IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 WP(C).No. 31927 of 2007(S) -------------------------- OP.1341/2005 of FAMILY COURT, ALAPPUZHA .................... PETITIONER(S): --------------- MS.LAKSHMI SANKAR, 33 GALLOP LANE, SOMERSET, NEW JERSEY 08873, U.S.A. BY ADV. SMT.K.V.BHADRA KUMARI RESPONDENT(S): --------------- SURESH K.SURENDRANATHAN, C/O.K.S.NAIR, ALIND SWITCHGEAR QUARTERS, WARD NO.8, H.NO.224, MANNAR, KUTTEMPEROOR, ALAPPUZHA(DT) 689 622. ADV. SRI.S.ANIL KUMAR (CHERTHALA) & SRIT.R.MOHANAKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON 24.10.08 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE CERTIFICATE ISSUED BY THE SUPERIOR COURT OF NEW JERSEY EXT.P2-TRUE COPY OF THE PETITION FILED BY THE RESPONDNET HEREIN AS OP 1341/05 BEFORE THE FAMILY COURT, ALAPPUZHA. EXT.P3-TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN OP 1341/05 EXT.P4-TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE MINOR CHILD RISHIKESH NAYAR. EXT.P5-TRUE COPY OF AMENDMENT PETITION, I.E.1060/07 EXT.P6-TRUE COPY OF OBJECTION TO THE IA FILED BY THE RESPONDENT EXT.P7-TRUE COPY OF ORDER IN WPC 24198/07 OF THIS COURT EXT.P8-TRUE COPY OF ORDER DATED 28.9.07 IN OP 1341/05 OF FAMILY COURT, ALAPPUZHA. RESPONDENTS' EXTS: EXT.R1- TRUE COPY OF THE CONSENT LETTER DATED 10.10.2004 GIVEN BY THE RESPONDENT HEREIN TO THE PETITIONER. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.31927 of 2007-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of October, 2008. JUDGMENT Ramachandran Nair, J. This writ petition is one challenging the preliminary judgment passed by the Family Court, Alappuzha in O.P.No.1341/2005 to the effect that it has got territorial jurisdiction to entertain the petition filed by the husband seeking custody of the child. 2. The basic facts leading to the dispute are the following: The parties married on 20.8.1999 at Trivandrum. After the marriage, the husband who is a B. Tech. Degree holder, proceeded to California, U.S.A. to avail a job there. The wife accompanied him subsequently, in December 1999. She is a post-graduate in M.A. Journalism and Mass Communications. The minor son was born in the wedlock on 15.4.2003 at U.S.A. The parties continued their residence along with the child in U.S.A. Pursuant to the disputes with the wife, the husband came back to India and later filed Ext.P2 original petition in October 2005 seeking for a decree for allowing him to keep the custody of the child, invoking Sections 12 and 25 of the Guardian and Wards Act, read with Section 7 of the Family Courts WPC 31927/2007 -2- Act. The address of the wife shown in the petition is “33 Gallop Lane, Somersat New Jersey, U.S.A. Her parents are there in New Jersey, U.S., from the year 2000. Initially the wife filed objections, Ext.P3, to the main petition. Thereafter, by way of an amendment she sought to challenge the territorial jurisdiction of the Family Court and the amendment was allowed on payment of cost Rs.1,000/- which was paid. Ext.P5 is the said amendment petition. Thereafter, the question of jurisdiction was heard as a preliminary issue. Ultimately, Ext.P8 order has been passed by the Family Court overruling the objections filed by the wife challenging the maintainability of the petition before the Family Court at Alappuzha. 3. One more thing which is to be mentioned is that the wife had obtained Ext.P1, an order passed by the Superior Court of New Jersey by which the custody of the minor child was ordered in her favour. 4. In Ext.P8 order, the Family Court found in favour of the husband regarding the maintainability of the petition, mainly for the reason that “ordinarily the permanent residence of a Hindu minor is the residence of his father, i.e. the father's fixed abode or house. Though the child was born in 2003 at U.S.A., since his parents were residing there at that time, the permanent residence or ordinary residence of the child cannot be taken as California in U.S.A., where the parents were residing along with the child or WPC 31927/2007 -3- New Jersey, where the children is now residing along with her mother, the respondent and herself resides along with her parents as the child has to move along with his parents till his attaining majority.” Ultimately, the conclusion reached is that for considering a petition for guardianship, the permanent residence of the father has to be taken as the ordinary residence of the minor which is within the jurisdiction of the Family Court, Alappuzha and hence, that court has territorial jurisdiction to entertain the petition. The above finding is under challenge in this writ petition. 5. We have heard Smt. K.V. Bhadra Kumari, learned counsel for the petitioner, Shri S. Anil Kumar and Shri.T.R.Mohanakumar, learned counsel for the respondent and Shri V. Philip Mathews, learned counsel for the impleading petitioner. 6. Learned counsel for the petitioner contended that the wife and the child are residing in New Jersey in U.S.A. They are therefore not settled in India. Even going by the averments in para 27 of Ext.P2 filed by the husband, in August 2004 both the husband and wife got the green card approved. The child was born in U.S.A. and is a citizen of that country. The husband alone came back to India and has filed the petition seeking guardianship of the minor. Even before the said petition was filed, the wife moved the Superior Court of New Jersey which has passed Ext.P1 order WPC 31927/2007 -4- granting custody of the child to the mother. That order is still in force. Apart from that, the welfare of the child has to be considered. For the purpose of considering the jurisdiction of the Family Court, what is required under Section 9 of the Guardian and Wards Act, 1890 is to find out the place where the child ordinarily resides. Herein, the child never resided within the jurisdiction of the Alappuzha Court and even now the child is not “ordinarily residing within the jurisdiction of that court.” It is also pointed out that even in Ext.P2 petition filed by the father, no proper averments have been made as to how the court at Alappuzha will get jurisdiction and the averments contained in para 50 are not sufficient to hold that the Family Court, Alappuzha will have jurisdiction to decide the matter. Learned counsel for the petitioner relied upon the principles stated by the Apex Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and another {(1984) 3 SCC 698}. 7. Learned counsel appearing for the husband/first respondent mainly contended that the child being a minor and the father being the natural guardian, the child will have to follow the residence of the said natural guardian and that alone is the true test to decide the jurisdiction of the court. The respondent is a native of Mannar, within Alappuzha District. His WPC 31927/2007 -5- permanent address is that of the family house in that village. It is also contended that the child was removed by the mother from their house at California and such acts of the mother cannot be considered for the purpose of considering the jurisdiction of the Family Court at Alappuzha. It is submitted that the finding rendered by the Family Court that the permanent residence of the father has to be taken as ordinary residence of the minor, is perfectly justified. Reliance is also placed on the decisions of this court in Chandy v. Mary Baneena (1988 (1) KLT 611) and Hareendran Pillai v. Pushpalatha (2007 (1) KLT 842) and that of the Delhi High Court in Ramjilal Yadav v. Dalip K. Yadav (1999 (1) HLR 237). 8. The petition filed by the father as per Ext.P2 is under the Guardian and Wards Act. Section 9(1) of the said Act provides that “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.” As far as the Family Courts Act is concerned, Section 7 of Chapter III concerns with jurisdiction of the court. The other provision that is relevant is Section 6 of the Hindu Minority and Guardianship Act, 1956. The said provision along with the proviso, is extracted below: WPC 31927/2007 -6- “6. Natural guardians of a Hindu minor.- The natural guardian 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.- (a) in the case of a boy or an unmarried girl – the father, and after him the mother. Provided that the custody of a minor who has not completed the age of five years shall ordinarily with the mother; 9. The facts pleaded by the parties show that the marriage was held in Trivandrum on 20.8.1999. The husband proceeded to California to take up a new job after the marriage. The wife also accompanied him there. The child was born in the year 2003. Ext.P1 is the certificate issued by the Superior Court of New Jersey wherein the sole legal and physical custody of the child was awarded to the petitioner/wife. This order is passed in October 2005. According to her, she received summons to appear before the Family Court, Alappuzha on 6.12.2005. Even in Ext.P2 petition filed by the husband under Sections 12 and 25 of the Guardian and Wards Act, her address in U.S.A. alone is shown. In para 50 of Ext.P2 regarding the cause of action, what is stated is that “the cause of action of the OP arise in the above mentioned circumstances and on 20.8.1999, the date of marriage, and on 1.10.2004, the date the counter petitioner deserted the petitioner WPC 31927/2007 -7- continuously thereafter, at Mannar Village, which is within the jurisdiction of this Hon'ble Court.” If the case of the husband is accepted, desertion by the wife happened in U.S.A. and not in this country. That happened in California. No cause of action arose within Mannar Village, as shown in para 50 of Ext.P2. She continues her residence along with her child at New Jersey which fact is not disputed by the respondent. Her parents are residing there. It is submitted that she is having a job there. Therefore, it can be conclusively held that at no point of time the child was 'ordinarily residing' within the jurisdiction of the Family Court, Alappuzha. 10. Then, the question is whether, for the purpose of deciding the jurisdiction what is relevant is only the permanent residence of the husband in India, as contended by the learned counsel for him. It is further argued that the place of residence of the mother is by compulsion. 11. Going by Section 9 of the Guardian and Wards Act, the place of ordinary residence of the child is the determinative factor. Herein the same has to be found out from the facts shown above. It is true that the father is the natural guardian, going by Section 6 of the Hindu Minority and Guardianship Act. But going by the proviso, in a case where the child is below the age of 5, the mother is the natural guardian. It is well settled that while granting custody of the child, the paramount consideration is the WPC 31927/2007 -8- welfare of the minor. The court will have to consider various aspects to find out--after referring to the competing claims of the father and the mother--as to who among them should be appointed as a guardian. 12. Bearing in mind this aspect let us analyse the principles stated in the various decisions relied upon by either of the parties, rendered by this court and the Apex Court. In Chandy's case (supra), the meaning of the word “resides” in Section 9 of the Guardian and Wards Act, 1890 came up for consideration. It was held in para 5 as follows: “The word “reside” is by no means free from ambiguity as the word 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. “Residence” has 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. The residence must answer a qualitative as well as quantitative test and the two elements of factum at animus must concur. Facts and circumstances of each case must be looked into to ascertain whether a person can be said to ordinarily reside at a given place. A 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 acceptable attributes of the WPC 31927/2007 -9- expression “resides” in contexts like this are, to make an abode for a considerable time; to dwell permanently or for a length of time; or to have a settled abode for a time etc. It is true that the place of residence at the time of filing of the application under the Act is not decisive to ascertain the place of ordinary residence, as it would be easy to move the minor children from one place to another and from one jurisdiction to another. The expression “ordinarily resides” connote a regularly settled home and not a place of study where the children are obliged to dwell by force of circumstances or compulsion of parents' employment.” Hence, the place of temporary stay has to be excluded, but the place where a regularly settled home is there will satisfy the meaning of the expression “ordinarily resides”. The facts of the said case show that the parents were in Dubai and the children were brought to Kerala by their mother and admitted in a school in Ernakulam District. The husband filed a petition under the Guardian and Wards Act before the court at Ernakulam and the mother contended that the ordinary residence of the children is in Dubai and hence the District Court, Ernakulam has no jurisdiction. In the light of the above facts, it was held by this court that it is difficult to hold that the ordinary residence of the minor children at the time of filing of the petition was at Dubai. In fact, when they were brought back to Kerala, they were residing with their maternal grandmother. It is in these circumstances, the WPC 31927/2007 -10- above conclusion was arrived at by this court. The main question considered by this court was whether a place of temporary stay, however long the stay, can be considered for the purpose of considering the meaning of the term “residence”. The residence must answer a qualitative as well as quantitative test and the two elements of factum at animus must concur. Therefore, that test has to be applied to the facts of this case. In Hareendran Pillai's case (supra) also, the same principle was reiterated. After referring to Section 6 of the Hindu Minority and Guardianship Act and the decisions of the Apex Court in Rosy Jacob v. Jacob Chakramakkal {(1973) 1 SCC 840} and Jajabhai v. Pathankhan {(1970) 2 SCC 71) and the decision of this court in Chandy v. Mary Baneena (1988 (1) KLT 611), their Lordships examined the scope of Section 9 of the Guardian and Wards Act. The facts of the said case show that the marriage occurred in Alappuzha District and they were also residing after the marriage along with the minor, within the jurisdiction of the Family Court, Alappuzha. The child was taken away from Alappuzha by the husband to Bahrain. Therefore, mere residence of the child at Bahrain could not be considered as a factum which will deprive the Alappuzha court of its jurisdiction. It is in the above factual situation the said case was decided to WPC 31927/2007 -11- hold that the Family Court, Alappuzha has got jurisdiction. The facts of the present case show that they are totally different. Again, their Lordships in the above said decision, stated that “though the father is the natural guardian of the minor above five years, on that ground alone he cannot have any preferential claim since the paramount consideration is the welfare of the minor.” Therefore, the contention raised by the learned counsel for the husband that for the purpose of considering the territorial jurisdiction, the child should be considered as ordinary resident within the jurisdiction where the permanent residence of the father is situated, cannot be accepted. 13. It may be mentioned herein that going by Ext.P1, the wife has secured custody of her child from the Superior Court of New Jersey. We will now consider the principle stated by the Apex Court in Surinder Kaur Sandhu's case (supra). The facts of the above case shows that the parents of the child who were Indian citizens, settled in England after the marriage and the child became a British citizen by birth. The child was brought to India by the father. Meanwhile, the mother obtained an order from a court in England directing her husband to deliver custody of the child to her. In the above factual situation, the relevant questions were WPC 31927/2007 -12- examined. After analysing the detailed facts, it was held in para 10 as follows: “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. Therefore, 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. Ordinarily, jurisdiction must follow upon functional lines and 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. In the present case the facts that the child is a British citizen and that the matrimonial home of the spouses was in England, establish 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.” 14. Therefore, the principle is well settled 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. Learned counsel for the respondent also relied upon the observation in the above judgment that “ordinarily, jurisdiction must WPC 31927/2007 -13- follow upon functional lines and is not attracted by the operation or creation of fortuitous circumstances,” and then contended that merely because the child was residing along with the mother in U.S.A., the right of the father to institute a suit in India seeking custody, is not taken away, as the child is presumed to be ordinarily residing with the father, he being the natural guardian. We may point out herein that in the above judgment, the Apex Court further laid down that Section 6 of the Hindu Minority and Guardianship Act cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. It has also been held that “it is the Court's duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily.” Judged in the light of the above principles, we would like to point out herein that the spouses had set up their matrimonial home in U.S.A., the boy is a U.S. Citizen as he was born in that country and he holds a U.S. Passport, a copy of which has been produced herein as Ext.P4. By merely choosing to come back to India after leaving the family at U.S., the father cannot claim that the jurisdiction in regard to the dispute regarding custody can only be before Indian courts and the U.S. Court has no jurisdiction. The following observation made in para 10 of the judgment in Surinder WPC 31927/2007 -14- Kaur Sandhu's case (supra) that “the fact that the child is a British citizen and that the matrimonial home of the spouses was in England, establish 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”, is apposite to the facts of this case. This is not a case where the wife had taken the child out of this country for a casual residence or by compulsion as contended by the learned counsel for the respondent and the impleading petitioner. Only on two occasions she came back to India; first time in November 2003 and later in December 2004. Both were casual visits. Admittedly going by the pleadings of the parties, she went back thereafter. On his return to U.S., the husband worked there for another 10 months before he came back to India, after their separation. 15. Another argument raised by learned counsel for the respondent and the impleading petitioner is that the question of jurisdiction was not raised in the pleadings of the petitioner, viz. Ext.P3 and only at a later stage after attending counselling alone, she raised this plea by way of an amendment and therefore since the said issue was not raised at the initial stage, the objection has to be rejected in toto. We are afraid, the said argument cannot be accepted at this point of time, in view of the fact that WPC 31927/2007 -15- the court below has, by the preliminary judgment, considered the objection regarding jurisdiction after allowing her to amend the pleadings. It is reported that the amendment was allowed after hearing the objections of the respondent also on payment of cost Rs.3,000/- which was received by the husband. The said order has become final. There was no change against the order allowing amendment of the pleadings to incorporate the specific objection regarding jurisdiction. Further, any question of jurisdiction goes to the root of the matter as it affects the very power and authority of the court to decide the dispute between the parties. Apart from that, such an objection has not been seen raised before the trial court which has therefore gone into the dispute regarding jurisdiction in detail in the impugned order. 16. It is pointed out by the learned counsel for the respondent that no sanctity can be attached to Ext.P1 order passed by the Superior Court of New Jersey, as his client was not heard before passing that order. He also relied upon the findings rendered by the Family Court in Ext.P8 order, to the effect that the said order is not binding on the respondent. Ext.P8 order shows that a copy of Ext.P1 order has been produced before the Family Court. The Family Court was of the view that the order passed by the Superior Court of New Jersey has nothing to do with the present case while considering the question of territorial jurisdiction. The main reason for WPC 31927/2007 -16- coming to the said conclusion is that no notice appears to have been served on the husband prior to the passing of the order. We are afraid, the said view of the Family Court cannot be said to be correct. Ext.P1 is a copy of