PRAMOD VIDYANDHAR PANICKER v. BINDU PRAMOD PANICKER

CRPIUS C.KURIAKOSE & BABU MATHEW P.JOSEPH JJ.------------------------ O.P.(F.C) . NO. 3058 OF 2012------------------------Dated this the 14th day of November, 2012JUDGMENTPius C.Kuriakose,JThis original petition under Article 227 is directed againstExt.P5 order passed by the Family Court, Ernakulam holding thatExt.P1 Original Petition (O.P.No.1254/2012) on the files of thatcourt filed by respondents 1 and 2 is maintainable in law beforethat court. Ext.P1 original petition was filed under Section 7 ofthe Guardian & Wards Act of 1890 read with Section 7 of theFamily Courts Act 1984 for a declaration that the 2nd respondent-grand mother of a minor child Jhanvi Pramod Panikkar, thedaughter of the petitioner and the first respondent, is theGuardian of the person of the above said minor. According toExt.P1, the first respondent, the mother of the child, is presentlyunder treatment at Life Care Clinic at Palarivattom within theterritorial limits of the Family Court, Ernakulam. She is being O.P.(FC) No. 3058 /20122treated for Hypoxic ischemic brain injury sustained as a result ofnear hanging. As the first respondent is immobilised, bed riddenand not in a position to sign or verify the petition, she isrepresented by the 2nd respondent,her mother as next friend. Itis alleged that the present state of the first respondent is theresult of the attempt made by the petitioner and his parents tomurder the first respondent. It is also alleged that the petitionerfailed to give proper care and treatment to the first respondentand hence the first respondent was brought from Nasik andadmitted at Brain and Spine Hospital at Vaikkom. From thereshe was discharged and shifted to Life Care Clinic atPalarivattom. The Doctor who treated the first respondent atVaikkom is visiting the Palarivattom clinic as a consultantpsychiatrist. The 2nd respondent is always by the side of thefirst respondent giving her constant care and treatment. She isassisted by her parents in the matter. The first respondent isslowly gaining recovery and there is good response totreatment. The Doctor advised that the patient requiresmaximum sensory and emotional stimulation to her brain for herfast recovery for which presence of her own child will be very O.P.(FC) No. 3058 /20123useful. It is then alleged that the child is presently under thecare of one Bindu at Mumbai who is a distant relative of thepetitioner herein. The parents of the petitioner herein areallegedly a aged and totally incapable of looking after the child.They are not interested in looking after the child at all. Thepetitioner has no time to take care of her child. The presentresidence of the child in such an atmosphere will hamper thegrowth of the child and will retard her personality. Variousrequests by the first respondent for getting the custody of theminor child were not heeded to by the petitioner and henceExt.P1 is filed. 2. The petitioner entered appearance and filed preliminaryobjections. A separate application seeking exemption fromproducing the child was also filed. The contention raised in thepreliminary objection is that the Family Court, Ernakulam lacksin jurisdiction to entertain Ext.P1 original petition as the childdoes not ordinarily reside within the limits of that court. Thechild has been residing ever since its birth at Mumbai. The childis under care and protection of the petitioner and his parents andone maid servant also has been employed to look after the child. O.P.(FC) No. 3058 /20124The allegation that custody of the child is entrusted to Bindu, adistant relative of the petitioner, herein is denied. Binduresides very close to the petitioner's house and on certainoccasions when the petitioner and his parents were in thehospital only, the custody of the child was entrusted to Bindu fora very short while. The child is healthy and happy under theprotection of the petitioner. The Family Court at Ernakulam hasno jurisdiction over Ext.P1 and in the preliminary objection theallegations regarding the harassment, cruelty, attempt tomurder etc. are stoutly denied, raising the preliminary issue asto whether the original petition is maintainable for want ofterritorial jurisdiction of the Family Court, Ernakulam. 3. By Ext.P5, it is held that the Family Court hasjurisdiction. To come to such a conclusion , the learned court hasplaced reliance on the decisions such as Ganrav Nagpal v.Sumidha Nagpal (2009 Kerala High Court 4035), Vasu v.Muraleedharan ( 2009 (1) KLT 480) . The learned court hasproceeded to distinguish the judgment in Chandy v. MaryBaneena ( 1988 (1) KLT 611) and Himanshu Mahajan v. Rashu Mahjan and others ( AIR 2008 Himachal Pradesh O.P.(FC) No. 3058 /2012538) which were relied on by the petitioner herein.4. Ext.P5 is challenged on various grounds and we haveheard the submissions of Sri.Martin G.Thottan learned counselfor the petitioner and those of Sri.K.Shaj learned counsel for therespondents. Upon the conclusion of the arguments, as we feltthat it is necessary to have an idea as to the present physicaland mental condition of the first respondent, we deputedAdvocate Latheesh Sebastian as commissioner to visit her andto file a report. The report submitted by the commissioner isvery short. The essentials of the report submitted by thecommissioner is as follows;“The present physical and mentalcondition of Mrs.Bindu Panicker. At the time of my visit Mrs. BinduPanicker was laying in the hospital bed. Sheis fully bed ridden, unable to make a move ofher own. Her mouth and eyes were open.She is able to move iris on both directions.Mrs. Bindu can move her head on bothdirections. From the appearance it is foundthat she is not responding to the sound orsensing the movements in the room and is notidentifying/recognizing visitors. But she isresponding by expressing shocks in the face, ifone touches on the nails of both the legs andthe feet foot. Mrs. Bindu did not make anysound/noice at the time of my visit and is notin a position to answer any questions, though O.P.(FC) No. 3058 /20126I asked some questions. Mother and doctor, who are attendingMrs.Bindu Panicker expressed that there isimprovements in the physical condition of Mrs.Bindu Panicker and she is taking food orally, iffed through spoon. But I have not seen thesame . Since Mrs.Bindu Panicker is notresponding to any of the questions, I am notin a position to report about the mentalcondition of Mrs.Bindu Panicker. “5. Relying on the judgment of the supreme Court inJeewanti. v.Kishan Chandra ( AIR 1982 Supreme Court 3 ), itwas argued by Sri.Martin G.Thottan that residence should meanactual place of residence and not legal or constructiveresidence. The judgment of the Hon'ble Mr. Justice Thomas as aJudge of this court in Chandy v. Mary Baneena (Cited supra)was also relied on by the learned counsel. 6. Relying on the decision reported in Poonen v. RathiVarghese ( 1966 KLT 454 (FB) Advocate Sri.Martin G. Thottanargued that place of residence does not mean places of casualresidence and transitory residence. The residence of the firstrespondent at Life Care Clinic at Palarivattom is only a transitoryresidence, so submitted Mr.Martin G. Thottan. Relying on anearly judgment of this Court reported in Sarada Nayar v. O.P.(FC) No. 3058 /20127Vayankara Amma (1957 KLT 466) Mr.Martin argued that theexpression “where the minor ordinarily resides” has beenintentionally used in the statute for excluding places to which theminor may be removed at or about the time of filing of theapplication for the enforcement of the guardianship and custodyof the minor. The legislature intended to avoid inconveniences tothe minor. The interest of the minor has been uppermost in themind of the legislature while using the above expression and thelegislature has conferred jurisdiction only upon the Court wherethe minor has been residing for a reasonably long period . Theminor in this case, it was pointed out, has never seen the soil ofKerala. Referring to the judgment of the Division Bench of thisCourt reported in Vasu v. Muralidharan (cited supra) wherethe Court took the view that when the spouses are livingseparately the places of residence of the minor children will bethe place of residence of either of the spouses, counsel submittedthat the above judgment strikes a different note and hencerequires to be considered. According to the learned counsel evenif it is assumed that the said decision lays down the lawcorrectly, the Family Court, Ernakulam cannot have jurisdiction in O.P.(FC) No. 3058 /20128this case as the first respondent cannot be said to be ordinarilyresiding at Palarivattom which is only a place of transitoryresidence for her. Ordinary and permanent residence of the firstrespondent is at Mumbay. 7. Meeting the arguments of Mr. Martin G. Thottan,Sri.Shaj, learned counsel for the respondent supported theimpugned judgment of the Family Court. He would place strongreliance on the judgment in Vasu v. Muralidharan and submitthat the first respondent/mother of the child has been residingat Palarivattom for a long period and now considering herpresent health condition she will have to remain hospitalized forstill longer periods. Reliance was placed by Sri.Shaj on thejudgment of the Hon'ble Supreme Court reported in Nil RatanKundu v. Abhijit Kundu (2008) 9 S.C.C. 413) to argue thepreposition that in parens patriae jurisdiction the paramountconsideration which governs custody of a minor child is thewelfare of the child and not the rights of the parents. TheHon'ble Supreme Court in unmistakable terms laid down thatwhat is required in such matters is a human touch. Referring tothe judgment of the Full Bench of this Court in Poonen v. Rathi O.P.(FC) No. 3058 /20129Varghese (1996 KLT 454), the learned counsel submitted thatto constitute 'residence', it is not necessary that the party orparties must have his or their own house and the stay need notbe permanent. It can also be temporary, so long as there isanimus manendi or an intention to stay for an indefinite period.In view of the present condition of the first respondent it isobvious that first and 2nd respondent will have to remain atPalarivattom for an indefinite period. Learned counsel woulddraw our attention to the certificate issued on 19.6.2002 byDr.Biju Ravindran, Consultant Physiatrist visiting Life Care Clinicregularly in which it is stated that the first respondent needsmaximum sensory and emotional stimulation to the brain forher fast recovery and that presence of the child is absolutelynecessary for the fast recovery of the first respondent.8. We have given our anxious consideration into the rivalsubmissions addressed at the Bar. Section 9 of the Guardiansand Wards Act confers jurisdiction to deal with matters pertainingto guardianship and custody of the children only on that courtwithin whose territorial limits the child ordinarily resides. TheHon'ble Supreme Court in Jeewanti v.Kishan Chandra (cited O.P.(FC) No. 3058 /201210supra) dealing with the concept of 'residence' within the meaningof Section 19 clause (ii) of the Hindu Marriage Act, held that inorder to give jurisdiction on the ground of 'residence' somethingmore than a temporary stay is required. It must be more or lessof a permanent character, and of such a nature that the court inwhich the respondent is sued, is his natural forum. Stating thatthe word 'reside' is by no means free from all ambiguity and iscapable of a variety of meanings according to the circumstancesto which it is made applicable and the context in which it isfound, their Lordships go on to say that in the ordinary sense'residence' is more or less of a permanent character. Theexpression 'resides' means to make an abode for a considerabletime: to dwell permanently or for a length of time: to have asettled abode for a time. Justice K.T.Thomas as a Judge ofthis court in Chandy v. Mary Neena (cited supra) relied on theabove decision of the Supreme Court and in the context ofSection 9 of the Guardians and Wards Act held that theexpression “ordinarily resides” connotes a regularly settled homeand not a place of study where the children are obliged to dwellby force of circumstances or compulsion of parents employment. O.P.(FC) No. 3058 /201211A Division Bench of this court in Sarada Nayar v. VayankaraAmma & others (cited supra) held that the expression inSection 9 of the Guardians & Wards Act ”where the minorordinarily resides” appears to have been deliberately used toexclude places to which the minor may be removed, at or aboutthe time of the filing of the application for the enforcement of theguardianship and custody of the minor. It is laid down that thephrase”ordinarily resides” indicates ordinary residence even atthe time of the presentation of presentation of the application.It is pointed out that emphasis is undoubtedly on the minor'sordinary place of residence. 9. The judgment of the Supreme Court in Nil Ratan KunduAnd Another v. Abhijit Kundu (cited supra) does not expresslydeal with the concept of 'ordinary residence” under Section 9 ofthe Guardians and Wards Act . It has only reiterated the wellknown proposition that in parens patriae jurisdiction the issuehas to be resolved with a human touch and that due weightagemust be given to the child's ordinary comfort, contentment,health, education, intellectual development and favourablesurroundings as well as physical comfort and moral values. It is O.P.(FC) No. 3058 /201212also laid down that the court should ascertain the child'spreference. The Full Bench of this court in Poonen v.RathiVarghese (cited supra) dealing with Section (3) clause (3) of theDivorce Act 1869, explained 'Reside or last resided together'and held inter alia that the main factors to be considered indeciding the question where the parties last resided together are(1) to constitute 'residence', it is not necessary that the party orparties must have his or their own house:(2) to constitute'residence' the stay need not be permanent it can also betemporary, so long as there is animus manendi or an intention tostay for an indefinite period; (3)”residence” will not take in acasual stay in, or a flying visit to a particular place; a merecasual residence in a place for a temporary purpose, with noindention or remaining, is not covered by the word 'reside'; (4)“residence” connotes, something more than stay: it implies someintention to remain at a place, and not merely to pay it a casualvisit: (5) by staying in a particular place, in order to constitute“residence” the intention must be to make it his or their abode orresidence, either permanent or temporary (6) the expression“last resided” also means the place where the person had his last O.P.(FC) No. 3058 /201213abode or residence, permanent or temporary; (7) where therehas been residence together of a more permanent character, anda casual or brief residence together it is only the former that canbe considered as “residence together” for determining thejurisdiction” (8) the question as to whether a particular personhas chosen to make a particular place His abode, is to begathered from the particular circumstances of each case. Strongreliance was placed by the learned counsel for the respondent ina Division Bench of this court in Vasu v.Muralidharan (citedsupra) which takes the view that ordinary residence of child canbe the ordinary residence of either of the parents where both theparents are living apart- if one of the spouse is not living,necessarily the only other place having jurisdiction is the placewhere the spouse living resides. It will be seen on a reading ofthis judgment that their Lordships were following an earlierjudgment of this court in Prabhu v. Rajani (2007 (2) KLT SN38). 10. We have gone through the full text of the judgment inPrabhu's case. The observation made by the Bench in thebeginning of paragraph 5 of the judgment that “the ordinary O.P.(FC) No. 3058 /201214residence of the child can be the ordinary residence of either ofthe parents as well in a situation where both parents are livingapart” is made by the Bench as a general observation withoutreferring to any precedent. Interestingly in that case the Benchdid not accept the case of the mother that as she and the childare residing at Tripunithura and as the child is admitted to aschool in Tripunithura, the Ernakulam court has jurisdiction. ThisCourt remitted the matter back to the Family Court to decide thequestion whether the mother who came to reside in Tripunithurarecently can be said to be ordinarily residing at Tripunithura. Thefacts in Vasu v.Muralidharan (cited supra) will now have to benoticed. That was a case where the dispute was between thematernal grand parents of the child with whom the child wasresiding at the time of presentation of the application and fatherof the child whose ordinary place of residence was at Palakkad.The respondent in that case, the mother of the child hadcommitted suicide and the police had in fact charge sheeted thefather of the child for dowry death. Nevertheless the trial courtfound that place of ordinary residence of the child is not the placewhere the child was residing at the time of presentation of the O.P.(FC) No. 3058 /201215application - place of residence of its maternal grant parents, butthe same is Plakkad, the residence of the father of the child.The Division Bench referred to Prabhu v. Rajani (cited supra)and held that that the principles laid down in Prabu v. Rajani'scase will apply also to cases where both the parents are livingand living apart. In that view of the matter, the DivisionBench held that it is the court at Palakkad, the place of residenceof the father, which is having jurisdiction under Section 9 of theGuardians and Wards Act. The Division Bench however,elsewhere in the judgment has stated that the question as tothe ordinary residence of a minor is always a question to bedecided on the facts and particulars of each case. According tous, the judgment in Vasu v. Maralidharan can apply only to thecases where the fact situation is identical to that case. 11. Coming to the present case, the child in question wasborn in the State of Maharastra. It is being brought up atMumbai and it is given pre primary education at Mumbai Thechild is not old enough to form an intelligent preference. It wasnever seen the soil of Kerala, the home state of its parents. Thematerials available will show that the child is staying with his O.P.(FC) No. 3058 /201216father and paternal grand parents. The allegation that thecustody of the child is given to a distant relative is emphaticallydenied. Materials available show that since it's birth the childhas been residing at Mumbai only. The respondents do not havea case that the child has ever resided at Palarivattom, the placewithin the jurisdiction of the Ernakulam Family Court or for thatmatter anywhere else in Kerala. The court below was relied onthe Judgment in Vasu v. Muralidharan(cited supra) to take theview that as the mother of the child, who is living separatelyfrom her husband, is ordinarily residing at Palarivattom, theFamily Court at Ernakulam has the jurisdiction. 12. It is very difficult to accept the contention of therespondents that the first respondent herein, the mother of thechild, is ordinarily residing at Palarivattom, the place where thehospital in which she is now admitted is situated. The firstrespondent's family house is at Kollam and her ordinaryresidence, assuming that she has no other place of residence inMaharastra, is Kollam. But, we find that the first respondent'sparents including the 2nd respondent her mother and power ofattorney holder were also having ordinarily stay at Raigar in O.P.(FC) No. 3058 /201217Maharastra.13. When the concept of ordinary residence is analysed inthe context of the various decisions referred to herein beforeespecially the judgment of the Supreme Court in Jeewanti v.Kishan Chandra (cited supra), Sarada Nayar v. Vayankara Amma& others (cited supra) and also the judgment of the Full BenchPoonen v. Rathi Varghese (cited supra) it will be seen that thefirst respondent, mother, is not ordinarily residing at Palarivattomwithin the limits of the Ernakulam Family Court. On the contrary,it can be very easily found that the child is ordinarily residing atMumbai along with its father. There is yet another aspect whichcannot go unnoticed. The principle that a minor child can beconsidered to be ordinarily residing at the place of ordinaryresidence of either of its parents is based on the theory that theparents will always provide shelter to the child. In this particularcase, where the first respondent mother is lying in a semi comacondition in the hospital at Palarivattom, the above principlecannot have any application.14. The result is that the original petition stands allowed.The impugned order is set aside. It is held that Ext.P1, original O.P.(FC) No. 3058 /201218petition is not maintainable before the Family Court, Ernakulamfor want of territorial jurisdiction. The Family Court is directed toreturn Ext.P1 to the respondents so as to enabling them topresent the same before appropriate Court. We record the assurance given to us on behalf of thepetitioner by his counsel Sri.Martin G. Thottan that the petitionerwill bring the child Jhanvi Pramod Panickar over to the Life CareClinic, Palarivattom, where the first respondent is being treated,so that the respondents can see the child and be with the childfor reasonable periods of time during school vacation/longholidays. Sd/-PIUS C.KURIAKOSE, Judge.Sd/-BABU MATHEW P.JOSEPH, Judge.dpk/ul/kns. O.P.(FC) No. 3058 /201219