T.J. Chandy vs Mary Baneena and another

K.T. Thomas J.

Mridula and Mithun are two minor children for whose guardianship their father and mother are fighting now. Both the parents are employed in Dubai, though they hail from Ernakulam District. Mridula is aged seven and Mithun is aged four. For reasons better known to the spouses (those reasons are irrelevant in this revision) their relationship has been veritably broken and the spouses are active in exchanging invectives at each other. The mother (first respondent) came to Kerala with the children in February 1987 and admitted them in a school at Eloor (Ernakulam District) for their education. The father (the petitioner) filed a petition in the District Court, Ernakulam, under the provisions of Guardians and Wards Act, 1890 (for short ''the Act'') to appoint him (or to declare him) as the guardian of the children. The mother who stoutly resisted the petition contended, inter alia, that the ordinary residence of the children is in Dubai and hence the District Court, Ernakulam, has no jurisdiction. She wanted the court to decide the question of jurisdiction "before any other matter is considered in the original petition". The Additional District Judge who heard arguments found that the ordinary residence of the children is in Dubai and hence District Court, Ernakulam, has no jurisdiction to entertain the petition. According to the learned District Judge, the stay of the children with their maternal grand-mother (second respondent) is only "a transient stay", whereas is their permanent residence is actually in Dubai. On this finding the lower court rejected the petition filed by the petitioner. This revision is in challenge of the said order. Learned counsel for the petitioner contended that the court below fell in error in deciding that the District Court, Ernakulam, has no jurisdiction and that the children are permanently residing in Dubai. When question of jurisdiction is required to be decided as a preliminary issue, it could be decided either on the averments made in the petition or on the admitted facts, or on other acceptable materials available in this case. Here there is no admission that the children are ordinarily residing in Ernakulam District. So, the issue regarding jurisdiction has to be decided not only on averments but on other materials produced by the parties as well.

Petitioner has averred in paragraph 23 of the petition (which was filed on 3-6-1982) that the minor children "ordinarily reside" with the petitioner at Thulamattathil House, Maneed Village, Ernakulam District". The second respondent is residing in a flat in the FACT township at Eloor in Ernakulam District. It is admitted that the mother of the children reached Kerala by February, 1987 and thereafter the children have been residing with the second respondent in the flat attached to the FACT township as on the date of filing of the petition. The mother of the children had executed an instrument of power of attorney on 14-6-1987 appointing the second respondent as her attorney. The mother has stated in the said instrument that the custody and control of the children are entrusted to the second respondent and she is authorised to educate the children in India and also to present necessary petitions under the Act before District Court, Ernakulam or any other court for obtaining "legal sanction for the custody of the minor children". Certain other broad facts which could also be taken note of in this connection are that neither the children nor their parents have acquired citizenship in Dubai nor have they abandoned their Indian citizenship. None of them has expressed any intention to settle down in Dubai and neither of them has a building of his or her own in Dubai. It was submitted that they are temporarily employed in some companies in Dubai. There is no dispute that the petitioner''s family house is situated at Maneed village in Ernakulam District.

Sec. 9 of the Act deals with jurisdiction for entertaining applications filed under the Act. Sub-section (1) says that the application shall be made to the District Court having jurisdiction in the place where "the minor ordinarily resides" if the application is with respect to the guardianship of the person of the minor. In deciding the question whether the ordinary residence of the minor is within the Ernakulam District or in Dubai, it is immaterial whether their residence is at Eloor (with the second respondent) or at Maneed village where the family house of the petitioner is situate because both the said villages are within the limits of Ernakulam District-As the stand of the respondents is that the residence of the minors is in Dubai, no endeavour need be made to decide whether they have residence in any place other than Ernakulam District or Dubai.

The word "reside" is by no means free from ambiguity as the word is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. "Residence" has a connotation in law. It is not meant to take in places of temporary stay, however long the stay may be. Though a casual residence is also residence in a way, such transitory residence is not meant to be included within the purview of residence in law, unless a particular context justifies its inclusion. The residence must answer a qualitative as well as quantitative test and the two elements of factum at animus must concur. (Vide Smt. Satya Vs. Shri Teja Singh, ). Facts and circumstances of each case must be looked into to ascertain whether a person can be said to ordinarily reside at a given place. A permanent residence is the place where a person is expected to be ordinarily found. The place where mere physical presence is found may not necessarily be the place where he ordinarily resides. The express acceptable attributes of the expression "resides" in contexts like this are, to make an abode for a considerable time; to dwell permanently for or a length of time, or to have a settled abode for a time etc. (Vide Smt. Jeewanti Pandey Vs. Kishan Chandra Pandey, ). It is further observed in the said decision that residence is the place where a person has a fixed home or abode. "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". 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.

A single Judge of the Madras High Court has stated in Bhagyalakshmi and Another Vs. K.N. Narayana Rao, that "the paternal family house of the family residence may normaly be taken to be the place of ordinary residence of the minors as well, the words ''ordinarily resides'' are incapable of any exhaustive definition as those words have to be construed according to the purpose for which the enquiry is made". It has also to be borne in mind that mere temporary residence or residence by compulsion at a place however long, cannot be equated to or treated as the place of ordinary residence. Lentin, J. In Re: Giovanni Marco Muzzu and etc. etc., has observed that "residence may be transitory or permanent; the former is residence simpliciter or casual residence and the latter connotes the place where for all practical purposes a person is expected to be ordinarily found; that is the place he is said to ordinarily reside". AIR 1914 41 (Privy Council) was cited by both sides in support of the rival contentions. The decision does not afford much assistance to the question involved in this case since questions of facts alone were discussed and decided therein. Learned counsel for the respondents cited the following decisions also: Mt. Lalita Twaif Vs. Paramatma Prasad, , Virabala v. S. Harichand ( AIR 1973 Gujarat 1), Harihar Pershad Jaiswal Vs. Suresh Jaiswal and Others, and Amal Saha Vs. Smt. Basana Saha, . The essence of those decisions is that the question of ordinary residence is a question of fact which the court has to decide taking into consideration relevant facts and circumstances However, in H.P. Jaiswal''s case a single Judge of the Andhra Pradesh High Court has observed as follows: "It is not the place of residence of the natural guardian that gives jurisdiction to the court under Sec. 9(1) but it is the place of ordinary residence of the minor and the legislature has designedly used the word ''where the minor ordinarily resides'': hence the actual residence of the minor, having regard to the circumstances under which the minor happens to reside at a particular place must be taken into consideration in deciding the place where the minor ordinarily resides". The said decision does not in fact make a departure from the principles stated in the other decisions. The learned Judge has not excluded the residence of the natural guardian from the purview of consideration because if that house happens to be the ordinary residence of the minor, it does not matter that the house belongs to his guardian.

It is difficult to hold that the ordinary residence of the minor children, at the time of the filing of the petition, was at Dubai. When Dubai is thus eliminated, I can safely conclude that the ordinary residence of the children could either be at Eloor or at Maneed village. Since both the said villages are in Ernakulam District, it is unnecessary to consider which among those two places is the exact place of residence of the children because either of the places would be sufficient to cloth the District Court, Ernakulam with jurisdiction. The conclusion is irresistible that the District Court, Ernakulam has jurisdiction to entertain the petition. The finding of the court below has to be set aside and I do so. Revision is thus allowed without any order as to costs. The District Court, Ernakulam is directed to proceed with the Original Petition and dispose it of according to law.

C.R.P. Is disposed of in the above terms.