a place continuously for a certain period. Therefore, ordinary residence is
something more than a temporary residence and it can be the ordinary
residence of the parents in a case of themselves residing together or of
either the parents as well in a situation when both parents are living apart.
The Apex Court in Rosy Jacob v. Jacob Chakramakkal[(1973) 1 SCC
840] held that the controlling consideration governing the custody of the
children is the welfare of the children and not the right of the parents. The
dictum in Hareendran Pillai v. Pushpalatha [2007(1) KLJ 842] is to the
effect that when parties have permanent residence within the jurisdiction of
a particular Family Court, that court can be taken to have jurisdiction to
entertain a petition for custody.
12. In Jajabhai v. Pathankhan [(1970) 2 SCC 717] the Apex Court
held that where the mother and father had fallen out and were living
separately and the minor daughter was under the care and protection of
her mother, the mother could be considered as the natural guardian of the
minor girl.
13. The dictum of the Apex Court in Smt.Jeewanti Pandey v.
Kishan Chandra Pandey [AIR 1982 SC 3] is contextually relevant and is
extracted hereinbelow:-
"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 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."
A Division Bench of this Court in Vasu.V. and others v. Muralidharan and
others [2009(1) KHC 443(DB)] in a case wherein the father of a minor girl
child aged 10 years, whose wife was no more, and the child was pursuing
her education at Pune under the custody of her maternal grandparents,
and in a circumstance, when the application seeking custody of the child
came up for consideration before the Family Court at Palakkad on the
ground of his residence there and the maternal grandparents of the minor
girl resisted the claim contending that only the courts at Pune would have
jurisdiction to entertain the issue as the child was residing there, held that,
the court at Palakkad had jurisdiction to entertain the matter as the child's
natural father was residing at Palakkad. The court further held:-
"5. ..................................................................... ...............
The phrase "ordinarily resides" indicates ordinary residence even
at the time of presentation of the application. The emphasis is
undoubtedly on the minor's ordinary place of residence.
6. ..............................................................................................
The question as to the ordinary residence of a minor is always to
be decided on the facts and particulars of each case. Ordinarily, a
child's ordinary residence will be the place of residence of the
parents. The mere fact that a minor child has to temporarily go
outside the ordinary residence either for the purpose of continuing
the education or because of the fact that the parents are
temporarily employed else where by itself will not determine that
place as the place of ordinary residence. In other words, ordinary
residence must be something more than a temporary residence
even though such residence is spread over a long
period. ......................."
What emanates from the above is that in order to be
ordinary residence, there must be more than a temporary residence and
that must not have been occasioned out of circumstances of constraints.
The deduction is that there cannot be any straight jacket formula that could
be adopted by the courts dealing with issues of territorial jurisdiction in
matters relating to custody of children or appointment of guardian for them.
On the contrary, the guiding factors for the court should be the facts and
circumstances of the case on its hand. The court must look into the facts
and circumstances of each case to ascertain whether the minor whose
guardianship or custody is in issue, is residing ordinarily in a particular
place for the purpose of assumption of jurisdiction by a family court of that
place. Therefore, the facts and circumstances of each case must be looked
into, to ascertain whether a person can be said to be ordinarily residing at a
given place. 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 parents' employment. But a
minor can always retain the place of residence of his/her mother.
19. The meaning of the words 'ordinarily resides' changes and is
capable of being understood differently according to the circumstances to
which it is made applicable. It is not the duration of stay, that matters but
the intention of the parties. But, in the case of a minor he cannot be taken
to have any independent intention to reside at a particular place during his
age of minority. Therefore, his intention can only be that of his/her parents
and if they are living separated, then either of them with whom he/she was
residing, immediately prior to the preferring of the application for
appointment as guardian. In case the parents are not alive, the place of
the person in whose custody he/she is or who is showing more concern
about his/her welfare and upbringing, would be of relevance while deciding
the question of jurisdiction of the court based on territory. The decisions
referred supra would also give an indication that the court while considering
the custody application filed by a party has to arrive at a finding about the
place of ordinary residence of a minor based on the attendant
circumstances brought forth by the parties in the form of pleadings.
20. In the backdrop, the circumstances available in the case on
hand, made available by either parties to the application seeking custody
have to be looked into. Since the issue involved is relating to appointment
of guardian for the minor, the place where the minor ordinarily resides only
has relevance. We have already said, being a minor, he cannot be
presumed to have any independent place of residence apart from that of
his parents or persons in whose custody he was at the relevant time of
applying for the purpose.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE K.SURENDRA MOHAN
&
MRS. JUSTICE MARY JOSEPH
23RD DAY OF AUGUST 2016
OP (FC).No. 148 of 2016
SALINI Vs UMASANKARAN
O.P(FC) No.148 of 2016 is filed by Smt.Salini, the petitioner in
O.P.No.573/2015, who is the mother of a child, namely Adithya Shankar,
challenging the order of the Family Court, Kozhikode dated 29.10.2015 in
I.A.No.1249/2015 in O.P.No.573/2015. O.P(FC) No.194 of 2016 is filed by
Sri.Umasankar, the petitioner in O.P.No.706/2015 on the files of the Family
Court, Thrissur, who is the father of the child, challenging the order of the
Family Court,Kozhikode dated 16.10.2015 in O.P.No.573/2015.
2. The Registry has received a communication from the Presiding
Officer of Family Court, Kozhikode informing that as per its order dated
29.10.2015 in I.A.No.1249/2015, further proceedings in O.P.No.573/2015 was
stayed under Section 14(1) of the Guardians and Wards Act, 1890 (for short
'the Act'), on the reason of parallel proceedings pending before the Family
Court, Thrissur as O.P.No.706/2015. The matter was reported under Section
14(2) of the Act to determine the Court having the authority to decide on the
issue of custody of the child. When the matter was placed before the Judges
in charge of the respective Judicial Districts, it was decided to place the matter
on the Judicial side as suo motu Matrimonial Reference, and the same was
approved by the Honourable the Chief Justice. Subsequently, the
Presiding Officer of the Family Court, Thrissur had also reported the same
matter to this Court for necessary direction as per Section 14(2) of the Act.
Therefore, the matter has come up before us as Matrimonial Reference.
3. The permanent custody of a minor child namely Adithya Shanker,
aged 3= years was sought by Sri.Umasankar and Smt.Salini, his father
and mother respectively in the Family Court, Thrissur and Kozhikode in two
separate proceedings initiated as O.P.Nos.706/2015 and 573/2015.
Admittedly, the minor child Adithya Shankar was born to them out of their
marriage solemnised on 9.1.2010 at Karthika Kalyanamandapam at
Mukkom, Kozhikode.
4. The couple spent their initial days of marital life happily and
peacefully. Thereafter, the relationship got strained and accordingly, the
parties started residing separately. It is in the said circumstances that
applications have been moved under various forums seeking for
appointment as the guardian of the minor child.
5. The pleadings of the parties in the respective O.Ps. are necessary
to be dealt with before proceeding to decide on the issue of territorial
jurisdiction of the family court to entertain an application seeking
appointment of a guardian. The rival pleadings of the parties in the
respective O.Ps. are contextually relevant. Those would reveal that the
parties are consensual on certain aspects and those aspects alone need to
be adverted to while dealing with the issue relating to territorial jurisdiction.
6. The pleadings of Sri.Umasankar in O.P.No.706/2015 are to the
following effect:-
The marriage between himself and Smt.Salini was solemnised
on 9.1.2010 at Mukkam auditorium at Arikkode, Kozhikode as per Hindu
religious rites and ceremonies. He went abroad after 1= months' stay
together and later on, she joined him. She got conceived and in the month
of March 2011, left Gulf for delivery and gave birth to the minor boy child
Adithya Shankar at Thiruvananthapuram on 04.10.2011. Thereafter, he
returned to the country to celebrate the 28th day ceremony of the child. On
the child attaining 6 months, she joined him at Dubai. After sometime, she
obtained a job as Nurse at ICCONS, Hospital, Kavalappara, Shornur and
left Dubai to join the job without his permission. Thereafter, the depth of
their relationship started degrading for several reasons. Having been
informed of allegations about the immorality of his wife, he rushed to the country
in November 2014. When she was questioned about the allegations
against her, she retorted and stated to him that she would continue her
wayward life. He again visited the country on 14.4.2015 to shift the
residence of his wife and his minor son to a flat at Poonkunnam, Thrissur
owned by his sister to stay along with them. While continuing the stay
there, the petitioner overheard the conversation of his wife with one
Praveen and saw the photographs taken along with him. He questioned
her about those aspects, but she responded to him badly and left the flat
for residing with her parents. Thereafter, the child was staying with his
father at the flat at Poonkunnam, Thrissur. He intends to take his son
abroad and to admit him to a school there for education. In the
circumstances, the original petition was preferred by him before the Family
Court, Thrissur seeking permanent custody of his son.
7. The cause of action for preferring the original petition was stated
to have originated on 9.1.2010, when the marriage of himself with the
respondent was solemnised; further on 14.4.2015 when the petitioner last
resided together with the respondent at Poonkunnam, Thrissur and
thereafter, at Poonkunnam, Thrissur where the child continued his
residence. Based on the cause of action as narrated above, it is
contended that the Family Court, Thrissur has jurisdiction to entertain the
original petition.
8. The pleadings raised by Smt.Salini in O.P.No.573/2015 before the
Family Court, Kozhikode are to the following effect:-
The marriage of the parties was solemnised on 9.1.2010 at
Karthika Kalyanamandapam, Mukkam, Mampatta situated near the
paternal ancestral house of Smt.Salini as per Hindu religious rites and
ceremonies. After the marriage, she along with her husband and her in-
laws resided at a rented house at Ottappalam. After some time of the
marriage, himself and her in-laws started ill-treating her both mentally as
well as physically based on the poor financial background of her family.
She was also accused of the insufficiency of the money and gold
ornaments given to her at the time of marriage. After one month of the
marriage, the first respondent left for Dubai and the ill-treatment continued
by her in-laws. Therefore, she was constrained to shift to her parental
home at Thiruvanananthapuram. She was taken to Dubai by her husband
on 4.4.2010. She got conceived and left Dubai for delivery in the month of
May 2011 and she gave birth to her son on 4.10.2011 at
Thiruvananthapuram. Out of fear of ill-treatment, she did not join her in-
laws, but continued her stay alternatively at Thiruvananthapuram and at
her paternal ancestral home at Mukkam, Kozhikode. On 17.5.2012, she
was taken to Dubai by her husband. Thereafter, except for short visits to
the country at times, she stayed at Dubai along with her husband and child
till January,2014. The next visit to Dubai was on 19.5.2014 for getting the
visa renewed. Thereafter, she returned to the country on 18.6.2014. In the
month of November 2014, her husband came on leave and stayed along
with her and the child at her paternal ancestral home at Mukkam,
Kozhikode. Her husband returned to Dubai in the month of
December,2014. Out of fear of ill-treatment, she did not join her in-laws,
but continued her stay either at her paternal ancestral home at Mukkam or
at the parental home at Thiruvananthapuram. On 9.4.2015, as directed by
her husband, herself and the child went to Thrissur and started residing
along with respondents 2 to 5 who are her sister-in-law and children at 3B
Omega Crown Flat, Thrissur. During the course of such stay, respondents
2 to 5 started raising allegations of immorality against her and on getting
informed, her husband rushed to the country. After questioning, she was
driven out from the flat by her husband. The child was detained in the flat.
Thereafter, her husband left for Dubai after entrusting the custody of the
child to respondents 2 to 5. On the very next day, the petitioner went to the
flat at Poonkunnam, Thrissur to take the child. But, she was threatened by
them and was driven out stating that the child was not with them. The child
then was aged three and a half years and out of her pain and stress in
living separated from him and for the purpose of admitting him in the
nursery class, the custody of the child has become necessary and
accordingly, the application was filed seeking to appoint her as his
guardian.
9. The cause of action is stated to have originated on 9.1.2010,
when the parties got married; further on 14.4.2015, when the child Adithya
Shankar was detained unauthorisedly by respondents 2 to 5 in their flat at
Thrissur and thereafter, within the limits of Pannikkode Amsom at
Kozhikode wherein the parties cohabited last as husband and wife.
10. The law on the question of jurisdiction of a court to entertain an
application for custody of a child is specifically incorporated in Section 9 of
the Act. The relevant provisions are extracted hereinbelow for easy
reference:-
"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.
(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.
(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."
Sub-section (1) of Section 9 specifically provides that an application with
respect to the guardianship of the person of the minor shall be made to the
District Court having jurisdiction over the place where the minor ordinarily
resides. Similarly, sub-section (2) provides that an application with respect
to the guardianship of the property of the minor is also to be made to the
District Court having jurisdiction over the place where the minor ordinarily
resides or the place where the property of the minor , if any, he is having, is
situated.
11. The meaning of the word 'ordinarily resides' signifies dwelling in
a place continuously for a certain period. Therefore, ordinary residence is
something more than a temporary residence and it can be the ordinary
residence of the parents in a case of themselves residing together or of
either the parents as well in a situation when both parents are living apart.
The Apex Court in Rosy Jacob v. Jacob Chakramakkal[(1973) 1 SCC
840] held that the controlling consideration governing the custody of the
children is the welfare of the children and not the right of the parents. The
dictum in Hareendran Pillai v. Pushpalatha [2007(1) KLJ 842] is to the
effect that when parties have permanent residence within the jurisdiction of
a particular Family Court, that court can be taken to have jurisdiction to
entertain a petition for custody.
12. In Jajabhai v. Pathankhan [(1970) 2 SCC 717] the Apex Court
held that where the mother and father had fallen out and were living
separately and the minor daughter was under the care and protection of
her mother, the mother could be considered as the natural guardian of the
minor girl.
13. The dictum of the Apex Court in Smt.Jeewanti Pandey v.
Kishan Chandra Pandey [AIR 1982 SC 3] is contextually relevant and is
extracted hereinbelow:-
"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 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."
A Division Bench of this Court in Vasu.V. and others v. Muralidharan and
others [2009(1) KHC 443(DB)] in a case wherein the father of a minor girl
child aged 10 years, whose wife was no more, and the child was pursuing
her education at Pune under the custody of her maternal grandparents,
and in a circumstance, when the application seeking custody of the child
came up for consideration before the Family Court at Palakkad on the
ground of his residence there and the maternal grandparents of the minor
girl resisted the claim contending that only the courts at Pune would have
jurisdiction to entertain the issue as the child was residing there, held that,
the court at Palakkad had jurisdiction to entertain the matter as the child's
natural father was residing at Palakkad. The court further held:-
"5. ..................................................................... ...............
The phrase "ordinarily resides" indicates ordinary residence even
at the time of presentation of the application. The emphasis is
undoubtedly on the minor's ordinary place of residence.
6. ..............................................................................................
The question as to the ordinary residence of a minor is always to
be decided on the facts and particulars of each case. Ordinarily, a
child's ordinary residence will be the place of residence of the
parents. The mere fact that a minor child has to temporarily go
outside the ordinary residence either for the purpose of continuing
the education or because of the fact that the parents are
temporarily employed else where by itself will not determine that
place as the place of ordinary residence. In other words, ordinary
residence must be something more than a temporary residence
even though such residence is spread over a long
period. ......................."
14. A ruling of the Division Bench of this Court in S.Prabhu v.
Rajani.R. [2007(1) KHC 887] is also relevant in the context and is
extracted hereinbelow:-
"5. The ordinary residence of the child can be
the ordinary residence of the either of the parents as
well in a situation where both the parents are living
apart. "
15. Sri.Nirmal, the learned counsel for the petitioner in O.P(FC)
No.148 of 2016 during the course of his argument has also drawn our
attention to the decision reported in Smt.Surinder Kaur Sandhu v.
Harbax Singh Sandhu and another [AIR 1984 SC 1224]. In that case,
the Apex Court had the occasion to consider a case where a father of a
minor, whose marriage was solemnised in India, the spouse being an
Indian, and who had made England their home after marriage, later on
rushed to India with the minor boy. In a writ petition filed by the mother
then before the English High Court of Justice(Family Court), the court
directed the father to hand over the custody of the minor boy to the mother
or her agent forthwith. Armed with the order of the English High Court, the
mother filed a writ petition before the High Court of Punjab and Haryana
seeking for the production and custody of her minor son. The High Court
dismissed her petition, which order was reversed by the Supreme Court in
appeal by Special Leave and held as under:-
"10.We may add that the spouses had set up their
matrimonial home in England where the wife was working
as a clerk and the husband as a bus driver. The boy is a
British citizen, having been born in England, and he holds a
British passport. It cannot be controverted that, in these
circumstances, the English Court had jurisdiction to decide
the question of his custody. The modern theory of Conflict
of Laws recognises and,in any event, prefers the jurisdiction
of the State which has the most intimate contact with the
issues arising in the case. Jurisdiction is not attracted by
the operation or creation of fortuitous circumstances such as
the circumstance as to where the child, whose custody is in
issue, is brought or for the time being lodged. To allow the
assumption of jurisdiction by another State in such
circumstances will only result in encouraging forum-
shopping. Ordinarily, jurisdiction must follow upon functional
lines. That is to say, for example, that in matters relating to
matrimony and custody, the law of that place must govern
which has the closest concern with the well-being of the
spouses and the welfare of the offsprings of marriage. The
spouses in this case had made England their home where
this boy was born to them. The father cannot deprive the
English Court of its jurisdiction to decide upon his custody
by removing him to India, not in the normal movement of the
matrimonial home, but by an act which was gravely
detrimental to the peace of that home; The fact that the
matrimonial home of the spouses was in England,
establishes sufficient contacts or ties with that State in order
to make it reasonable and just for the Courts of that State to
assume jurisdiction to enforce obligations which were
incurred therein by the spouses. (See International Shoe
Company v. State of Washington (1945) 90 L Ed 95, which
was not a matrimonial case but which is regarded as the
fountainhead of the subsequent developments of
jurisdictional issues like the one involved in the instant
case). It is our duty and function to protect the wife against
the burden of litigating in an inconvenient forum which she
and her husband had left voluntarily in order to make their
living in England, where they gave birth to this unfortunate
boy." (emphasis supplied)
16. The dictum has relevance in the context on hand and can safely
be accepted to draw a conclusion as to which court has territorial
jurisdiction to decide the question. As in the case referred supra, the minor
child along with his mother was shifted to Thrissur as directed by his father.
In any view of the matter, the shifting to Thrissur and stay there at the
house of the sister of the father cannot be said to be intended by the
mother and the child. Apart from all the above, the stay was only for a
period of short duration that too immediately prior to the preferring of
O.P.No.706 of 2015 by Sri.Umasankar seeking permanent custody of the
child before the Family Court, Thrissur. It can be deduced from his
pleadings in the original petition filed by him that he intends to take the
child to Dubai to pursue his education there. Therefore, the temporary stay
at Thrissur may be perceived as an arrangement managed by the father of
the child intending to get him in his permanent custody. The child being
only three and a half years, the legal position also stands in favour of the
mother when questions relating to custody are in issue.
17. The principles emanating from the various decisions supra on
the point are enumerated and those would guide us to arrive at a finding
about the jurisdictional issue involved in the case.
(1) The courts in seizin of issues relating to custody shall
bear in mind that the welfare of the child is of
paramount importance when the jurisdictional issue is
under its consideration.
(2) Undoubtedly the child's ordinary place of residence
would be the place of abode of parents when he is in
the company of them.
(3)Custody applications would normally come in
circumstances of strained relationship of the parents
and the consequent living of either of them separately;
in cases of retention of the child by in-laws or other
relatives after the death of either of the spouse; and in
case of retention of the child by some of his relatives in
a case where both his parents are not alive. Living
apart can also be on reasons of one among the
spouses being employed abroad or elsewhere in the
country. In case of the spouses living apart, or are no
more, the person with whom the child shares his
residence for a considerably long period should be
given preference by the court while dealing with
custody applications.
(4) In case the parties have a permanent residence or a
regular home and the child out of circumstances of
compulsion of his education or parents' employment is
constrained to stay at different places, the court should
see, the place where the permanent residence is built
by the parties intending thereby to stay together
lifelong would be of relevance while the jurisdictional
issue is in seizin of a court.
18. The aspects referred supra are not exhaustive, but only
illustrative indications. What emanates from the above is that in order to be
ordinary residence, there must be more than a temporary residence and
that must not have been occasioned out of circumstances of constraints.
The deduction is that there cannot be any straight jacket formula that could
be adopted by the courts dealing with issues of territorial jurisdiction in
matters relating to custody of children or appointment of guardian for them.
On the contrary, the guiding factors for the court should be the facts and
circumstances of the case on its hand. The court must look into the facts
and circumstances of each case to ascertain whether the minor whose
guardianship or custody is in issue, is residing ordinarily in a particular
place for the purpose of assumption of jurisdiction by a family court of that
place. Therefore, the facts and circumstances of each case must be looked
into, to ascertain whether a person can be said to be ordinarily residing at a
given place. 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 parents' employment. But a
minor can always retain the place of residence of his/her mother.
19. The meaning of the words 'ordinarily resides' changes and is
capable of being understood differently according to the circumstances to
which it is made applicable. It is not the duration of stay, that matters but
the intention of the parties. But, in the case of a minor he cannot be taken
to have any independent intention to reside at a particular place during his
age of minority. Therefore, his intention can only be that of his/her parents
and if they are living separated, then either of them with whom he/she was
residing, immediately prior to the preferring of the application for
appointment as guardian. In case the parents are not alive, the place of
the person in whose custody he/she is or who is showing more concern
about his/her welfare and upbringing, would be of relevance while deciding
the question of jurisdiction of the court based on territory. The decisions
referred supra would also give an indication that the court while considering
the custody application filed by a party has to arrive at a finding about the
place of ordinary residence of a minor based on the attendant
circumstances brought forth by the parties in the form of pleadings.
20. In the backdrop, the circumstances available in the case on
hand, made available by either parties to the application seeking custody
have to be looked into. Since the issue involved is relating to appointment
of guardian for the minor, the place where the minor ordinarily resides only
has relevance. We have already said, being a minor, he cannot be
presumed to have any independent place of residence apart from that of
his parents or persons in whose custody he was at the relevant time of
applying for the purpose. In the case on hand, evidently, the parents of the
minor have no permanent common place of abode. It is also an admitted
fact that the father of the minor boy is employed at Dubai and accordingly,
was a resident there. The pleadings elucidate the reality that the minor,
during his three and a half years of life span, has been shifted from place to
place for one reason or the other. It can be deduced from the rival
pleadings of the parties that immediately prior to the filing of the
applications, while the husband was on leave, the parties resided along
with the minor at Kozhikode and only on 9.4.2015 as directed by the
former, the wife and the child moved to Thrissur to stay at the residence of
the sister of the former.
21. Admittedly, the marriage was solemnised at an auditorium at
Mukkam, Kozhikode and their permanent place of abode was not in the
country. Smt.Salini has no plea in O.P.No.573/2015 regarding the place
where herself and her husband stayed immediately after their marriage.
But, a specific plea in that regard is there for Sri.Umasankar in
O.P.No.706/2015 that they had stayed along with his family members in a
rented house at Shornur for one and a half months. Sri.Umasankar has no
plea in O.P.No.706/2015 regarding the place where his wife stayed while
he was abroad. The pleadings drive us to the fact that after their initial stay
at the country, Sri,Umasankar left for Dubai leaving Smt.Salini with his in-
laws. Smt.Salini has a case that due to the ill-treatment faced at the
matrimonial home after her husband left for Dubai, she had shifted her stay
along with her parents at Thiruvananthapuram. It is also her case that after
one and a half month's stay in the country, she joined her husband at
Dubai. They stayed together and on getting conceived she returned
therefrom to the country for delivery. She delivered the child at
Thiruvananthapuram. Sri.Umasankar had only pleaded in O.P.No.
706/2015 about the intermittent periods of stay for which he was available
in the country. He has not pleaded about the place of stay of Smt.Salini
and his son in the country during the period of his stay abroad. But, he
had pleaded specifically in the application that in the month of April, 2015,
on his request, his wife and son moved to the flat at Poonkunnam, Thrissur
owned by his sister to stay along with herself and her family members.
Indisputably, the stay of Smt.Salni and the minor at Thrissur was
immediately prior to the filing of the respective applications and lasted only
for a few days. According to Sri.Umasankar, there were allegations of
immorality against Smt.Salini and on questioning those, she left the flat at
Thrissur. According to Smt.Salini, based on the allegations of immorality,
she was ill-treated by her sister-in-law and husband and was thrown out
from the flat at Thrissur. Both parties have not stated anything in the
respective original petitions, where Smt.Salini stayed thereafter. But, it is
seen from the description of the cause of action in O.P.No.573/2015, that
the parties cohabited together with the child lastly at Pannikode in
Kozhikode Taluk, within the territorial limits of Family Court, Kozhikode
whereas, O.P.No.706/2015 is silent regarding the place of their last stay
together and cohabitation.
22. Sri.Umasankar in O.P.No.706/2015 claims jurisdiction for Family
Court, Thrissur to entertain the issue regarding the guardianship based on
the sole fact that the parties resided together with the child lastly in a flat at
Thrissur. But, it is pertinent to note from his own averments that the
shifting of the stay of his wife and child to the flat at Thrissur was only on
9.4.2015. It is his admitted case that at the relevant time, he was abroad.
It is also his plea that on 14.4.2015, he returned to Thrissur to join his wife
and child, but she left the place on the same day. It is discernible from the
pleas that the stay of his wife and child at Thrissur was only for a period of
very short duration of six days and cohabitation was not there even for a
single day. It can also be drawn from the pleadings in O.P.No.706/2015
that Sri.Umasankar left for Dubai on the succeeding day of her departure
from the flat at Thrissur, leaving the child with his sister and her family
members. It could safely be concluded from the aforesaid aspects that the
stay of the child at Thrissur was only for a temporary short period and that
too as directed by the father and not as intended either by the child or his
mother. It is not clear from the pleadings in either of the original petitions,
the place from which the wife and the child were asked to shift their stay to
Thrissur. But, it is discernible from the description of the cause of action
in O.P.No.573/2015, that the parties last resided with the child and
cohabited at the paternal ancestral house at Kozhikode. Since the parties
have no place of permanent abode at Thrissur and in view of the fact that
the flat at Thrissur is not owned by either of the parties, the family court at
Thrissur, by no stretch of imagination can be said to have territorial
jurisdiction to entertain O.P.No.706/2015. In view of the plea of Smt.Salini
in O.P.No.573/2015, to the effect that the marriage of the parties was
solemnised in a Kalyanamandapam at Kozhikode, that the parties had
stayed with the child and cohabited immediately prior to the filing of the
original petitions at the said place, it is the Family Court, Kozhikode that
has territorial jurisdiction in the matter of deciding the question of
appointment of a guardian for the child.
23. In view of the aforesaid discussions, we are of the view that the
Family Court, Kozhikode, which is in seizin of O.P.No.573/2015 has got
territorial jurisdiction to decide the issue relating to appointment of the
guardian of the child. The F.C., Thrissur has no jurisdiction to consider
O.P.No.706/2015 and to decide on the issue of the permanent custody of
the minor. The Matrimonial Reference is answered accordingly.
In view of the answer of the Matrimonial Reference as
aforesaid, O.P.(FC) Nos.194/2016 and 148/2016 are dismissed. Parties
shall bear their respective costs.
K.Surendra Mohan, Judge.
Mary Joseph, Judge.
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