IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 166 of 2009()
1. ASHA ROSHNI, AGED 30 YEARS,
... Petitioner
Vs
1. G.UMA SHANKER, AGED 38 YEARS,
... Respondent
For Petitioner :SRI.SURESH KUMAR KODOTH
For Respondent :SRI.T.M.CHANDRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :28/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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Tr.P.(C).NO.166 OF 2009 ()
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Dated this the 28th day of July, 2009
O R D E R
Petition for transfer is filed under Section 24 of the Code
of Civil Procedure. Petitioner is the wife, and the respondent,
the husband. Matrimonial disputes between the parties have
given rise to a proceeding under the provisions of the
Guardians and Wards Act, 1890 at the instance of the
respondent father seeking the custody of two minor children
who are at present admittedly under the care and custody of
the petitioner mother. The respondent has filed the petition
O.P.No.412/2009, declaring him as guardian of the minor
children and also for their custody from the mother.
Admittedly, at present, from 2006 onwards, the children are
staying with the mother at her family house in Kasaragod.
The children are aged six and four years with eldest now
attending a School in Kasaragod. The petitioner mother has
filed this petition seeking transfer of the above petition
TPC.166/09 2
O.P.No.412/2009 to the Family Court, Kasaragod, highlighting
the inconvenience and difficulties in going over to Family
Court, Thrissur where it is now pending with the minor
children to attend the case before that court as and when it is
posted for enquiry.
2. Notice being given, the respondent has entered
appearance. The learned counsel for the respondent stoutly
opposing the application for transfer contended that the
children are at present only having a temporary residence at
Kasaragod and in considering the question of ‘ordinary
residence’ as covered under Section 9 of the Guardians and
Wards Act, the permanent residence of the minor children has
to be taken into account and not their temporary residence.
Another challenge raised by the learned counsel is that the
question of territorial jurisdiction is a matter which require to
be adjudicated if raised by the mother in the O.P. itself by the
Family Court, Thrissur. At this stage, it may not be correct
for this Court to consider that aspect in the transfer petition.
The learned counsel has relied on two decisions rendered by
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this Court in proceeding under the Guardians and Wards Act
to contend that ordinary residence of the children is to be the
place where the children ordinarily reside and not their
temporary residence. The decisions relied by the counsel are
Prabhu v. Rajani (2007 (2) KLT SN 38 (C.No.53)) and
Anitha Abraham v. Jacob Oommen (2003 (1) KLT 417).
3. I am not impressed by the challenges canvassed by
the learned counsel for the respondent to resist the
application for transfer. First and foremost, the District Court
within whose jurisdiction the minor children are residing is
the parent patriarch of the children. In a proceeding under
the Guardians and Wards Act, the production of the children
before the court as and when directed by the court is a must,
and further more, it is the interest of the children more than
the right of the parents that has to be considered in such
proceedings. Paramount interest of the minor children and
that alone is the material factor in resolving the disputes
arising under the Guardians and Wards Act. In this transfer
petition, I need not go into the question whether the place
TPC.166/09 4
where the children are now residing for the last more than
three years can be termed as their ordinary residence or not,
that question if found necessary can be resolved by the Family
Court, which ever that the court be where the proceedings is
taken up for consideration. How far the mother, an estranged
wife of the two minor children would be able to produce such
children to a far of place is also a matter to be taken into
account in deciding the question of transfer of the
proceedings. The eldest minor child is attending to a school is
also relevant in determining that question. Since I am not
deciding the question whether Thrissur or Kasaragod is the
ordinary place of residence of the children, I am not adverting
to the decisions referred to by the counsel and its application
in the present case. Prima facie, I am satisfied from the facts
and circumstances presented the transfer of the case from the
Family Court, Thrissur to the Family Court, Kasaragod is
essential for the paramount interest and welfare of the minor
children who have been residing there atleast for the last
three years with their mother. I make it clear that I am not
expressing any opinion that the place where the children are
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now residing is their ordinary place of residence as covered
under Section 9 of the Guardians and Wards Act. It is open to
the respondent, if so advised, to canvass the challenges
regarding the jurisdiction of the Family Court, Kasaragod, the
transferee court on transfer of the petition to determine that
question and if such a challenge is raised, the court will decide
it on the materials placed before it. Reserving the right of the
husband to raise that challenge in the transferee court, I
direct for transfer of the O.P. from the Family Court Thrissur
to Family Court, Kasaragod. The Judge, Family Court,
Thrissur shall transmit the records of the case forthwith to the
transferee court, and that court on receipt of records shall
issue notice to the parties for appearance.
Revision is allowed.
S.S.SATHEESACHANDRAN
JUDGE
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S.S.SATHEESACHANDRAN, J.
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CRL.M.C.NO. OF 2002 ()
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Dated this the day of April, 2009
O R D E R
S.S.SATHEESACHANDRAN
JUDGE
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