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Mat.A. No. 567 of 2011 - Askar Ali Ghan Vs. Mohammed Ali Haji, 2013 (1) KLT 16 : 2013 (1) KLJ 233

posted Jan 22, 2013, 12:46 AM by Law Kerala   [ updated Jan 22, 2013, 12:47 AM ]
IN THE HIGH COURT OF KERALA AT ERNAKULAM


K.M. Joseph and M.L. Joseph Francis, JJ.
Askar Ali Ghan Vs. Mohammed Ali Haji
Mat.A. No. 567 of 2011
Decided On : 06.12.2012
Head Note:-
Guardian and Wards Act, 1890 – Sections 9 & 12 – Jurisdiction – Custody of the child - Personal Law of Parties - For deciding the question of jurisdiction, the personal laws of the parties are irrelevant. 
Held:- In the present case, the child was taken away from the residence of the appellant at Palakkad to Malappuram, at a time when her mother Femina met with unnatural death on 17.11.2009 and the preset application for custody of the child was filed by the father of the child on 2.4.2010. But, in the order under challenge, the Family Court, Palakkad had mistakenly stated that the application was “filed on 2.4.2011 long after that”. This is a factual mistake committed by the Family Court, Palakkad. The application for custody of the child was filed by the petitioner on 2.4.2010, within five months from the date of removal of the child from the custody of the petitioner. Since the appellant/petitioner is the natural guardian of the child and since he is permanently residing at Palakkad within the jurisdiction of the Family Court, Palakkad and the child was residing with the appellant/petitioner till his removal on 17.11.2009, we are of the view that the Family Court, Palakkad alone has jurisdiction to deal with the matter. While deciding the question of jurisdiction, the personal laws of the parties are irrelevant. Therefore, we find that the Family Court, Palakkad is not justified in finding that that court has no territorial jurisdiction to entertain the petition.
For Appellant: 
  • K. Mohanakannan
  • A. Nalini Kumari
For Respondent: 
  • P. Samsudin
J U D G M E N T
M.L. Joseph Francis, J.

1. This appeal is filed by the petitioner in I.A.2334/10 in O.P.338/2010 on the file of the Family Court, Palakkad. That I. A. was filed by the petitioner in the Original Petition under Section 12 of the Guardians and Wards Act, 1890 (for short, ‘the Act’) for interim custody of the minor. The respondents herein are the respondents in that I. A. and Original Petition.

2. The appellant/petitioner is the father of the minor child Asbah Fathima, aged 2 years. According to the petitioner, the child was removed from his custody and is not being brought up ensuring her welfare and hence custody has to be handed over to him. The child is very much attached to him and he is having emotional problems also. The respondents 1 and 2 filed counter statement contending that the Family Court, Palakkad has no jurisdiction to entertain the O.P. and further contending that the mother of the minor child Femina died on 17.11.2009 and it was an unnatural death and that the death is a homicide. A complaint was registered and F.I.R. was originally registered under Section 174 of Criminal Procedure Code which was converted to one under Section 304B and 306 read with Section 341.P.C. It is further contended that a Muslim female chi Id who is under puberty and devoid of her mother due to death or separation from her father should be given in the custody of mother’s mother as per Muslim Personal Law. In this case, the second respondent is the maternal grandmother of the child in question who is now looking after the minor child by providing all benefits for the welfare of the child. They are presently residing at Melattur in Malappuram District and the matter can be entertained only by the Family Court at Malappuram.

3. In the I. A., the question of jurisdiction was considered as a preliminary issue by the Family Court, Palakkad. The Family Court found that the said court has no jurisdiction to entertain the Original Petition and that the Family Court, Malappuram alone has jurisdiction to entertain the Original Petition and on the basis of that finding, that I. A. was dismissed. Against that order, the petitioner in the I.A. filed this appeal.

4. Heard learned counsel for the appellant and the learned counsel for the respondents.

5. At the time of hearing, learned counsel for the appellant raised the following contentions: The court below has wrongly held that as per Section 9 of the Act the ordinary residence of the child is at Malappuram where she is now residing with respondents and therefore, Family Court, Palakkad has no jurisdiction. This is absolutely incorrect. The court below has failed to take note of a decision of this Court reported in Vasu Vs. Muralidharan, 2009 (1) KLT 480, wherein it was held that while dealing with Section 9 of the Act, the ordinary residence of the child can be ordinary residence of either of the parents where both the parents are living apart. If one of the spouse is not living, necessarily the other place having jurisdiction is the place where the spouse is living. Since the father is the natural guardian and he is permanently residing at Palakkad within the jurisdiction of Family Court, Palakkad, the said court has jurisdiction to deal with the matter. For deciding the question of jurisdiction the personal laws of the parties are irrelevant. Since Section 9 of the Act deals with jurisdiction the primary concern of the courts is to interpret the provisions of the Act and to decide the issue of jurisdiction. The learned counsel for the respondent supported the order under challenge.

6. Section 9 of the Guardians and Wards Act provides that an application with respect to the guardianship of the person of a minor should be made to the District Court having jurisdiction in the place where the minor ordinarily resides. The term “resides” is not defined in the Act. After the establishment of the Family Court, the Family Court is exercising the jurisdiction conferred earlier on the District Court.

7. In the decision reported in Sarada Nayar Vs. Vayankara Amma & Ors., 1957 KLT 466 it was held:
“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 the presentation of the application. The emphasis is undoubtedly on the minor’s ordinary place of residence. Such a place has to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place. Where the application is filed soon after such removal 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 it was ordinarily residing. The new place to which the minor may have gone or may have been removed, can 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.” 
In the decision reported in Vasu v. Muralidharan, 2009 (1) KLT 480, it was held: 
“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. 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 elsewhere 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.”
8. The full text of the decision reported in Prabhu Vs. Rajani, 2007 (2) KLT SN 38 C.No.53 shows that this Court observed 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 and that ordinary residence is a matter to be looked into by taking evidence.

9. In the decision reported in Ruchi Majoo Vs. Sanjeev Majoo, 2011 (2) KLT 788 (SC) it was held:
“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 arid pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under S.9(1) of the Act.
10. In the present case, the child was taken away from the residence of the appellant at Palakkad to Malappuram, at a time when her mother Femina met with unnatural death on 17.11.2009 and the preset application for custody of the child was filed by the father of the child on 2.4.2010. But, in the order under challenge, the Family Court, Palakkad had mistakenly stated that the application was “filed on 2.4.2011 long after that”. This is a factual mistake committed by the Family Court, Palakkad. The application for custody of the child was filed by the petitioner on 2.4.2010, within five months from the date of removal of the child from the custody of the petitioner. Since the appellant/petitioner is the natural guardian of the child and since he is permanently residing at Palakkad within the jurisdiction of the Family Court, Palakkad and the child was residing with the appellant/petitioner till his removal on 17.11.2009, we are of the view that the Family Court, Palakkad alone has jurisdiction to deal with the matter. While deciding the question of jurisdiction, the personal laws of the parties are irrelevant. Therefore, we find that the Family Court, Palakkad is not justified in finding that that court has no territorial jurisdiction to entertain the petition.

Accordingly, this appeal is allowed and the order in I.A. No. 2334 of 2010 in O.P. No. 338 of 2010 on the file of the Family Court, Palakkad is set aside on finding that the Family Court, Palakkad has territorial jurisdiction to entertain the petition. The Family Court, Palakkad is directed to proceed with the case in accordance with law. There is no order as to costs. However this judgment will not stand in the way of the respondent applying for transfer of the case to another court.


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