IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Mat.Appeal.No. 137 of 2008() ---------------------------- OP.1302/2006 of FAMILY COURT, PALAKKAD .................... APPELLANT(S): RESPONDENTS 1, 2 AND 4 ------------------------------------- 1. MR. V.VASU, AGED 67 YEARS, RESIDING AT "MAITRI", S.NO. 91/2, KRISHNA TEMPLE LANE JAWALKAR NAGAR, PIMPLE-GURAV, PUNE-411027 MAHARASHTRA. 2. MRS. DEVAKI VASU, AGED 56 YEARS RESIDING AT "MAITRI", S.NO. 91/2, KRISHNA TEMPLE LANE, JAWALKAR NAGAR, PIMPLE-GURAV PUNE-411027, MAHARASHTRA. 3. MR. GOKULDAS V.VASU, AGED 39 YEARS PROFESSIONAL, RESIDING AT "MAITRI", S.NO. 91/2 KRISHNA TEMPLE LANE, JAWALKAR NAGAR PIMPLE-GURAV, PUNE-411027, MAHARASHTRA. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): PETITIONER AND 3RD RESPONDENT -------------------------------------------- 1. MR. MURALIDHARAN, S/O.MANIAN AGED 38 YEARS, BUSINESS, KIZAKKEMURI VANDAZHI, PALAKKAD, KERALA. 2. MRS.KALYANI,W/O.CHAMUKUTTAN AGED ABOUT 70 YEARS, NARIYANPARAMBIL HOUSE KATTUSSERI, ALATHUR, PALAKKAD, KERALA. ADVS. SRI.JOHNSON P.JOHN FOR R1 SRI.BABY MATHEW FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2009 ALONG WITH WPC NO. 37957 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. NO. 499 OF 2008 IN MAT. APPEAL NO. 137 OF 2008. DISMISSED 13.1.2009 Sd/-(P.R. RAMAN, JUDGE) Sd/-(C.T. RAVIKUMAR, JUDGE) P.R. RAMAN & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- MAT. APPEAL NO.137 OF 2008 & W.P.(C) NO.37957 OF 2008 --------------------------------------------------------- Dated this the 13th day of January, 2009 JUDGMENT Raman J. The maternal grandparents and the maternal uncle of a minor female child aged 10 years are the appellants who impugn the order passed by the Family Court, Palakkad in O.P. No.1302 of 2006 on the question of jurisdiction as a preliminary point, as requested for, holding that the said Family Court has jurisdiction to entertain the petition under the Guardians and Wards Act, 1890. The matter arises in the following background. 2. The father of the child who is an ordinary resident of Palakkad District preferred O.P. No.1302 of 2006 before the Family Court, Palakkad under Section 9 of the Guardians and Wards Act for getting custody of the minor child born in the wedlock between him and one Geeta. The marriage of Geeta with the first respondent was solemnised at Vishweshwara Temple, Palakkad on 14.11.1996. They lived together in the matrimonial home and on 10.9.1997, Geeta gave birth to a female child. Since, at that time the parents of Geeta were at Pune, having settled Mat. Appeal No.137/2008 & W.P.(C)No.37957/2008 2 there, she went to her parental home at Pune where the delivery took place. Subsequently, she returned to Vandazhi along with her husband and child and at Vandazhi she committed suicide in the year 1999. The suicide was alleged to be a dowry death and a criminal case is pending against the first respondent. However, Annexure I produced by the first respondent along with the counter affidavit shows that there was an agreement between the parties dated 21.8.2005 whereby it was agreed by the first respondent that temporary custody of the minor child could be given to the maternal grandparents. The child was thus with her grandparents at Pune and continuing her studies. There is an allegation that in terms of the compromise, the criminal case was not withdrawn. However, it is not a subject matter to be considered in this appeal. The first respondent/father preferred the present petition before the Family Court, as stated earlier, for custody of the minor child. The respondents in the Original Petition raised a contention that the Family Court, Palakkad has no jurisdiction to consider the petition as the minor does not reside within the jurisdiction of that court. Both sides did not insist for adducing evidence with regard to the said issue. Hence, the court below placed reliance on the pleadings and after hearing the parties decided the issue holding that the court has jurisdiction to decide the petition which is challenged in this appeal. Mat. Appeal No.137/2008 & W.P.(C)No.37957/2008 3 3. It is beyond dispute that the marriage between the first respondent and the said Geeta, the mother of the minor child, was solemnised at Palakkad, that there was an agreement between the parties as evidenced by Annexure I and that the child is now with her maternal grandparents and maternal uncle. The Family Court held that since the father is the natural guardian and he is an ordinary resident of Vandazhi, Palakkad District, the said court has jurisdiction in the matter and placed reliance on the decision of a Division Bench of this Court reported in Prabhu v. Rajani, 2007(2) K.L.T. S.N. 38 (Case No. 53). Though the learned counsel appearing for the respondents in this appeal would support the order, learned counsel for the appellants would contend that the said decision has no application to the facts of this case. According to them, that was a case where both the parents were alive whereas in this case, the mother of the child died in the year 1999. Learned counsel for the respondents also placed reliance on yet another decision of this Court reported in Sarada Nayar v. Vayankara Amma and Others, A.I.R. 1957 Kerala 158. 4. We have heard the parties at length. 5. As per Section 9 of the Guardians and Wards Act, an application Mat. Appeal No.137/2008 & W.P.(C)No.37957/2008 4 in respect of guardianship of the person of a minor has to be made to the District Court having jurisdiction in the place where the minor ordinarily resides. The expression "ordinary residence" of the minor is, however, not defined in the said Act and it is subjected to judicial interpretation. In Prabhu v. Rajani, 2007(2) K.L.T. S.N. 38 (Case No. 53), a Division Bench of this Court held that the ordinary residence of the child can be the ordinary residence of either of the parents as well in a situation where both the parents are living apart. We do not find any distinction possible merely because one of the parents is not living. It cannot be said that the above decision will apply only if both the parents are alive. If both the parents are alive and are residents of two different places, the residence of either of the parent can be the residence of the child. In other words, there will be two courts having jurisdiction. If one of the spouse is not living, necessarily the only other place having jurisdiction is the place where the spouse living resides. In Sarada Nayar v. Vayankara Amma and Others, A.I.R. 1957 Kerala 158, it was held that if a child is removed to a place, the place of such removal will be ignored for the purpose of determining the jurisdiction of the court to entertain the application and in spite of such removal, the minor will be deemed to have its residence at the place where he or she was ordinarily residing and the new place to which the minor may have gone or may have been removed Mat. Appeal No.137/2008 & W.P.(C)No.37957/2008 5 will become the place of ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period and the residence passed the stage of casual or temporary residence. It has been further held in the said decision that the expression "where the minor ordinarily resides" appears to have been deliberately used to exclude places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor. 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. Under Section 4(5)(b)(ii) of the Guardians and Wards Act, the word "court" means "in any matter relating to the person of the ward the District Court having jurisdiction in the places where the ward for the time being ordinarily resides or ...............". This Court therefore considered in Sarada Nayar's Case as to whether the place where the minor ordinarily resides for the time being can be the place to which the child was removed immediately preceding the date of filing the application and negatived the contention. 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. Mat. Appeal No.137/2008 & W.P.(C)No.37957/2008 6 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. Here, admittedly, the mother of the child died and the only natural guardian of the minor is the father. The maternal grandparents or the maternal uncle were having custody of the child as per the agreement between the parties and since they happened to reside at Pune, the child also continued to reside at that place. But, by no stretch of imagination can it be said that the ordinary residence of the father, who is the only natural guardian now alive, is not the residence of the child. The court below only held that Palakkad being the place where the father ordinarily resides, the court has jurisdiction to decide the issue. The marriage of the parties was solomnised at Palakkad, both the parties were living at Palakkad and the death of the mother also took place at Palakkad and thereafter, the first respondent continued to reside at his house at Palakkad. Therefore, we do not think there is any error committed by the court below in holding that it has got jurisdiction over the matter. The child is entitled to be maintained by his or her parents. Thus, in this case, the child has a right to be Mat. Appeal No.137/2008 & W.P.(C)No.37957/2008 7 maintained by the natural guardian. Right of maintenance includes right to reside as long as the child is a minor. As held by the Apex Court, the concept of maintenance must include provision for food and clothing and the like and take into account the basic need of a roof over the head (see Komalam Amma v. Kumarapillai Raghavan Pillai, 2008(14) SCALE 470). Therefore, the minor child has a right to reside with her father or in the absence, entitled to be paid a reasonable amount as part of the maintenance. This is also a matter which may go a long way in deciding the ordinary residence of a minor. In the light of the binding decision of this Court reported in Prabhu v. Rajani, 2007(2) K.L.T. S.N. 38 (Case No. 53) and for the above reasons, we hold that the Family Court, Palakkad has jurisdiction to decide the issue. Accordingly, we find no merit in the appeal. The appeal is accordingly dismissed. 7. W.P.(C) No. 37957 of 2008 is filed by the father of the minor child for a direction to call for the records relating to Civ. M.A. No.751 of 2007 pending before the District Court, Pune and to quash the proceedings. In the light of the discussion made above, the Writ Petition is dismissed as withdrawn. The observation made by us in the judgment as above is only for the Mat. Appeal No.137/2008 & W.P.(C)No.37957/2008 8 limited purpose of deciding the question of jurisdiction and untrammelled by the observation contained therein, the court below shall decide, on the basis of the evidence adduced by the parties, as to who is entitled to the custody of the minor child, having due regard to the welfare of the minor. While deciding the issue relating to child custody and visitorial rights welfare of the child is the paramount consideration and not the right of the parents under a statute for the time being in force or what the parties say. The court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, moral and ethical values have also to be noted. They are equal if not more important than the others. Mature thinking is indeed necessary in such a situation. Human angles are also relevant in deciding the issue. See Gaurav Nagpal v. Sumedha Nagpal (2009) 1 S.C.C. 42. The above principle will guide the court in deciding the issue on merits. (P.R. RAMAN) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ Mat. Appeal No.137/2008 & W.P.(C)No.37957/2008 9 C.R. P.R. RAMAN & C.T. RAVIKUMAR, JJ. MAT.APPEALNO.137/2008 & W.P.(C) NO.37957/2008 JUDGMENT 13th January, 2009 Mat. Appeal No.137/2008 & W.P.(C)No.37957/2008 10