IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 Mat.Appeal.No. 152 of 2010() ---------------------------- AGAINST THE ORDER DATED 11/02/2010 IN IA.2893/2009 IN OP(G&W).496/2009 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): --------------- BINDU PHILIPS,AGED 39 YEARS,NO.11, BRIARDALE COURT,PLAINSBORO,NEW JERSEY 08536,USA REP.BY P/A HOLDER P.T.PHILIPOSE,AGED 72,S/O.LATE P.O.THOMAS,NADUKKEPARAMBIL HOUSE,PAMPADY VILLAGE, KOTTAYAM DT.NOW R/A.HOUSE NO.15,LAKE VIEW DEFENCE COLONY,SHETTYHALLI,JALAHALLI WEST,BANGALORE. BY ADV. SRI.JAMES KURIAN SRI.SANTHOSH MODAYIL RESPONDENT(S): --------------- SUNIL JACOB, AGED 41 YEARS, S/O JACOB KURIAN, ELAVUMKAL HOUSE, VADAVATHOOR, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK. ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON 07/09/2011 PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- Mat.Appeal No.152 of 2010 ----------------------------------------------- Dated 7th September, 2011. J U D G M E N T Joseph Francis, J. This appeal is filed by the petitioner/respondent/wife in I.A.2893/09 in O.P.(G&W) 496/09 on the file of Family Court, Kottayam at Ettumanoor. The respondent herein is the respondent/husband in that I.A., which was filed by the wife to decide the question of jurisdiction of that court to entertain O.P. (G&W) 496/09. 2. The facts of the case as mentioned in the appeal memorandum is briefly as follows : The appellant is the wife of the respondent. The marriage between the appellant and respondent was solemnized on 15.4.1996 at Holy Trinity CSI Cathedral Church, Kottayam in accordance with the rites and ceremonies of Christian communities. The appellant and the respondent husband were domiciled in USA from 1996 onwards. Out of the wed lock twin children, namely Alfred William Jacob and Albert Philip Jacob were born on 6.12.2000. While they were studying in Standard IV in USA, all of them came to India in December 2008 for a vacation. Return tickets were arranged Mat.Appeal No.152/2010 2 for 12.1.2009. In the meanwhile a skirmish was developed between the appellant and the respondent. Respondent decided not to return and to reside here. He filed O.P.(G&W) No.496/2009 before the Family Court, Kottayam at Ettumanoor to declare the petitioner, respondent herein as the guardian and custodian of the minor children and for other reliefs. This appellant filed objection contending that the respondent and the minor children are US citizens and all of them are ordinarily residing in United States and hence the court has no jurisdiction in the matter of appointing guardian to the minors. Moreover, it was pointed out that the matter for custody of minor children has been brought before the US court having the jurisdiction and the court has taken cognizance of the case. Respondent herein also appeared in that case and contended the jurisdictional issue there. But the US court denied that contention against which he filed appeal, which was also rejected. Since the matter is unnecessarily delayed and dragged before the Family Court, appellant filed I.A.No.2893/09 before the Family Court, Kottayam at Ettumanoor for Mat.Appeal No.152/2010 3 considering the preliminary issue immediately. Respondent herein filed objection. He contended that the respondent and the children are ordinarily residing at Kottayam for more than one year and hence the court has got jurisdiction to entertain the petition. 3. In the Family Court, for the purpose of enquiry, Exts.A1 to A5 and Ext.B1 were marked. Learned Family Court, on considering the matter disposed of that petition, on finding that, that court has jurisdiction to entertain O.P.(G&W) 496/09. Against that order, the petitioner/respondent in that I.A. filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the respondent. At the time of hearing, learned counsel for the appellant raised the following contentions : The Court below misunderstood the contention of residence put up by the respondent. It was brought to the notice of the Court below that the petitioner/ respondent and minor children are citizens of United States and they are Mat.Appeal No.152/2010 4 domiciled in New Jersey. Based on that reality the petition for custody of minor children filed by the appellant before the New Jersey Court was entertained there against the contention of jurisdictional issue raised by the respondent herein. His petition before the appellate court in USA also was rejected. The Court which is having jurisdiction of its minor citizens has taken cognizance of the petition regarding the guardianship of the minor children and passed orders. Being a citizen of USA and party to that proceedings the respondent cannot agitate that issue in another country in which any one of them are not citizens and not ordinarily residing. The court below failed to consider the fact that the personal matter of the foreign citizen such as custody, guardianship, welfare etc. of minor children shall be adjudicated in the courts having jurisdiction in that country. The court below turned a nelsons eye towards the fact that the issue of the custody of the minor children are already in the consideration of the superior court of New Jersy, Chancerry Division - Family Part, Middlesex, which is having jurisdiction. Appellant, respondent and minor children are Mat.Appeal No.152/2010 5 citizens of United States and not having domiciled in India but in USA only. The court below erred in appreciating the contentions raised by the appellant regarding to the Citizenship Act of India. Alien citizens who require visa to reach India cannot be equated to an ordinary citizen of India. Even though such persons are permitted to stay here for a short while, they cannot be considered as ordinary residents of India. The minor children are staying here on the strength of the American Passport and the Indian Visa. All these aspects have been bye- passed by the trial court on a point that they have overseas citizenship status here. The minors' American passport period expired on 29.6.2011. 5. Learned counsel for the respondent supported the order of the court below. Section 9 of the Guardian and Wards Act makes it clear that an application in respect of guardianship of the person of a minor requires to be filed where the minor ordinarily resides. The term 'ordinarily resides' is not defined in that Act. 6. In the decision reported in CHANDY v. MARY Mat.Appeal No.152/2010 6 BANEENA 1988(1) KLT 611, it was held 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 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 Mat.Appeal No.152/2010 7 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.” 7. In the decision reported in Vasu v. Muralidharan (2009(1) KLT 480), it was held : “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. The expression “where the minor Mat.Appeal No.152/2010 8 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. (para. 5)” 8. In the decision reported in Shilpa Aggarwal (Ms) v. Aviral Mittal and another (2010) 1 SCC 591), it was held: “Surinder Kaur Sandhu case has duly considered the principle that the interest of the minor is paramount in any decision relating to custody. It is but natural that in a matrimonial tussle both the parents would want custody of the minor child. In this tussle, the court is to decide who would be more suited to have custody of the child. Although, on first impression, it would appear that interest of the minor child would be Mat.Appeal No.152/2010 9 best served if she is allowed to remain with the appellant, yet the Supreme Court cannot lose sight of the order dated 26.11.2008 passed by High Court of Justice, Family Division, UK, that the minor child would remain a ward of the court and that the appellant mother would return the child to the jurisdiction of courts in England and Wales. The English court except for insisting that the minor be returned to its jurisdiction, did not intend to separate the child from the appellant mother until final decision was taken with regard to the child's custody. The ultimate decision in that regard has to be left to the English courts having regard to nationality of the child and the fact that both the parents had worked for gain in the UK and had also acquired permanent resident status in the UK. The Delhi High Court while passing the impugned order took into consideration both the questions relating to comity of courts as well as interest of the minor child which is of paramount consideration. It is the English court which had the most intimate contact with the issue in question Mat.Appeal No.152/2010 10 to decide the same. The fact that the minor child has been declared a ward of the English court till she attained majority, is also a matter of considerable importance. The Delhi High Court did not commit any error in relying on the doctrine of comity of courts since the question of what is in the interest of the minor still has to be considered by the UK court.” 9. In the decision reported in V.Ravi Chandran (Dr)(2) v. Union of India and others (2010) 1 SCC 174) it was held: “The court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of Mat.Appeal No.152/2010 11 welfare of the child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.” 10. In paragraph 22 of the decision reported in Ruchi Majoo v. Sanjeev Majoo (2011 (2) KLT 788 (SC), it was held : “22. In Dhanwanti Joshi v. Madhav Unde ((1998) 1 SCC 112), one of the questions that fell for consideration was whether the bringing away of a child to India by his mother contrary to an order of US Court would have any bearing on the decision of the Courts in India while deciding about the custody and the welfare of the child. Relying upon McKee v. KcKee (1951 AC 352: 1951(1) All ER 942) and J v. C (1970 AC 668: 1969(1) All ER 788), this Court held that it was the duty of the Courts in the country to which a child is removed to consider the question of custody, having regard to the welfare of the child. In doing so, the order passed by the foreign court would yield to the welfare of the child and that Comity of Courts simply demanded consideration of any such order issued by foreign courts and not necessarily their Mat.Appeal No.152/2010 12 enforcement. This court further held that the conduct of a summary or elaborate inquiry on the question of custody by the Court in the country to which the child has been removed will depend upon the facts and circumstance of each case. For instance summary jurisdiction is exercised only if the court to which the child had been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded to hold that it would be better for the child that the merits of the case are investigated in a court in his native country, on the expectation that an early decision in the native country would be in the interests of the child before the child could develop roots in the country to which he had been removed. So also the conduct of an elaborate inquiry may depend upon the time that had elapsed between the removal of the child and the institution of the proceedings for custody. This would mean that longer the time gap, the lesser the inclination of the Court to go for a summary inquiry. The court rejected the prayer for returning the child to the country from where he had been removed and observed: “31. The facts of the case are that when the respondent moved the courts in India and in the proceedings of 1986 for habeas corpus and under Guardians and Wards Act, the courts in India thought it best in the interests of the child Mat.Appeal No.152/2010 13 to allow it to continue with the mother in India, and those orders have also become final. The Indian courts in 1993 or 1997, when the child had lived with his mother for nearly 12 years, or more, would not exercise a summary jurisdiction to return the child to USA on the ground that its removal from USA in 1984 was contrary to orders of US courts.” In paragraph 27 of the above decision, it was further held : “27. In cases arising out of proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There is thus a significant difference between the jurisdictional facts relevant to the exercise of powers by a writ court on the one hand and a court under the Guardians and Wards Act on the other. Having said that we must make it clear that no matter a Court is exercising powers under the Guardians and Wards Act it can choose to hold a summary enquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under S.9(1) of the Act. This is clear from the decision of this Court in Dhanwanti Joshi v. Madhav Unde ((1998) 1 SCC 112), Mat.Appeal No.152/2010 14 which arose out of proceedings under the Guardians and Wards Act. The following passage is in this regard apposite: “We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw ((1987) 1 SCC 42) while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, - which were independently considered - it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother's application in India were within six months. In that context, this Court referred to H. (infants), Re ((1966) 1 ALL ER 886) which case, as pointed out by us above has been explained in L. Re ((1974) 1 All ER 913), CA as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee ((1951) 1 All ER 942) and J v. C ((1969) 1 All ER 788) and the distinction between summary and elaborate inquiries as stated in L. (infants), Re ((1974) 1 All ER 913), CA are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 Mat.Appeal No.152/2010 15 - even assuming that the earlier orders passed in India do not operate as constructive res judicata.” 11. Learned counsel for the respondent/husband submitted that the respondent/husband was working in USA in City Group and he lost his employment during November, 2008 and that the appellant/wife was not working at all in USA since March, 2002 and in the above circumstances, the appellant and the respondent decided to come to India and stay in India for some time and they were not contemplating to go back to USA immediately and they have decided to sell their residential building at New Jersey and for that purpose, two separate power of attorney were executed in favour of one Thomas Kuriakose, and the appellant/wife revoked the power of attorney executed by her while she was residing with her parents at Bangalore. Learned counsel for the respondent/husband submitted that the appellant had preferred a complaint for divorce from the respondent/husband before the superior court of New Jersey and she obtained an ex-parte order for maintenance to sell the residential house of the Mat.Appeal No.152/2010 16 respondent and the appellant sold the house of the respondent. 12. Learned counsel for the respondent submitted that respondent and minor children are Indian citizens as well as their parents were Indian citizens at the time of their birth and the respondent and minor children are registered overseas citizens of India. 13. There is no dispute that the minor children are residing along with the respondent in Kottayam from December, 2008 onwards and the children are studying at Kottayam. As observed by the Family Court, the question whether the husband has taken the children by force to India is a matter to be decided after taking evidence. It was also observed by the Family Court that the American court has passed an order on 18.12.2009 allowing the wife to bring back the children on her expenses to America and that the wife filed that petition before that court only on 25.9.2009. But, the children were residing in India at Kottayam from 24.12.2008 onwards. In the order under challenge, it is stated by the Family Court that it had occasion to interview the children and Mat.Appeal No.152/2010 17 both of them stated that they are happy to reside in India and they are continuing their education at Kottayam under the care and protection of the father and on considering the welfare of the children, that court also has jurisdiction to entertain the petition. Since the children are residing at Kottayam along with the father from December, 2008 onwards we are of the view that the Family Court is fully justified in finding that that court also had jurisdiction to entertain the petition. However, we make it clear that it will be open to the appellant to contend before the court below that having regard to the orders passed by the courts in America, the Family Court should decline relief to the respondent. Accordingly, this appeal is dismissed as it is without any merits. There is no order as to costs. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.