IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WP(C).No. 20066 of 2010(R) -------------------------- OPG&W.329/2010 of FAMILY COURT, KOTTAYAM .................... PETITIONERS: --------------- 1. SONY ABRAHAM, AGED 37 YEARS, S/O.T.P.ABRAHAM, THOPPIL HOUSE, UTHIMOODU.P.O, PATHANAMTHITTA. 2. T.P.ABRAHAM, THOPPIL HOUSE, UTHIMOODU.P.O, PATHANAMTHITTA. 3. RACHELAMMA ABRAHAM, AGED 69 YEARS, THOPPIL HOUSE, UTHIMOODU.P.O, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT: --------------- ASHA ELIZABETH PHILIP, D/O.C.P.PHILIP, REPRESENTED BY HER POWER OF ATTORNEY HOLDER C.P.PHILIP, "BETHEL" KOLLAMPARAMBIL HOUSE, BINDU NAGAR HOUSING COLONY, NATTAKOM.P.O, KOTTAYAM-686 013. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(C) No.20066 of 2010 ********************* Dated this the 30th day of June, 2010 JUDGMENT BASANT, J. Respondent/mother had filed an application before the Family Court, Kottayam, claiming custody of her minor child born in the wedlock with the 1st petitioner herein. Petitioners 2 and 3 are respondents 2 and 3 in the O.P and they are paternal grandfather and grandmother respectively of the child. The wife is employed now in Ireland and has her permanent residence at Kottayam. When the wife returned from Ireland, she claimed custody of the child. She filed an application as O.P(G&W) No.329 of 2010. The petitioners herein, ie. the respondents before the court below, entered appearance and raised a dispute regarding territorial jurisdiction. The court below took up that matter for consideration. At that juncture it appears that the petitioners did not appear and remained exparte. The court below considered the objection raised and evidently following the precedent in Vasu v. Muralidharan [2009 (1) KLT 480] held that the court, within the jurisdiction of which one of the parents has his/her residence can be reckoned to have W.P(C) No.20066 of 2010 2 jurisdiction to entertain the proceedings relating to custody of the children, who now reside with the other spouse. Accordingly the court below proceeded to pass Ext.P4 order. 2. The petitioners had been set exparte. The petitioners wanted the order setting them exparte to be set aside. They filed another application. By Ext.P5 order that petition was dismissed because the petitioners were absent. The petitioners in this Writ Petition want to challenge Exts.P4 and P5 orders. 3. In the light of the decision in Vasu (supra), ordinary residence of the child must be reckoned as ordinary residence of either of the parents when parents are living apart. In the light of that proposition, we find absolutely nothing wrong in the order passed by the Family Court that the Family Court has territorial jurisdiction over the subject matter. Even assuming that the petitioners were personally present at the time when that question was considered, the learned Judge would have passed Ext.P4 order only. The grievance that the petitioners were absent and were not heard before the decision was taken in Ext.P4 is thus found to be of no substance. Ext.P4 does not warrant interference in these circumstances. 4. We now come to the question that the petitioners have been set exparte. The learned counsel for the petitioners W.P(C) No.20066 of 2010 3 submits that the petitioners want to participate in the proceedings from the present stage. We need only observe that the petitioners should be permitted by the court below to participate in the proceedings from the present stage, notwithstanding the fact that they have been set exparte earlier. Final orders still remain to be passed, it is conceded. The petitioners' application to recall any witnesses already examined must also be considered by the Family Court on its merits and appropriate orders passed. We do not, in these circumstances, find any necessity to invoke our extra ordinary constitutional jurisdiction under Article 227 of the Constitution of India to interfere with Ext.P5 order also. 5. This Writ Petition is, in these circumstances, dismissed, but with the above observations. 6. Hand over a copy of this order to the learned counsel for the petitioners. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/