Allowed

Soni Gerry v. Gerry Douglas

Kerala HC8 Oct 2012Mat.Appeal/152/2011

Case brief

AI extract

What is this about?

Appeal against Family Court order dismissing interim custody application due to lack of territorial jurisdiction and Supreme Court order. Court set aside order, directed Fresh consideration of jurisdiction and custody based on Vasu v. Muralidharan principles, noting ordinary residence definition.

What did the court decide?

Impugned order set aside; Family Court directed to pass fresh orders on I.A. No. 1585/2010.

Soni Gerry Vs Gerry Douglas — Child Custody and Guardianship | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

¶4

MONDAY, THE 8TH DAY OF OCTOBER 2012/16TH ASWINA 1934

¶5

Mat.Appeal.No. 152 of 2011 ( ) -----------------------------I.A.1585/10 IN OP.1117/2009 of FAMILY COURT,TRIVANDRUM

¶6

APPELLANT(S)/PETITIONER:

¶7

SONI GERRY W/O.GERRY DOUGLAS, ELUVATHINGAL HOUSE, HOUSE NO.IV MOSQUE LANE, KESAVADASAPURAM, ULLOOR VILLAGE THIRUVANANTHAPURAM-695 004.

¶8

BY ADVS.SRI.P.B.SAHASRANAMAN T.S. HARIKUKMAR SRI.K.JAGADEESH

¶9

RESPONDENT/RESPONDENT:

¶10

GERRY DOUGLAS, AGED 42 YEARS, S/O.K.SAMUEL, WORKING AS LOGISTIC OFFICER, KUWAIT VATHANIYA & TELECOM, P.B.NO.613, SAFAT 13007, RESIDING AT KUNNAMPALLIL, MULAMPUZHA P.O. PANDALAM, PATHANAMTHITTA.

¶11

BY ADV. SRI.VINOD KUMAR.C

¶12

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶13

PIUS C. KURIAKOSE &

¶14

BABU MATHEW P. JOSEPH, JJ.

¶15

Mat. Appeal No. 152 of 2011

¶16

------------------------------------------------------------Dated this the 8^th day of October, 2012

¶17

JUDGMENT

¶18

Pius C. Kuriakose, J.

¶19

Under challenge in this appeal is the order passed by the Family Court, Thiruvananthapuram, dismissing an application filed by the petitioner mother for interim custody of two minor children, by name, Sonam Gerry and Piyush Gerry. The learned Family Court has, under the impugned order, upheld the contention raised by the respondent that the Family Court lacks in territorial jurisdiction to entertain the original petition filed by the mother. The learned Family Court would also find under the impugned order that the present I.A. seeking interim custody filed by the mother is not maintainable in view of the order passed by the Honourable Supreme Court in SLP (Crl.) Nos.6844 - 6845 of 2010 dated 18.10.2010. The learned Family Court formulated two

¶20

[M.A.No.152/2011] 2

¶21

points for decision on the basis of the contentions raised by the respondent, the father of the minor children. They were: (1) Whether the court has territorial jurisdiction to entertain this petition? (2) Whether the petitioner/mother is entitled to get the interim custody of the two minor children from the respondent/father?

¶22

The evidence adduced by the parties consisted of Exts.A1 to A7 on the side of the mother and Exts.B1 to B6 on the side of the father. Appreciating the evidence which came on record, particularly Exts.B1 to B6, the learned Family Court found that the two minors were pursuing their studies in Indian Community School, Kuwait and hence it could not be said that they are ordinarily residing within the limits of Thiruvananthapuram Family Court. Reliance was placed by the learned Judge in this context on Section 9(1) of the Guardians and Wards Act which provides that the court having jurisdiction to entertain application with respect to guardianship of the person of the minor shall be the court having jurisdiction in the place

¶23

where the minor ordinary resides. Thus, point No.1 was answered against the petitioner. Thereafter, the learned Family Court has, under the impugned order, proceeded to consider the

¶24

[M.A.No.152/2011] 3

¶25

implications of the order passed by the Supreme Court in SLP (Crl.) Nos.6844 - 6845 of 2010 and found that by virtue of that order the petitioner is foreclose d from approaching the Family Court.

¶26

We have heard the submissions of Mr. T.S. Harikumar, learned counsel for the appellant and those of Mr. C.Vinod Kumar, learned counsel for the respondent. Mr. Harikumar would place strong reliance on the judgment of a Division Bench of this Court in Vasu v. Muralidharan [2009(1) KLT 480] and argue that the ordinary residence of the child for the purpose of Section 9 of the Guardians and Wards Act shall be the ordinary residence of either of the parents of the child if both the parents of the child are living apart. Mr. Harikumar further submitted that the finding of the learned Family Court that the order passed by the Supreme Court in the Special Leave Petitions would prevent the petitioner from approaching the Family Court is contrary to what has been directed by the Supreme Court. Per contra, Mr. Vinod Kumar would submit that the present appeal which is directed against an interlocutory order is not maintainable in law. He further submitted that even if this Court is inclined to examine the correctness of the order passed by the Family Court for

¶27

[M.A.No.152/2011] 4

¶28

invoking the powers under Article 227, then also it may not be straightaway found that the minor is ordinarily residing within the local limits of the Thiruvananthapuram Family Court. The ordinary residence of the minor is a matter to be decided on the basis of the evidence adduced by the parties. The matter may be sent back to the Family Court with directions to enter fresh finding on the issue regarding the ordinary residence after affording opportunity to both sides to adduce further evidence, so submitted by the learned counsel.

¶29

We have given our anxious consideration to the rival submissions addressed at the Bar. It is very clear to our mind that the view of the Family Court in the impugned order that the order passed by the Supreme Court in SLP (Crl.) Nos. 6844 - 6845 of 2010 would stand in the way of the petitioner approaching the Family Court for interim custody of her minor children is erroneous. According to us, it is clear, on a reading of that order, that after making an arrangement for the temporary custody of the minors for a particular specified period, the Supreme Court has given liberty to the parties to approach the Family Court for further reliefs.

¶30

¶31

[M.A.No.152/2011]

¶32

We find considerable force in the submission of Mr. Harikumar that the court below erred in concluding that the two minors were ordinarily residing outside the limits of the Thiruvananthapuram Family Court at the relevant time. It is obvious that the judgment of the Division Bench of this Court in Vasu v. Muralidharan [2009(1) KLT 480]was not noticed by the Family Court while deciding the I.A.

¶33

We are not at all impressed by the argument of Mr.Vinod Kumar regarding the maintainability of the present appeal. The judgment of the Division Bench of this Court in Abdul Jaleel v. Sahida [1997(1) KLT 734] gives much support to the argument of the appellant that the present appeal which is directed against the interlocutory order deciding the issue of maintainability is maintainable. Even otherwise, we are of the view that when it is found that a subordinate judicial authority has committed a grave error in terms of a jurisdictional issue this Court would be perfectly justified in invoking its supervisory jurisdiction under Article 227 for correcting the above error. The result of the above discussion is as follows:

¶34

The appeal is allowed. The impugned order is set aside. The learned Family Court is directed to pass fresh orders in

¶35

¶36

[M.A.No.152/2011]

¶37

I.A.No.1585/2010 keeping in mind the principles laid down by this Court in Vasu v. Muralidharan [2009(1) KLT 480] and any other binding precedents which may be cited before the Family Court by either side. If the Family Court finds that the I.A. is maintainable the court should seriously think in terms of expediting the trial of the main O.P. also as the O.P. is of the year 2009. Parties will enter appearance before the Family Court on 31.10.2012.

¶38

PIUS C. KURIAKOSE, JUDGE.

¶39

BABU MATHEW P. JOSEPH, JUDGE.

¶40

krs.

Soni Gerry v. Gerry Douglas

Case brief

What is this about?

What did the court decide?

Soni Gerry v. Gerry Douglas

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

P.K.Farida Vs Asarintavida Faizal

M.K.Sreejith Vs Deepa.K.

M.K.Sreejith Vs Deepa.K.

Sivaraman Vs Sindhy P.V

Vasanthakumari Vs Manoharan

K.J.Mathew Vs Jyothi @ Thressia