(2012) 282 KLR 619 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH 

WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934 

Tr.P(C).No. 130 of 2012 () 

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OPGW.193/2012 of FAMILY COURT,TRIVANDRUM 

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PETITIONER(S) : 

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SUCHITHRA MADHUSOODHANAN AGED 27 YEARS, D/O.RADHAMANI, THATTARATH HOUSE, MULAKKARA P.O., PATHANAMTHITTA. 

BY ADV. SRI.S.SUBHASH CHAND 

RESPONDENT(S) : 

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NAVEEN R.NAIR AGED 32 YEARS, S/O.K.R.T.C.NAIR, A2, GEETHANJALI, PILLAVEEDU NAGAR, KESAVADASAPURAM - 695 001. 

R BY ADV. SRI.P.A.AHAMMED R BY ADV. SRI.THOUFEEK AHAMED 

THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

APPENDIX 

PETITIONER(S) ANNEXURES : 

• ANNEX.1 : COPY OF THE O.P.NO.193/12 FILED BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. 
• ANNEX.3 : COPY OF THE CERTIFICATE DATED 12.08.2001 ISSUED BY THE HINDU MARRIAGE REGISTRAR, ALANDUR. 
• ANNEX.4 : COPY OF THE CERTIFICATE ISSSUED BY THE SECRETARY OF NSS KARAYOGAM NO.237 MALAKKARA. 
• ANNEX.5 : COPY OF THE BIRTH CERTIFICATE DATED 04.04.2009 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHA, KOZHENCHERRY GRAMA PANCHAYAT. 
• ANNEX.6 : COPY OF THE RESIDENTIAL CERTIFICATE DATED 09.07.2012 ISSUED BY THE SECRETARY, ARANMULA GRAMA PANCHAYAT. 
• ANNEX.7 : COPY OF THE RECEIPT DATED 01.06.2012 ISSUED IN CONNECTION WITH THE ADMISSION OF CHILD AMUDHA NAVEEN IN VANI PUBLIC SCHOOL, CHENGANOOR. 
• ANNEX.8 : COPY OF THE ORDER DATED 09.04.2012 PASSED BY THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS 1, PATHANAMTHITTA. 
• ANNEX.9 : COPY OF THE ORDER DATED 09.04.2012 PASSED BY THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS 1, PATHANAMTHITTA. 
• ANNEX.10 : COPY OF THE ORDER DATED 27.02.2012 PASSED BY THE FAMILY COURT, THIRUVANANTHAPURAM. 
• ANNEX.11 : COPY OF THE HALL TICKET BEARING REGISTRATION NO.121711 
• ANNEX.12 : COPY OF THE MERIT CARD ISSUED BY THE PRINCIPAL OF VANI PUBLIC SCHOOL, CHENGANNUR TO AMUDHA NAVEEN. 
• ANNEX.13 : COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER MAINTAINED IN VANI PUBLIC SCHOOL FOR THE STANDARD LKG FOR THE MONTH OF SEPTEMBER 2012. 
• ANNEX.14 : COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER MAINTAINED IN VANI PUBLIC SCHOOL FOR THE STANDARD LKG FOR THE MONTH OF OCTOBER 2012.
• ANNEX.15 : COPY OF THE FEE RECEIPT DATED 16.10.2012 EVIDENCING PAYMENT OF MONTHLY FEE FOR THE MONTHS OF SEPTEMBER AND OCTOBER 2012. 
• ANNEX.16 : COPY OF THE ORDER DATED 29.10.2012 PASSED BY THIS HON'BLE COURT IN CRL.M.C.NO.3380 OF 2012. 

RESPONDENTS ANNEXURES: 

• ANNEX.R1(A) : COPY OF THE ORDER IN I.A.NO.414/2012 IN OP(GW) NO.193/2012 DATED 27.02.2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM. 
• ANNEX.R1(B) : COPY OF THE FREE RECEIPT DATED 23.01.2012. 
• ANNEX.R1(C) : COPY OF THE FIRST INFORMATION REPORT NO.123/2012 OF MUSEUM POLICE STATION DATED 29.01.2012. 
• ANNEX.R1(D) : COPY OF THE CERTIFICATE DATED 28.05.2012 ISSUED BY G.SURESH KUMAR, COUNCILOR. 
• ANNEX.R1(E) : COPY OF ORDER IN IA NO.1593/2012 IN OP(GW) NO.193/2012 DATED 19.05.2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM. 
• ANNEX.R1(F) : COPY OF THE LETTER DATED 23.10.2012 ISSUED FROM OFFICE OF AGM-HUMAN RESOURCES TO PETITIONER/RESPONDENT. 
• ANNEX.R1(G) : COPY OF THE PETITION FILED BY THE PETITIONER IN OP(G&W) NO.193/12 DATED 05.11.2012 ON THE OF THE FAMILY COURT, THIRUVANANTHAPURAM. 
• ANNEX.R1(H) : COPY OF THE LETTER DATED 24.09.2012 FROM VANI PUBLIC SCHOOL TO THE RESPONDENT. 
• ANNEX.R1(I) : COPY OF THE CMP NO.7516/2012 FILED BY THE RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PATHANAMTHITTA DATED 15.10.2012.
• ANNEX.R1(J) : COPY OF THE OBJECTION FILED BY RESPONDENT IN IA NO.1225/2012 IN OP (G&W) NO.193/12 BEFORE THE FAMILY COURT, TRIVANDRUM. 
• ANNEX.R1(K) : COPY OF THE COMMISSION APPLICATION FILED BY PETITIONER IN OP NO.1296/2012 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM. 
• ANNEX.R1(L) : COPY OF THE INVENTORY REPORT DATED 16.08.2012 IN OP NO.1296/2012 ON THE FILE OF THE FAMILY COURT, THIRRUVANANTHAPURAM. 
• ANNEX.R1(M) : COPY OF THE AFFIDAVIT AND PETITION FILED BY THE ADVOCATE OF RESPONDENT IN OP (W&G) NO.193/2012 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM. 

/TRUE COPY/ P.A.TO JUDGE AMV 

V.CHITAMBARESH,J. 

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Tr.P.(C) No. 130 of 2012 

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Dated this the 12th day of December, 2012 

Head Note:-

Guardian and Wards Act, 1890 - Section 9 - Only the court having jurisdiction in the place where the minor ordinarily resides can entertain a petition for guardianship. The mere fact that the mother or the father of the child was stationed temporarily at various places in connection with their employment is immaterial.

O R D E R 

O.P(G &W) No.193/2012 on the file of the Family Court, Thiruvananthapuram has been filed by the wife for permanent custody of her minor daughter - Amudha Naveen -now aged 4 = years . The wife is employed as a non technical senior executive in U.S.T Global Technopark, Thiruvananthapuram and her husband is working as the Bureau Chief in CNN IBN, Thiruvananthapuram. It is stated that the wife is under orders of transfer to Ernakulam and that her job enables her to lend her services from home compelling her to attend office only in connection with important meetings. It is further stated that the petition for permanent custody was filed at Thiruvananthapuram when she was occupying a rented house at Sasthamangalam at Thiruvananthapuram which has subsequently been vacated in September 2012. The wife seeks transfer of the case from the Family Court, Thiruvananthapuram to the Family Court, Pathanamthitta even though the prayer in the petition for transfer mentions Alappuzha which is a neighbouring district of Pathanamthitta. 

2. The husband contends that the wife had preferred the petition for permanent custody of the child at Thiruvananthapuram on her own volition and that she should not be permitted to get a transfer of the case to another place dependant on her employment. It is further stated that her base working station is at Thiruvananthapuram only even though she may be occupying rented premises at Ernakulam or elsewhere. The husband points out that the child, Amudha Naveen has been left with the mother of the wife at Malakkara , Pathanamthitta and that no case for transfer is made out. The husband contends that he got a transfer from New Delhi to Thiruvanthapuram only for the purpose of spending more time with the child Amudha Naveen and his wife (now estranged). 

3. It may at once be noticed that the child may have to appear in the Family Court often in connection with interim custody and also in the enquiry about her wishes by the Presiding Officer. The following documents would reveal that the child is presently studying in the Vani Public School, Chengannur at Pathanamthitta 

i) Fee receipt of Vani Public School (Annexure 7). 

ii) Hall ticket issued for Asia Scholarship Examination which mentions the school also (Annexure 11) 

iii) Merit Card issued by the school (Annexure 12) 

iv) Attendance register maintained by the school (Annexure 14) 

v) Fee receipt issued by the school (Annexure 15) 

vi) Letter issued by the school complaining of unauthorised absence of child. (Annexure R1(h)) 

These documents prima facie show that the child is studying in the Vani Public School, Chengannur falling within the jurisdiction of the Family Court, Pathanamthitta 

4. It is conceded that the mother of the wife is residing at Malakkara in Pathanamthitta. The permanent residence of the wife is also at Malakkara,Pathanamthitta as is evident by the Residential Certificate issued by the Secretary of Grama Panchayath (Annexure 6). The minor ordinarily resides within the jurisdiction of the Family Court, Pathanamthitta to which Court the transfer is now sought. Only the court having jurisdiction in the place where the minor ordinarily resides can entertain a petition for guardianship under Section 9 of the Guardian and Wards Act, 1890. The mere fact that the mother or the father of the child was stationed temporarily at various places in connection with their employment is immaterial. A reference in this connection to the judgment in T.J.Chandy vs. Mary Baneena and another (1988 (1)KLJ 529) is apposite. It is held therein as follows. 

"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 to another and from one jurisdiction to another. The expression "ordinarily resides" connote a regularly settled home and not a place of stay where the children are obliged to dwell by force of circumstances or compulsion of parent's employment." 

5. The wife has explained that she could not succeed in securing admission for the child at Sree Atamanada Memorial School, Malakkara owing to the fact that she was not 4 = years then. The documents aforementioned prima facie show that Amudha Naveen is now studying in the Vani Public School within the jurisdiction of the Family Court, Pathanamthitta . It will be a virtual impossibility for the wife and child to travel all the way from Pathanamthitta to Thiruvanthapuram for the conduct of the case. It may only be a slight inconvenience for the husband to travel from Thiruvanathapuram to Pathanamthitta for this purpose. 

6. I therefore order transfer of O.P (G & W)No.193/2012 from the Family Court, Thiruvananthapuram to the Family Court, Pathanamthitta at Thiruvalla. Either parties are at liberty to move the Family Court, Pathanamthitta for visiting rights during the weekends, Onam holidays, Christmas holidays and the Summer holidays. 

7. The husband points out that there is a paucity of time now to move the transferee court for interim custody of the child during the Christmas vacation for the year 2012. I find that the child -Amudha Naveen - has through out been with the wife during the pendency of the proceedings. I therefore permit the respondent father to have interim custody of the child for eight days during the Christmas vacation in the year 2012. The wife shall hand over the child -Amudha Naveen- to the husband at 10.a.m on 20-12-2012. The husband shall return the child at 10.a.m on 28-12-2012. The venue for handing over the child on these two occasions will be the Family court, Pathanamthitta at Thiruvalla. The husband laments that the order passed by the Family Court, Thiruvanthapuram as regards interim custody during alternate Saturdays is not strictly being complied with by the wife. That is a matter to be brought to the notice of the transferee court which will deal with all the aspects. 

The Transfer Petition (Civil) is disposed of. No costs. 

V.CHITAMBARESH. JUDGE 

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