taken as the place in which they are at their native place in India”. The legality and correctness of the aforesaid finding is challenged in this OP(FC).
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- 3.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
4. Admittedly, the petitioner is an Indian citizen who was residing along with her parents at Trivandrum. But now, she is working at Abudhabi and after the dissolution of marriage, the minor child is also residing along with her at Abudhabi and studying in a school in 7[th] Grade at Abudhabi.
- 5.What does the expression "ordinarily residing" contemplated under section 9 of the Guardian and Wards Act mean and intent, in the case of a minor residing abroad with a parent, who is an Indian citizen employed abroad? This is the question that arises for consideration in this OP(FC). According to section 2 of the Guardian and Wards Act, this Act extends to the whole of India, except Jammu & Kashmir. The minor residing abroad with the parent was not within the contemplation of the Parliament at the time of passing the said Act. It follows
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that what is contemplated under the said Act is the minor, who is residing with the parent in India only, and the expression "ordinarily resides" must be read and interpreted as the place where the minor ordinarily resides in India. Therefore, the scope and extent of the expression "ordinarily resides" must be construed in the above context.
- 6.Section 9(1) of the Guardians and Wards Act reads thus:
**“9. Court having jurisdiction to entertain application.--** (1) 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.In **1970 (2) SCC 717 (Jijabai Vithal Rao Gajre vs. Pathan Khan and Others)** , the Supreme Court held
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that the expression “ordinarily resides” connotes a regularly settled home and it is something more than a temporary residence. Ordinarily, a minor child's ordinary residence is the place of residence of the parents and the expression "ordinarily resides" is not identical with the place of residence at the time of filing the application, seeking custody. Where the person is residing abroad on a visa, issued by a foreign country, whatever be the length of that stay, it is a temporary stay at the Will of the foreign country and his residence aborad cannot be treated with his regularly settled home. Therefore, we are of the view that in the case of a minor, who is residing along with the parent abroad, the place at which the parent, in whose custody, the minor was living in India, before the departure of the minor from India, regularly settled and permanently residing in India, is the minor's place of ordinary residence. So, the Family Court, within whose jurisdiction that place is situated will
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have the jurisdiction and power to try the case. The above view is supported by the principles of interpretation, that every expression in a statute must be construed, to advance the aim and object of the enactment and not to narrow down the scope and extent of the enactment. So, we are of the further opinion that, any other interpretation would take away the minor children, who are temporarily residing abroad along with the parent, in connection with the temporary employment of their parent, from the jurisdiction of the Family Court in India.
8.Coming to the instant case, at the time of marriage, the petitioner and respondent were residing in Kerala and after the birth of the child, the petitioner was residing at Thiruvananthapuram in the matrimonial home along with the minor child. Thus, the petitioner's regularly settled permanent residence is situated within the territorial jurisdiction of the Family Court, Thiruvananthapuram. It
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follows that the Family Court, Thiruvananthapuram has jurisdiction and power to try the aforesaid original petition.
9. That apart, the petitioner has filed I.A.1740/2015 seeking temporary custody of the child and the Family Court allowed that IA and granted temporary custody of the child to the petitioner. Thereafter, the petitioner is estopped from raising a contention that the Family Court at Thiruvananthapuram has no jurisdiction to entertain the OP. We do not find any reason to interfere with the impugned order under challenge.
This OP(FC) is dismissed.
Sd/-
## **K.HARILAL, JUDGE**
Sd/-
**ANNIE JOHN, JUDGE**
**kkb.**
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 21.07.2014, PASSED BY THE FAMILY COURT, THIRUVALLA IN O.P.(DIV)NO. 969/201**
**EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT EXECUTED BY ANAND ROSH BOSE ON 28.04.2014.**
- **EXHIBIT P3 TRUE COPY OF THE RECEIPT OF FULL AND FINAL SETTLEMENT, EXECUTED BY THE 2ND RESPONDENT ON 28.04.2014.**
- **EXHIBIT P4 TRUE COPY OF THE ORIGINAL PETITION NUMBERED AS O.P.NO. 1095/2015, PENDING BEFORE FAMILY COURT, THIRUVANANTHAPURAM.**
- **EXHIBIT P5 TRUE COPY OF OBJECTION FILED BY THE RESPONDENTS NO. 1TO 3 IN O.P.NO. 1095/2015, PENDING BEFORE FAMILY COURT, THIRUVANANTHAPURAM.**
- **EXHIBIT P6 TRUE COPY OF I.A.NO. 1749/2015 PREFERRED BY THE ORIGINAL PETITIONERS IN O.P.NO. 1095/2015.**
- **EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS NO. 1 TO 3 TO I.A.NO. 1749/2015.**
- **EXHIBIT P8 TRUE COPY OF PETITION (I.A.NO. 1859/2015) TO HEAR THE MANINTAINABILITY OF THE O.P.NO. 1095/2015, PREFERRED BY RESPONDENTS NO. 1 TO 3.**
- **EXHIBIT P9**
**TRUE COPY OF CERTIFICATE DATED 12.07.2015 ISSUED BY THE MANAGER, NATIONAL AVIATION SERVICES (NAS LLC), ABUDHABI.**
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**EXHIBIT P10**
- **TRUE COPY OF CERTIFICATE DATED 12.07.2015 ISSUED BY THE MANAGER, NATIONAL AVIATION SERVICES (NAS LLC), ABUDHABI.**
- **EXHIBIT P11**
- **TRUE COPY OF RECEIPT DATED 31.03.2015, ISSUED BY OUR OWN ENGLISH HIGH SCHOOL - ABUDHABI.**
- **EXHIBIT P12 TRUE COPY OF RECEIPT DATED 13.07.2015, ISSUED BY BRIGHT BUS TRANSPORT-ABUDHABI.**
- **EXHIBIT P13**
- **TRUE COPY OF RECEIPT DATED 13.07.2015, ISSUED BY GEMS UNITED INDIAN SCHOOL LLC-ABUDHABI.**
- **EXHIBIT P14 TRUE COPY OF TENANCY CONTRACT EXECUTED BY BINCY SUSAN IN FAVOUR OF LAND LORD.**
- **EXHIBIT P15 TRUE COPY OF CERTIFICATE DATED 12.07.2015 ISSUED BY GEMS UNITED INDIAN SCHOOL - ABUDHABI.**
- **EXHIBIT P16 TRUE COPY OF OBJECTION TO THE I.A.NO.1859/2015, PREFERRED BY THE ORIGINAL PETITIONER.**
- **EXHIBIT P17 TRUE COPY OF ORDER DATED 08.12.2016 PASSED BY THE FAMILY COURT, THIRUVANANTHAPURAM IN I.A.NO. 1859/2015 (IMPUGNED ORDER)**
- **EXHIBIT P18 TRUE PRINT OUT OF WATSAPP MESSAGES BETWEEN THE RESPONDENTS.**
- **EXHIBIT P19 TRUE COPY OF MEDICAL CERTIFICATE ISSUED BY SPECIALIST NEUROLOGY DOCTOR OF UNIVERSAL HOSPITAL, ABUDHABI.**
- **EXHIBIT P20 TRUE COPY OF I.A.NO. 4305/2017 (PETITION TO ADVANCE THE CASE)PREFERRED BY THE 1ST RESPONDENT.**
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**EXHIBIT P21**
**EXHIBIT P22**
**EXHIBIT P23**
**TRUE COPY OF OBJECTION TO I.A.NO. 4305/2017 SUBMITTED BY THE COUNSEL FOR THE RESPONDENTS.**
**TRUE COPY OF I.A.NO. 4304/2017 (PETITION FOR INTERIM CUSTODY) PREFERRED BY THE 1ST RESPONDENT.**
**TRUE COPY OF I.A.NO. 4409/2017 (URGENT PETITION TO GET THE IMPUGNED ORDER DATED 26.10.2017) PREFERRED BY THE 2ND RESPONDENT, WITH MEMO PENDING BEFORE FAMILY COURT, THIRUVANANTHAPURAM.**
/True copy/
