Remanded

Binju Mathew v. Ajay T. Thomas

Kerala HC16 Oct 2023OP (FC)/30/2023

Case brief

AI extract

What is this about?

The High Court held that jurisdiction under the Guardian and Wards Act depends on the minor's ordinary residence. Setting aside the Family Court at Irinjalakuda's order, the High Court invoked Section 9(3) to return the petition to the Ernakulam court where the child resides.

What did the court decide?

Set aside the Family Court's order and order the return of G.O.P. No. 1532/2022 to the Family Court, Ernakulam, invoking Section 9(3) of the Guardian and Wards Act.

Binju Mathew Vs Ajay T. Thomas — Child Custody and Guardianship | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶4

¶5

THE HONOURABLE MRS. JUSTICE C.S. SUDHA

¶6

MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
OP (FC) NO. 30 OF 2023

¶7

AGAINST THE ORDER/JUDGMENT GOP 1532/2022 OF FAMILY COURT, IRINJALAKUDA

¶8

PETITIONERS/RESPONDENTS:

¶9

1BINJU MATHEW
AGED 36 YEARS
D/O. MANAYIL VEETTIL MATHEW, MANAYIL VEETTIL,
VADUTHALA DESOM, CHERANELLUR VILLAGE,
KANAYANNUR TALUK, ERNKULAM DISTRICT, PIN – 682023

¶10

2ASHVI CHRISTAN
AGED 3 YEARS, (MINOR CHILD REPRESENTED BY MOTHER) BINJU MATHEW,
AGED 36 YEARS, D/O. MANAYIL VEETTIL MATHEW, MANAYIL VEETTIL,
VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK,
ERNKULAM DISTRICT., PIN – 682023

¶11

BY ADVS.
SHERRY J. THOMAS
JOEMON ANTONY
ANTONY NILTON REMELO
LIGISH XAVIER
P.J.UNNIKRISHNAN
RENISH RAVEENDRAN
THAMANA BAI

¶12

RESPONDENT/PETITIONER:

¶13

AJAY T. THOMAS
AGED 40 YEARS
S/O. THALIYANAYATH VEETTIL, THOMAS, PALATHINGAL ROAD, POYYA
VILLAGE P.O., KODUNGALLUR TALUK, PIN – 680733

¶14

BY ADV N.AJITH

¶15

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 16.10.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

OP (FC) NO. 30 OF 2023

JUDGMENT

Amit Rawal, J.

The present petition is directed against the order dated 23.11.2022 passed by the Family Court, Irinjalakuda in G.O.P No.1532/2022 holding that it has jurisdiction to try petition under Sections 7, 17, 25 of the Guardian and Wards Act and Section 7 of the Family Courts Act.

¶21

The facts in brief are that the parties to the lis, husband and wife, entered into a marriage on 18.10.2018 at Amalodbhava Matha Church, Valluvalli. Out of the wedlock, on 11.07.2019, male child was born. Parties lived together at matrimonial home till 25.04.2020 and thereafter, wife left matrimonial home and started residing with her parents.

¶22

Learned counsel appearing on behalf of the petitioner submitted that in the counter objection was taken with regard to the jurisdiction of the Court at Ernakulam for the reason that by invoking the provisions of Section 9(1) of the Guardian and Wards

¶23

OP (FC) NO. 30 OF 2023

¶24

¶25

Act, 1890, as the minor child since 25.04.2020 has been residing with the petitioner-mother-wife, who is living at Cheranellur Taluk, Kanayannur, which falls within the jurisdiction of Family Court, Ernakulam. Trial Court has erroneously without noticing the aforementioned facts decided the issue of the jurisdiction against the petitioner.

¶26

On the other hand, learned counsel appearing on behalf of the respondent-husband raised the objection qua maintainability of petition for the reason that already two petitions at the instance of the petitioner-wife seeking return of gold ornaments and maintenance are pending in the court at Irinjalakuda where the petition for permanent custody of the minor child has been filed. Thus no harm and prejudice would be caused in this present petition being heard by that court much less clubbed together.

¶27

We have heard the learned counsel for the parties and appraised paper book.

¶28

Section 9 of the Guardian and Wards Act, 1890, reads as under:

¶29

OP (FC) NO. 30 OF 2023

¶30

¶31

“9. Court having jurisdiction to entertain application. —

¶32

(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.

¶33

(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

¶34

(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. “

¶35

On perusal of the aforementioned provision, it is evident

¶36

that the jurisdiction of the Court for trying the petition seeking appointment of the guardian is at a place where the minor child ordinarily resides. Concededly, as per the averments in the petition, petitioner-wife is living in Cheranellur falling under the jurisdiction of Ernakulam since 25.04.2020. This fact has not been denied by the petitioner de hor of the fact that the wife has

¶37

¶38

OP (FC) NO. 30 OF 2023

¶39

instituted petition pending in the Court for other claims. The provisions of the Act provides that it has to be at the place where the child ordinarily resides. In this view of the matter, we set aside the order and invoke the provisions of Section 9(3) of the Act ordering the return of G.O.P.No.1532/2022 presented before the Family Court, Irinjalakkuda, in accordance with law.

Sd/-

AMIT RAWAL JUDGE

Sd/-

C.S. SUDHA JUDGE

nak

OP (FC) NO. 30 OF 2023

¶46

¶47

APPENDIX OF OP (FC) 30/2023

¶48

PETITIONER EXHIBITS

¶49

Exhibit P1THE TRUE COPY OF THE AFFIDAVIT DATED 9-
11-2022 FILED BY THE RESPONDENT SEEKING
THE TEMPORARY CUSTODY OF THE CHILD

¶50

Exhibit P2THE TRUE COPY OF THE COUNTER AFFIDAVIT
DATED 23-11-2022 FILED BY THE RESPONDENT

¶51

Exhibit P3THE CERTIFIED COPY OF THE ORDER DATED
23.11.2022 IN G.O.P 1532/2022

¶52

Exhibit P4THE TRUE COPY OF THE MEDICAL CERTIFICATE
ISSUED BY THE RENAI MEDICITY HOSPITAL
STATING THE INABILITY TO TRAVEL BY THE
MINOR CHILD DATED 3-1-2023

¶53

Exhibit P5THE TRUE COPY OF THE MEDICAL RECEIPT OF
THE ILLNESS OF HER FATHER ISSUED BY THE
ASTER MEDICITY HOSPITAL DATED 21.12.2022

Binju Mathew v. Ajay T. Thomas

Case brief

What is this about?

What did the court decide?

Binju Mathew v. Ajay T. Thomas

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kollam Polayathodu Pareediya Masjid Muslim Jama-Ath Vs Muhammed Rafeek

Kollam Polayathodu Pareediya Masjid Muslim Jama-Ath Vs Muhammed Rafeek

Santhosh Kumar.O.G., Vs Smrithi S.Kurup

M. Kesavadas Vs Sajini

Anila Vs Syam Mohan

Nikhil George, Vs Limiya Thomas