MS.LAKSHMI SANKAR v. SURESH K.SURENDRANATHAN

P.R.Raman &T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - -W.P.(C) No.31927 of 2007-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of October, 2008.JUDGMENTRamachandran Nair, J.This writ petition is one challenging the preliminary judgment passedby the Family Court, Alappuzha in O.P.No.1341/2005 to the effect that ithas got territorial jurisdiction to entertain the petition filed by the husbandseeking custody of the child.2. The basic facts leading to the dispute are the following: Theparties married on 20.8.1999 at Trivandrum. After the marriage, thehusband who is a B. Tech. Degree holder, proceeded to California,U.S.A. to avail a job there. The wife accompanied him subsequently, inDecember 1999. She is a post-graduate in M.A. Journalism and MassCommunications. The minor son was born in the wedlock on 15.4.2003 atU.S.A. The parties continued their residence along with the child in U.S.A.Pursuant to the disputes with the wife, the husband came back to India andlater filed Ext.P2 original petition in October 2005 seeking for a decree forallowing him to keep the custody of the child, invoking Sections 12 and 25of the Guardian and Wards Act, read with Section 7 of the Family Courts WPC 31927/2007-2-Act. The address of the wife shown in the petition is “33 Gallop Lane,Somersat New Jersey, U.S.A. Her parents are there in New Jersey, U.S.,from the year 2000. Initially the wife filed objections, Ext.P3, to the mainpetition. Thereafter, by way of an amendment she sought to challenge theterritorial jurisdiction of the Family Court and the amendment was allowedon payment of cost Rs.1,000/- which was paid. Ext.P5 is the saidamendment petition. Thereafter, the question of jurisdiction was heard as apreliminary issue. Ultimately, Ext.P8 order has been passed by the FamilyCourt overruling the objections filed by the wife challenging themaintainability of the petition before the Family Court at Alappuzha.3. One more thing which is to be mentioned is that the wife hadobtained Ext.P1, an order passed by the Superior Court of New Jersey bywhich the custody of the minor child was ordered in her favour. 4. In Ext.P8 order, the Family Court found in favour of the husbandregarding the maintainability of the petition, mainly for the reason that“ordinarily the permanent residence of a Hindu minor is the residence of hisfather, i.e. the father's fixed abode or house. Though the child was born in2003 at U.S.A., since his parents were residing there at that time, thepermanent residence or ordinary residence of the child cannot be taken asCalifornia in U.S.A., where the parents were residing along with the child or WPC 31927/2007-3-New Jersey, where the children is now residing along with her mother, therespondent and herself resides along with her parents as the child has tomove along with his parents till his attaining majority.” Ultimately, theconclusion reached is that for considering a petition for guardianship, thepermanent residence of the father has to be taken as the ordinary residenceof the minor which is within the jurisdiction of the Family Court, Alappuzhaand hence, that court has territorial jurisdiction to entertain the petition. Theabove finding is under challenge in this writ petition.5. We have heard Smt. K.V. Bhadra Kumari, learned counsel for thepetitioner, Shri S. Anil Kumar and Shri.T.R.Mohanakumar, learned counselfor the respondent and Shri V. Philip Mathews, learned counsel for theimpleading petitioner.6.Learned counsel for the petitioner contended that the wife andthe child are residing in New Jersey in U.S.A. They are therefore not settledin India. Even going by the averments in para 27 of Ext.P2 filed by thehusband, in August 2004 both the husband and wife got the green cardapproved. The child was born in U.S.A. and is a citizen of that country.The husband alone came back to India and has filed the petition seekingguardianship of the minor. Even before the said petition was filed, the wifemoved the Superior Court of New Jersey which has passed Ext.P1 order WPC 31927/2007-4-granting custody of the child to the mother. That order is still in force.Apart from that, the welfare of the child has to be considered. For thepurpose of considering the jurisdiction of the Family Court, what is requiredunder Section 9 of the Guardian and Wards Act, 1890 is to find out theplace where the child ordinarily resides. Herein, the child never residedwithin the jurisdiction of the Alappuzha Court and even now the child isnot “ordinarily residing within the jurisdiction of that court.” It is alsopointed out that even in Ext.P2 petition filed by the father, no properaverments have been made as to how the court at Alappuzha will getjurisdiction and the averments contained in para 50 are not sufficient tohold that the Family Court, Alappuzha will have jurisdiction to decide thematter. Learned counsel for the petitioner relied upon the principles statedby the Apex Court in Smt. Surinder Kaur Sandhu v. Harbax SinghSandhu and another {(1984) 3 SCC 698}.7. Learned counsel appearing for the husband/first respondent mainlycontended that the child being a minor and the father being the naturalguardian, the child will have to follow the residence of the said naturalguardian and that alone is the true test to decide the jurisdiction of the court.The respondent is a native of Mannar, within Alappuzha District. His WPC 31927/2007-5-permanent address is that of the family house in that village. It is alsocontended that the child was removed by the mother from their house atCalifornia and such acts of the mother cannot be considered for the purposeof considering the jurisdiction of the Family Court at Alappuzha. It issubmitted that the finding rendered by the Family Court that the permanentresidence of the father has to be taken as ordinary residence of the minor, isperfectly justified. Reliance is also placed on the decisions of this court inChandy v. Mary Baneena (1988 (1) KLT 611) and Hareendran Pillai v.Pushpalatha (2007 (1) KLT 842) and that of the Delhi High Court inRamjilal Yadav v. Dalip K. Yadav (1999 (1) HLR 237). 8. The petition filed by the father as per Ext.P2 is under the Guardianand Wards Act. Section 9(1) of the said Act provides that “if theapplication is with respect to the guardianship of the person of the minor, itshall be made to the District Court having jurisdiction in the place where theminor ordinarily resides.” As far as the Family Courts Act is concerned,Section 7 of Chapter III concerns with jurisdiction of the court. The otherprovision that is relevant is Section 6 of the Hindu Minority andGuardianship Act, 1956. The said provision along with the proviso, isextracted below: WPC 31927/2007-6-“6. Natural guardians of a Hindu minor.- The natural guardian ofa Hindu minor, in respect of the minor's person as well as in respectof the minor's property (excluding his or her undivided interest injoint family property) are.-(a) in the case of a boy or an unmarried girl – the father, andafter him the mother.Provided that the custody of a minor who has not completedthe age of five years shall ordinarily with the mother;9. The facts pleaded by the parties show that the marriage was held inTrivandrum on 20.8.1999. The husband proceeded to California to take upa new job after the marriage. The wife also accompanied him there. Thechild was born in the year 2003. Ext.P1 is the certificate issued by theSuperior Court of New Jersey wherein the sole legal and physical custody ofthe child was awarded to the petitioner/wife. This order is passed inOctober 2005. According to her, she received summons to appear beforethe Family Court, Alappuzha on 6.12.2005. Even in Ext.P2 petition filed bythe husband under Sections 12 and 25 of the Guardian and Wards Act, heraddress in U.S.A. alone is shown. In para 50 of Ext.P2 regarding the causeof action, what is stated is that “the cause of action of the OP arise in theabove mentioned circumstances and on 20.8.1999, the date of marriage, andon 1.10.2004, the date the counter petitioner deserted the petitioner WPC 31927/2007-7-continuously thereafter, at Mannar Village, which is within the jurisdictionof this Hon'ble Court.” If the case of the husband is accepted, desertion bythe wife happened in U.S.A. and not in this country. That happened inCalifornia. No cause of action arose within Mannar Village, as shown inpara 50 of Ext.P2. She continues her residence along with her child at NewJersey which fact is not disputed by the respondent. Her parents are residingthere. It is submitted that she is having a job there. Therefore, it can beconclusively held that at no point of time the child was 'ordinarily residing'within the jurisdiction of the Family Court, Alappuzha. 10. Then, the question is whether, for the purpose of deciding thejurisdiction what is relevant is only the permanent residence of the husbandin India, as contended by the learned counsel for him. It is further arguedthat the place of residence of the mother is by compulsion.11. Going by Section 9 of the Guardian and Wards Act, the place ofordinary residence of the child is the determinative factor. Herein the samehas to be found out from the facts shown above. It is true that the father isthe natural guardian, going by Section 6 of the Hindu Minority andGuardianship Act. But going by the proviso, in a case where the child isbelow the age of 5, the mother is the natural guardian. It is well settled thatwhile granting custody of the child, the paramount consideration is the WPC 31927/2007-8-welfare of the minor. The court will have to consider various aspects tofind out--after referring to the competing claims of the father and themother--as to who among them should be appointed as a guardian. 12. Bearing in mind this aspect let us analyse the principles stated inthe various decisions relied upon by either of the parties, rendered by thiscourt and the Apex Court. In Chandy's case (supra), the meaning of theword “resides” in Section 9 of the Guardian and Wards Act, 1890 came upfor consideration. It was held in para 5 as follows:“The word “reside” is by no means free from ambiguity as the wordis capable of a variety of meanings according to the circumstances towhich it is made applicable and the context in which it is found.“Residence” has connotation in law. It is not meant to take in placesof temporary stay, however long the stay may be. Though a casualresidence is also residence in a way, such transitory residence is notmeant to be included within the purview of residence in law, unless aparticular context justifies its inclusion. The residence must answera qualitative as well as quantitative test and the two elements offactum at animus must concur. Facts and circumstances of each casemust be looked into to ascertain whether a person can be said toordinarily reside at a given place. A permanent residence is the placewhere a person is expected to be ordinarily found. The place wheremere physical presence is found may not necessarily be the placewhere he ordinarily resides. The acceptable attributes of the WPC 31927/2007-9-expression “resides” in contexts like this are, to make an abode for aconsiderable time; to dwell permanently or for a length of time; or tohave a settled abode for a time etc. It is true that the place ofresidence at the time of filing of the application under the Act is notdecisive to ascertain the place of ordinary residence, as it would beeasy to move the minor children from one place to another and fromone jurisdiction to another. The expression “ordinarily resides”connote a regularly settled home and not a place of study where thechildren are obliged to dwell by force of circumstances orcompulsion of parents' employment.” Hence, the place of temporary stay has to be excluded, but the place wherea regularly settled home is there will satisfy the meaning of the expression“ordinarily resides”. The facts of the said case show that the parents were inDubai and the children were brought to Kerala by their mother andadmitted in a school in Ernakulam District. The husband filed a petitionunder the Guardian and Wards Act before the court at Ernakulam and themother contended that the ordinary residence of the children is in Dubai andhence the District Court, Ernakulam has no jurisdiction. In the light of theabove facts, it was held by this court that it is difficult to hold that theordinary residence of the minor children at the time of filing of the petitionwas at Dubai. In fact, when they were brought back to Kerala, they wereresiding with their maternal grandmother. It is in these circumstances, the WPC 31927/2007-10-above conclusion was arrived at by this court. The main questionconsidered by this court was whether a place of temporary stay, howeverlong the stay, can be considered for the purpose of considering the meaningof the term “residence”. The residence must answer a qualitative as well asquantitative test and the two elements of factum at animus must concur.Therefore, that test has to be applied to the facts of this case. InHareendran Pillai's case (supra) also, the same principle was reiterated.After referring to Section 6 of the Hindu Minority and Guardianship Actand the decisions of the Apex Court in Rosy Jacob v. JacobChakramakkal {(1973) 1 SCC 840} and Jajabhai v. Pathankhan {(1970)2 SCC 71) and the decision of this court in Chandy v. Mary Baneena(1988 (1) KLT 611), their Lordships examined the scope of Section 9 of theGuardian and Wards Act. The facts of the said case show that the marriageoccurred in Alappuzha District and they were also residing after themarriage along with the minor, within the jurisdiction of the Family Court,Alappuzha. The child was taken away from Alappuzha by the husband toBahrain. Therefore, mere residence of the child at Bahrain could not beconsidered as a factum which will deprive the Alappuzha court of itsjurisdiction. It is in the above factual situation the said case was decided to WPC 31927/2007-11-hold that the Family Court, Alappuzha has got jurisdiction. The facts of thepresent case show that they are totally different. Again, their Lordships inthe above said decision, stated that “though the father is the natural guardianof the minor above five years, on that ground alone he cannot have anypreferential claim since the paramount consideration is the welfare of theminor.” Therefore, the contention raised by the learned counsel for thehusband that for the purpose of considering the territorial jurisdiction, thechild should be considered as ordinary resident within the jurisdictionwhere the permanent residence of the father is situated, cannot be accepted.13. It may be mentioned herein that going by Ext.P1, the wife hassecured custody of her child from the Superior Court of New Jersey. Wewill now consider the principle stated by the Apex Court in SurinderKaur Sandhu's case (supra). The facts of the above case shows that theparents of the child who were Indian citizens, settled in England after themarriage and the child became a British citizen by birth. The child wasbrought to India by the father. Meanwhile, the mother obtained an orderfrom a court in England directing her husband to deliver custody of thechild to her. In the above factual situation, the relevant questions were WPC 31927/2007-12-examined. After analysing the detailed facts, it was held in para 10 asfollows: “The modern theory of Conflict of Laws recognises and, inany event, prefers the jurisdiction of the State which has the mostintimate contact with the issues arising in the case. Therefore, inmatters relating to matrimony and custody, the law of that placemust govern which has the closest concern with the well-being ofthe spouses and the welfare of the offsprings of marriage.Ordinarily, jurisdiction must follow upon functional lines and isnot attracted by the operation or creation of fortuitouscircumstances such as the circumstance as to where the child,whose custody is in issue, is brought or for the time being lodged.In the present case the facts that the child is a Britishcitizen and that the matrimonial home of the spouses was inEngland, establish sufficient contacts or ties with that State inorder to make it reasonable and just for the courts of that State toassume jurisdiction to enforce obligations which were incurredtherein by the spouses.”14. Therefore, the principle is well settled that in matters relating tomatrimony and custody, the law of that place must govern which has theclosest concern with the well-being of the spouses and the welfare of theoffsprings of marriage. Learned counsel for the respondent also relied uponthe observation in the above judgment that “ordinarily, jurisdiction must WPC 31927/2007-13-follow upon functional lines and is not attracted by the operation or creationof fortuitous circumstances,” and then contended that merely because thechild was residing along with the mother in U.S.A., the right of the father toinstitute a suit in India seeking custody, is not taken away, as the child ispresumed to be ordinarily residing with the father, he being the naturalguardian. We may point out herein that in the above judgment, the ApexCourt further laid down that Section 6 of the Hindu Minority andGuardianship Act cannot supersede the paramount consideration as to whatis conducive to the welfare of the minor. It has also been held that “it is theCourt's duty and function to protect the wife against the burden of litigatingin an inconvenient forum which she and her husband had left voluntarily.”Judged in the light of the above principles, we would like to point outherein that the spouses had set up their matrimonial home in U.S.A., the boyis a U.S. Citizen as he was born in that country and he holds a U.S.Passport, a copy of which has been produced herein as Ext.P4. By merelychoosing to come back to India after leaving the family at U.S., the fathercannot claim that the jurisdiction in regard to the dispute regarding custodycan only be before Indian courts and the U.S. Court has no jurisdiction.The following observation made in para 10 of the judgment in Surinder WPC 31927/2007-14-Kaur Sandhu's case (supra) that “the fact that the child is a British citizenand that the matrimonial home of the spouses was in England, establishsufficient contacts or ties with that State in order to make it reasonable andjust for the courts of that State to assume jurisdiction to enforce obligationswhich were incurred therein by the spouses”, is apposite to the facts of thiscase. This is not a case where the wife had taken the child out of thiscountry for a casual residence or by compulsion as contended by the learnedcounsel for the respondent and the impleading petitioner. Only on twooccasions she came back to India; first time in November 2003 and later inDecember 2004. Both were casual visits. Admittedly going by thepleadings of the parties, she went back thereafter. On his return to U.S., thehusband worked there for another 10 months before he came back to India,after their separation.15. Another argument raised by learned counsel for the respondentand the impleading petitioner is that the question of jurisdiction was notraised in the pleadings of the petitioner, viz. Ext.P3 and only at a later stageafter attending counselling alone, she raised this plea by way of anamendment and therefore since the said issue was not raised at the initialstage, the objection has to be rejected in toto. We are afraid, the saidargument cannot be accepted at this point of time, in view of the fact that WPC 31927/2007-15-the court below has, by the preliminary judgment, considered the objectionregarding jurisdiction after allowing her to amend the pleadings. It isreported that the amendment was allowed after hearing the objections of therespondent also on payment of cost Rs.3,000/- which was received by thehusband. The said order has become final. There was no change against theorder allowing amendment of the pleadings to incorporate the specificobjection regarding jurisdiction. Further, any question of jurisdiction goesto the root of the matter as it affects the very power and authority of thecourt to decide the dispute between the parties. Apart from that, such anobjection has not been seen raised before the trial court which has thereforegone into the dispute regarding jurisdiction in detail in the impugned order.16. It is pointed out by the learned counsel for the respondent that nosanctity can be attached to Ext.P1 order passed by the Superior Court ofNew Jersey, as his client was not heard before passing that order. He alsorelied upon the findings rendered by the Family Court in Ext.P8 order, tothe effect that the said order is not binding on the respondent. Ext.P8 ordershows that a copy of Ext.P1 order has been produced before the FamilyCourt. The Family Court was of the view that the order passed by theSuperior Court of New Jersey has nothing to do with the present case whileconsidering the question of territorial jurisdiction. The main reason for WPC 31927/2007-16-coming to the said conclusion is that no notice appears to have been servedon the husband prior to the passing of the order. We are afraid, the saidview of the Family Court cannot be said to be correct. Ext.P1 is a copy ofthe order passed by the Superior Court of New Jersey, and the validity ofthe said order cannot be decided by the Family Court at Alappuzha, as thesaid court is not sitting in appeal over it. It was upto the husband tochallenge it on various grounds available to him including the ground thathe was not heard. Therefore, the order cannot be ignored as such by theFamily Court at Alappuzha as is now done. We have referred to Ext.P1order of the Superior Court of New Jersey only to show that the wife hadapproached the forum available in U.S. to establish her custody of the child.17. It was vehemently contended by learned counsel for the husbandthat the only forum that can have jurisdiction is the court at Alappuzha,since the father has got permanent residence there. It is submitted that thefather being the natural guardian, the ordinary residence of the child canonly be presumed to be that of the father. Learned counsel for thepetitioner, in answer to the said contention, pointed out that the father isnow employed in Bangalore and is residing there and therefore, he will bepresumed to be an ordinary resident of Bangalore and not within thejurisdiction of the Alappuzha Court. Within Alappuzha district he may WPC 31927/2007-17-have permanent residence, but the question is whether the same will satisfythe ingredients of Section 9 of the Guardian and Wards Act. The Sectionexpressly provides that the court having jurisdiction is the court withinwhose jurisdiction the child ordinarily resides. We are of the view that theclaim of the father for permanent custody under Section 6 of the HinduMinority and Guardianship Act cannot be the true test at all. It is stipulatedunder the proviso to the said Section that the mother is having a legal rightof custody of a minor who is below the age of five years. The Apex Courtin Surinder Kaur Sandhu's case (supra), in para 9 held that Section 6 ofthe Hindu Minority and Guardianship Act, 1956 cannot supersede theparamount consideration as to what is conducive to the welfare of theminor. Therefore, the plea that father being the natural guardian, hisresidence permanently at one place is the criteria for deciding thejurisdiction, cannot be accepted. Herein, at the time of filing of Ext.P2 bythe father in 2005, the child was only 2 years and 6 months of age.Therefore, even going by the proviso to Section 6, the mother alone wasentitled to custody of a minor child below the age of five years. If that factis accepted, the mother who was residing in U.S. at that time along with thechild, is justified in claiming that the Family Court at Alappuzha has nojurisdiction to decide the dispute regarding custody raised by the petitioner. WPC 31927/2007-18-Further, no part of the cause of action arose within the jurisdiction ofFamily Court, Alappuzha.18. The reasoning adopted by the Family Court that the permanentresidence of the father has to be taken as the ordinary residence of the minorfor the purpose of deciding jurisdiction of the Family Court at Alappuzha,is therefore not correct. The said reasoning is not supported either by thestatutory provisions or by the principles stated by the Apex Court inSurinder Kaur Sandhu's case (supra), and by this court in Chandy's case(supra) and Hareendran Pillai's case (supra). Reliance placed by thelearned counsel for the respondent on the decision in Ramjilal Yadav'scase (supra) is, therefore, not correct. There, the contest for custody of thechild was between the father and maternal grandfather. The findingregarding jurisdiction of the court was entered into in the peculiar facts ofthe case. This is evident from the finding rendered by the court in thefollowing words:“But in a case like the present one, it is difficult to accept theproposition that the residence of the maternal grandfather whohappened to have just temporary custody of the child should be theplace of ordinary residence of the mother.” WPC 31927/2007-19-The facts show that the child was residing along with the mother in thepermanent residence of the father. But on a temporary visit to the residenceof the maternal grandfather in Nainital, the mother died and the child wasretained by the maternal grandfather. It is only in the above circumstances,it was held that the place of residence of the father is relevant. The facts ofthe said case are totally different from the facts of this case. But, whilediscussing the provisions of Section 6 of the Hindu Minority andGuardianship Act, 1956, the court also observed as follows:“Moreover a mother is supposed to have the custody of a child whohas not completed the age of 5 years under Section 6(1) of the HinduMinority and Guardianship Act, 1956. Therefore, while deciding thequestion of ordinary residence of the minor so long the child is of 5years of age, it has to be deemed that he is residing with the motherand the residence of the mother would be indicative of the ordinaryresidence of the child also.”This also supports the view taken by us on the facts of this case.For all these reasons, we quash Ext.P8. We hold that the petitionfiled by the father, Ext.P2 seeking to appoint him as the guardian of the WPC 31927/2007-20-minor Rishikesh, filed before the Family Court, Alappuzha is notmaintainable for want of territorial jurisdiction. The writ petition is allowed as above. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.)kav/