IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Tr.P(C).No. 166 of 2009() ---------------------------------- GO(P).412/2009 of FAMILY COURT,THRISSUR .................... PETITIONER/RESPONDENT ----------------------------------------- ASHA ROSHNI, AGED 30 YEARS, D/O.SUKUMARAN, SREE SAI, KOTEKANI, KASARAGOD POST, KASARAGOD DISTRICT. BY ADV. MR.SURESH KUMAR KODOTH RESPONDENT/PETITIONER --------------------------------------- G. UMASHANKER, AGED 38 YEARS, S/O.DR.GANGHADHARAN, UDAYAM MAIN ROAD, WAADAKKANCHERY, THRISSUR DISTRICT. BY ADV. MR.T.M.CHANDRAN, MR.P.R.NEELAKANDAN NAMBOODIRI, MR.V.A.SASIDHARAN , MR.JOSEPH ALBIN NEDUNTHALLY. THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ------------------------------- Tr.P.(C).NO.166 OF 2009 () ----------------------------------- Dated this the 28th day of July, 2009 O R D E R Petition for transfer is filed under Section 24 of the Code of Civil Procedure. Petitioner is the wife, and the respondent, the husband. Matrimonial disputes between the parties have given rise to a proceeding under the provisions of the Guardians and Wards Act, 1890 at the instance of the respondent father seeking the custody of two minor children who are at present admittedly under the care and custody of the petitioner mother. The respondent has filed the petition O.P.No.412/2009, declaring him as guardian of the minor children and also for their custody from the mother. Admittedly, at present, from 2006 onwards, the children are staying with the mother at her family house in Kasaragod. The children are aged six and four years with eldest now attending a School in Kasaragod. The petitioner mother has filed this petition seeking transfer of the above petition TPC.166/09 2 O.P.No.412/2009 to the Family Court, Kasaragod, highlighting the inconvenience and difficulties in going over to Family Court, Thrissur where it is now pending with the minor children to attend the case before that court as and when it is posted for enquiry. 2. Notice being given, the respondent has entered appearance. The learned counsel for the respondent stoutly opposing the application for transfer contended that the children are at present only having a temporary residence at Kasaragod and in considering the question of 'ordinary residence' as covered under Section 9 of the Guardians and Wards Act, the permanent residence of the minor children has to be taken into account and not their temporary residence. Another challenge raised by the learned counsel is that the question of territorial jurisdiction is a matter which require to be adjudicated if raised by the mother in the O.P. itself by the Family Court, Thrissur. At this stage, it may not be correct for this Court to consider that aspect in the transfer petition. The learned counsel has relied on two decisions rendered by TPC.166/09 3 this Court in proceeding under the Guardians and Wards Act to contend that ordinary residence of the children is to be the place where the children ordinarily reside and not their temporary residence. The decisions relied by the counsel are Prabhu v. Rajani (2007 (2) KLT SN 38 (C.No.53)) and Anitha Abraham v. Jacob Oommen (2003 (1) KLT 417). 3. I am not impressed by the challenges canvassed by the learned counsel for the respondent to resist the application for transfer. First and foremost, the District Court within whose jurisdiction the minor children are residing is the parent patriarch of the children. In a proceeding under the Guardians and Wards Act, the production of the children before the court as and when directed by the court is a must, and further more, it is the interest of the children more than the right of the parents that has to be considered in such proceedings. Paramount interest of the minor children and that alone is the material factor in resolving the disputes arising under the Guardians and Wards Act. In this transfer petition, I need not go into the question whether the place TPC.166/09 4 where the children are now residing for the last more than three years can be termed as their ordinary residence or not, that question if found necessary can be resolved by the Family Court, which ever that the court be where the proceedings is taken up for consideration. How far the mother, an estranged wife of the two minor children would be able to produce such children to a far of place is also a matter to be taken into account in deciding the question of transfer of the proceedings. The eldest minor child is attending to a school is also relevant in determining that question. Since I am not deciding the question whether Thrissur or Kasaragod is the ordinary place of residence of the children, I am not adverting to the decisions referred to by the counsel and its application in the present case. Prima facie, I am satisfied from the facts and circumstances presented the transfer of the case from the Family Court, Thrissur to the Family Court, Kasaragod is essential for the paramount interest and welfare of the minor children who have been residing there atleast for the last three years with their mother. I make it clear that I am not expressing any opinion that the place where the children are TPC.166/09 5 now residing is their ordinary place of residence as covered under Section 9 of the Guardians and Wards Act. It is open to the respondent, if so advised, to canvass the challenges regarding the jurisdiction of the Family Court, Kasaragod, the transferee court on transfer of the petition to determine that question and if such a challenge is raised, the court will decide it on the materials placed before it. Reserving the right of the husband to raise that challenge in the transferee court, I direct for transfer of the O.P. from the Family Court Thrissur to Family Court, Kasaragod. The Judge, Family Court, Thrissur shall transmit the records of the case forthwith to the transferee court, and that court on receipt of records shall issue notice to the parties for appearance. Revision is allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.M.C.NO. OF 2002 () ----------------------------------- Dated this the day of April, 2009 O R D E R S.S.SATHEESACHANDRAN JUDGE prp