Elna Paul Chalisserry vs Thomas Kuruvila, S/o. C.T. Kuruvila

Dr. Kauser Edappagath, J

This original petition has been filed challenging common order passed in IA Nos.2/2020 and 3/2021 in OP No.2159/2020 dated 20th April, 2021 on the file of the Family Court, Thrissur (for short, 'the Court below').

The petitioner and the respondent are divorced spouses. A baby daughter was born to them on 7/11/2012. The original petition was filed by the respondent/father seeking permanent custody of the child. He filed IA No.2/2020 for the interim custody. The petitioner disputed the territorial jurisdiction of the Court below to entertain and try the petition on the ground that the child does not ordinarily reside within the jurisdiction of the Court below. Hence, she filed IA No.3/2021 to consider the jurisdiction issue as a preliminary issue. The Court below after hearing both sides found that it has territorial jurisdiction to try the petition. Accordingly IA No.3/2021 was dismissed. The minor child was directed to be produced before the Court so as to interact with the child to consider the prayer for interim custody. IA No.2/2020 was adjourned for interaction with the child. The petitioner/wife challenges the common order in IA Nos.2/2020 and 3/2021 in this original petition.

Heard both sides.

The marriage between the petitioner and the respondent was dissolved as per the order in OP No.1216/2015 by filing a joint petition u/s 10A of the Indian Divorce Act. At the time of filing the joint petition, both parties had arrived at a settlement regarding the custody of the child and they entered into a settlement agreement on 7/11/2013 which has been marked as Ext.P2. As per Clause (10) of the settlement agreement, the custody of the child was given to the petitioner subject to the visitation right of the respondent once in every month till the minor attains the age of 5 years. It was specified in the said clause that the place of visit shall be at Thrissur or nearby to Thrissur. It was further agreed that after the minor completes the age of 5 years, whenever the respondent visits Kerala, both parties shall take a decision about allowing the minor to stay with him. Alleging that the petitioner violated the terms of settlement, the respondent preferred original petition for permanent custody.

The petitioner challenged the territorial jurisdiction on the ground that the minor ordinarily resides at Bangalore along with her and, hence, the Court below has no jurisdiction to entertain and try the petition. It is not in dispute that the minor was earlier permanently residing within the jurisdiction of the Court below. There are records to show that at the time of separation of the petitioner and the respondent, the minor was residing at Thrissur along with the petitioner. However, the contention of the petitioner is that at present, she along with the minor are ordinarily residing at Bangalore.

S.9(1) of the Guardian and Wards Act, 1890 provides that if the application is with respect to guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. It is settled that a temporary stay or casual or transitory residence of the minor at the time of filing the petition does not necessarily determine the jurisdiction of the Court. The expression "ordinarily resides" connotes a regularly settled home and not a place of stay where the children are obliged to dwell by force of circumstances or compulsion of the employment of parents [see Chandy v. Mary Baneena (1988 (1) KLT 611)]. The Apex Court in Jeewanti Pandey v. Kishan Chandra Pandey (AIR 1982 SC 3) has held that "in order to give jurisdiction on the ground of 'residence', something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the Court in which the respondent is sued, is his natural forum". Recently, a Single Judge of this Court in Divya J.Nair v. S.K.Sreekanth (2018 (4) KLT 620) has held that "the ordinary place of residence of the child would be the place of residence of his parents and when the parents are living separately, it has to be ascertained with whom the child was residing on a permanent basis or for a considerably long period of time immediately prior to the filing of the application. Ordinary residence means more than a temporary residence.

The Court below found that the petitioner failed to produce documents showing the ordinary place of residence of the minor at Bangalore such as address of the residential building, documents issued by the school in which the minor is studying etc,. Accordingly, challenge against the jurisdiction was rejected. The petitioner has produced before this Court certain vital documents to substantiate her plea that the child is ordinarily residing at Bangalore. The original petition for permanent custody has been filed by the respondent on 14th December, 2020. The certificates issued by the school where the child is studying would show that even prior to that, the child was studying at Delhi Public School, Bangalore North. The petitioner is a dentist. She has produced a certificate from her employer dated 10th August, 2021. It would show that the petitioner is working at a dental clinic as dentist at Bangalore since February, 2020. The petitioner has also produced her latest Aadhaar card issued on 9/2/2021 in which her address is shown at Bangalore. The definite case of the petitioner is that she has contracted second marriage, got employment at Bangalore and permanently settled there. We are of the view that these documents are very relevant to decide the question of jurisdiction. The Court below rejected the challenge against jurisdiction raised by the petitioner only on the ground that she failed to produce the document to show the ordinary residence of the child. Considering all these facts, we are of the view that an opportunity has to be given to the petitioner to substantiate her plea that the child is ordinarily residing at Bangalore.

We, in these circumstances, set aside the impugned order and remand both IA Nos.2/2020 and 3/2021 to the Court below. The Court below shall give opportunity to both sides to produce documents and thereafter shall decide IA No. 3/2021 first. If the Court below finds that it has territorial jurisdiction, it shall proceed with IA No.2/2020 thereafter. Both parties shall appear at the Court below on 17/11/2021. The original petition is allowed as above.