Dismissed

Divya J.Nair v. S.K.Sreekanth

Kerala HC12 Sept 2018Mat.Appeal/1256/2017

Case brief

AI extract

What is this about?

The High Court of Kerala held that jurisdiction for guardianship applications is determined by the minor's ordinary residence, not the natural guardian's residence. Reversing the lower court, it affirmed that the Family Court lacked jurisdiction as the child resided in Neyyattinkara, dismissing the appeal against findings of non-jurisdiction.

What did the court decide?

Appeal dismissed; no interference with lower court's finding that Family Court lacked jurisdiction.

Divya J.Nair Vs S.K.Sreekanth — Child Custody and Guardianship | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940

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Mat.Appeal.No. 1256 of 2017

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AGAINST THE ORDER IN I.A.NO.1310/2017 IN OP 196/2017 of FAMILY COURT, OTTAPPALAM DATED 20-09-2017

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APPELLANT:

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DIVYA J.NAIR

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D/O. JAYAN, AGED 27 YEARS, MANGATT THODI, KAVALAPPARA P.O., SHORNUR, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.P.JAYARAM

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RESPONDENTS:

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S.K.SREEKANTH AGED 32 YEARS, S/O. THIRUVILASSERY VEETTIL SIVARAMAKRISHNAN NAIR, KADAVATTARAM DESOM, NEYYATTINKARA, THIRUVANANTHAPURAM DIST., PIN - 695 121.

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BY ADV. SRI.J.R.PREM NAVAZ

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05.09.2018, THE COURT ON 12.09.2018 DELIVERED THE FOLLOWING:

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Mat.Appeal No.1256/2017

'CR'

JUDGMENT

R.Narayana Pisharadi,J

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The solitary test for determining jurisdiction of the court to entertain an application for guardianship of the person of the minor is the 'ordinary residence' of the minor (Ruchi Majoo v. Sanjeev Majoo: AIR 2011 SC 1952).

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Section 9(1) of the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act') provides that if the application is with respect to 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.

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What is meant by the expression “the place where the minor ordinarily resides” in Section 9(1) of the Act? Does it always mean the ordinary residence of the natural guardian of the minor and no other place? These questions essentially fall for consideration in this case.

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Now, the facts in brief: The appellant is the mother

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and the respondent is the father of a girl now aged six years.

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Mat.Appeal No.1256/2017

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On 05.04.2017, when the girl was aged 4½ years old, the mother filed O.P.No.196 of 2017 in the Family Court, Ottappalam for granting her the custody of the child. The respondent entered appearance in the case. He filed an application as I.A.No.1310/2017 praying that the question of jurisdiction of the court to try the case may be decided as a preliminary issue. He contended that the minor child is residing with him in his house at Neyyattinkara and that the child was studying in a school near his house and therefore, the Family Court, Ottapalam had no jurisdiction to try the case. The appellant filed objection to the application I.A.No.1310/2017. As per the order dated 20.09.2017, the Family Court, Ottapalam found that the child was ordinarily residing in Neyyattinkara and not within its jurisdiction and therefore, it has no jurisdiction to try the case in view of Section 9(1) of the Act. The court below ordered that the original petition filed by the appellant shall be returned to her for filing in the court having jurisdiction. The aforesaid order is challenged in this appeal.

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We have heard the learned counsel for the appellant as well as the respondent.

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We have already adverted to the provision contained

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in Section 9(1) of the Act. As held by the Apex Court in Ruchi Majoo (supra), the solitary test for determining jurisdiction of the court to entertain an application for guardianship of the person of the minor is the place of ordinary residence of the minor. Challenge to the jurisdiction of the court will have to be tested in the context of the averments made in the pleadings of the parties.

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In the instant case, briefly stated, pleadings of the appellant in the original petition filed by her in the Family Court, are as follows: The marriage between the appellant and the respondent was solemnised on 10.07.2011 at Guruvayoor. A girl child was born to them on 07.07.2012. The appellant was subjected to physical as well as mental cruelty by the respondent. He took her and the child to her house and left them there. While so, on 19.03.2017, the respondent came to her house and forcibly took away the child from her possession. On such allegations, on 05.04.2017, the appellant filed the original petition praying that the respondent may be directed to give her custody of the minor child.

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During the enquiry in the application

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I.A.No.1310/2017, no evidence was adduced by the appellant. Exts.A1 to A6 documents were marked on the side of the respondent. On the basis of the 'Adhar Card' issued in the name of the child and her school records and the ration card issued in respect of the family of the respondent, the court below found that the child is studying in a school in Neyyattinkara from 2016 onwards and that she was ordinarily residing in Neyyattinkara at the time of institution of the case.

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The question as to “ordinary residence” of a minor is always to be decided on the facts and particulars of each case. The expression 'where the minor ordinarily resides' excludes 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. Where the application is filed soon after such removal, the place of such removal has to be ignored for the purpose of determining the jurisdiction of the court to entertain the application. The new place, to which the minor may have gone or may have been removed, can become the place of

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ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period. Actual place of residence of the minor at the time of filing the application does not necessarily determine the jurisdiction of the court. Mere factual residence at a place at the time of the proceeding is not sufficient to confer jurisdiction. Ordinary residence means more than a temporary residence, even though such residence is spread over a long period (See

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Sarada Nayar v. Vayankara Amma : 1957 KLT 466 ).

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"Residence" has a connotation in law. It is not meant to take in places of temporary stay, however long the stay may be. Though a casual residence is also residence in a way, such transitory residence is not meant to be included within the purview of residence in law, unless a particular context justifies its inclusion. Permanent residence is the place where a person is expected to be ordinarily found. The place where mere physical presence is found may not necessarily be the place where he ordinarily resides. The expression "ordinarily resides" connotes a regularly settled home and not a place of stay where the children are obliged to dwell by force of circumstances or compulsion of the

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employment of parents (See Chandy v. Mary : 1988 (1)

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KLT 611 ).

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11. In Jeewanti Pandey v. Kishan Chandra Pandey

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(AIR 1982 SC 3) , the Supreme Court, dealing with a situation where jurisdiction of a court was based on 'the ground of residence' has observed as under :

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"12. In order to give jurisdiction on the ground of 'residence', something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the Court in which the respondent is sued, is his natural forum. The word 'reside' is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood in its ordinary sense of having one's own dwelling permanently, as well as in its extended sense. In its ordinary sense 'residence' is more or less of a permanent character. The expression 'resides' means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has a fixed home or abode. In Webster's Dictionary, 'to reside' has been defined as meaning 'to dwell permanently or for any length of time', and

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words like 'dwelling place' or 'abode' are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change. If a person lives with his wife and children, in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides."

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It can be gathered from the decisions referred to

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above that the ordinary place of residence of the child would be the place of residence of his parents. When the parents are living separately, it has to be ascertained with whom the child was residing on a permanent basis or for a considerably long period of time immediately prior to the filing of the application. Ordinary residence means more than a temporary residence. Actual place of residence of the minor at the time of filing the application does not necessarily determine the jurisdiction of the court. Mere factual residence at a place at the time of the proceeding is not

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sufficient to confer jurisdiction. The expression "ordinarily resides" connotes a regularly settled home and not a place of stay where the children are obliged to dwell by force of circumstances.

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In the instant case, it is not stated in the original petition filed by the appellant in the court below, on which date she became estranged from the respondent. However, learned counsel for the appellant submitted that they have been living separately from 08.03.2017 onwards. Due to enstrangment between the parties, whatever be the reason, the appellant has been staying in her house at Ottapalam with the child from 08.03.2017 onwards. Till that date the child was residing with her parents in the house of the respondent at Neyyattinkara. The school records produced by the respondent would reveal that the child has been studying in a school near the house of the respondent from the year 2016 onwards. As per the allegation raised in the original petition filed by the appellant, it was on 19.03.2017 that the respondent took the child forcibly from her house at Ottapalam. The original petition was filed in the court below on 05.04.2017. In other words, except for the

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short period from 08.03.2017 to 19.03.2017, the child had

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been residing in the house of the respondent at Neyyattinkara. In such circumstances, the finding made by the lower court that the child has been ordinarily residing in the house of the respondent at Neyyattinkara cannot be found fault with. On the basis of the temporary stay or residence of the child for the short period from 08.03.2017 to 19.03.2017 in the house of the appellant at Ottappalam, it cannot be found that the child has been ordinarily residing within the jurisdiction of the Family Court, Ottapalam.

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14. In Reegan Jayakumar v. Shami Shahul (2015

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(3) KHC 164 , a Division Bench of this Court has held as follows:

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"We are of the view that when parents are residing separately in two different places and the minor is studying in a school at Pune and resides there, the District Court, Pune where the minor ordinarily resides will get the jurisdiction according to the word "ordinarily resides". For ascertaining that jurisdiction, the Family Court can verify the school certificate, extract of admission register and other relevant documents to decide the disputed question of fact for identifying the place where "ordinarily resides".

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15. In Prakash v. Padmakumari : (2013 KHC

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3340), another Division Bench of this Court has held as follows:

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"In so far as this case is concerned, the respondent claimed to be an ordinary resident of Vadakara and that therefore, according to her, the Family Court, Vadakara has jurisdiction to entertain the petition for the guardianship of the minor. As against this, the petitioner contended before the Family Court that he is a resident at Mumbai where the children are also residing and are studying. Since, in a case of this type where both parents are living separately, the place of residence of the parents can be taken as the place of residence of minors. However the issue that requires to be decided by the Family Court is whether the respondent can be said to be an ordinary resident of Vadakara merely for the reason that she left her matrimonial home at Mumbai and is now residing in her paternal house. ....... As indicated by this Court in this judgment referred to above "mere temporary residence" will not make it "ordinary residence" and something more that including an intention to remain at the place is necessary".

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However, learned counsel for the appellant

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contended that as per Section 6 of the Hindu Minority and

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Guardianship Act, 1956 the custody of a minor, who has not completed the age of five years, is ordinarily to be with the mother and, therefore, it is the place of residence of the mother that determines jurisdiction in relation to the claim for custody of a minor of tender age. Learned counsel for the appellant contended that at the time when the appellant filed the application for getting custody of the child, the child had not completed the age of five years and therefore, the appellant was then the natural guardian of the child. Learned counsel for the appellant would contend that the mother being the natural guardian of the child who was aged below five years, the ordinary residence of the minor child can only be the residence of the mother.

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Section 6(a) of the Hindu Minority and Guardianship Act provides that the natural guardians of a Hindu minor in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are, in the case of boy or an unmarried girl, the father and after him, the mother. The proviso to Section 6(a) states that the custody of a minor who has not completed the age of five years shall ordinarily be with the

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mother.

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We are unable to accept the contention raised by the learned counsel for the appellant that the mother being the natural guardian of the child, who was aged below five years, the ordinary residence of the minor child can only be the residence of the mother. It is not the place of residence of the natural guardian that determines the jurisdiction of the court under Section 9(1) of the Act. It is the place where the minor ordinarily resides which determines the jurisdiction. There is no presumption that the minor is deemed to reside at the place where his natural guardian resides. If the expression “the place where the minor ordinarily resides” in Section 9(1) of the Act means only the residence of his natural guardian, the legislature would have specifically provided so. If the legislature intended that the residence of the natural guardian of the child should determine the ordinary residence of the child, it would have used the expression to that effect in Section 9(1) of the Act. It did not do so.

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The view which we have taken above gets support

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from the decisions of various other High Courts also (See Arunkumari v. Jhala Harpal Singh Natwar Singh:AIR 1954 Saurastra 152, Harihar Pershad Jaiswal v. Suresh Jaiswal: AIR 1978 AP 13, Virabala v. Shah Harichand Ratanchand : AIR 1973 Guj 1, Shah Harichand Ratanchand v. Virbbal : AIR 1975 Guj 150, Harshadbhai Zinabhai Desai v. Bhavnaben Harshadbhai Desai : AIR 2003 Guj 74, Himanshu Mahajan v. Rashu Mahajan : AIR 2008 HP 38 and Sanjay Agarwal v. Krishna Agarwal: AIR 2008 Raj 194).

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In Himanshu Mahajan v. Rashu Mahajan :

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AIR 2008 HP 38, the Himachal Pradesh High Court has held as follows:

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“Section 6(a) of 1956 Act and Section 9 of 1890 Act operate in different fields. Both are independent of each other. Whereas Section 6 of 1956 Act deals with the issue of the natural guardianship of a Hindu minor, and Clauses (a), (b) and (c) define the natural guardians, Section 9 of 1890 Act lays down the rule with respect to the territorial jurisdiction of the Court where the application for the custody of a child has to be filed. This Section clearly relates to and refers the "ordinary residence" of the child and says that only such Court shall have the jurisdiction to entertain the petition where the child "ordinarily

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resides". The issue of the natural guardianship of the child being the subject matter of Section 6 of 1956 Act cannot be thrust upon, linked with or imported into Section 9 of 1890 Act. If the Legislature intended that the residence of the mother or the father of the child should determine the ordinary residence of the child himself, it should have used the expression to that effect in Section 9 of 1890 Act. It did not do so. It used and specified the expression "ordinary residence" of the child himself. The expression is unambiguous and totally certain as well as clear”.

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Learned counsel for the appellant submitted that

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the mother has to travel more than 200 kilometres from her residence at Ottapalam to Neyyattinkara to conduct the case and it would cause much hardship to her. Convenience of a party will not confer jurisdiction on a court. Considerations of convenience would be relevant only when more than one court is having the jurisdiction to try the case.

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In the aforesaid circumstances, we see no ground to interfere with the finding of the lower court that the minor child was not ordinarily residing within the territorial limits of jurisdiction of that court and that it had no jurisdiction to try the case. The appeal is liable to be

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dismissed.

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Consequently, we dismiss the appeal. No costs.

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(Sd/-)

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C.K.ABDUL REHIM, JUDGE

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