{"id":170299,"date":"2008-10-24T00:00:00","date_gmt":"2008-10-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-lakshmi-sankar-vs-suresh-k-surendranathan-on-24-october-2008"},"modified":"2015-05-27T06:05:22","modified_gmt":"2015-05-27T00:35:22","slug":"ms-lakshmi-sankar-vs-suresh-k-surendranathan-on-24-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-lakshmi-sankar-vs-suresh-k-surendranathan-on-24-october-2008","title":{"rendered":"Ms.Lakshmi Sankar vs Suresh K.Surendranathan on 24 October, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ms.Lakshmi Sankar vs Suresh K.Surendranathan on 24 October, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 31927 of 2007(S)\n\n\n1. MS.LAKSHMI SANKAR, 33 GALLOP LANE,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SURESH K.SURENDRANATHAN, C\/O.K.S.NAIR,\n                       ...       Respondent\n\n                For Petitioner  :SMT.K.V.BHADRA KUMARI\n\n                For Respondent  :SRI.S.ANIL KUMAR (CHERTHALA)\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :24\/10\/2008\n\n O R D E R\n                                   P.R.Raman &\n                        T.R. Ramachandran Nair, JJ.\n                    - - - - - - - - - - - - - - - - - - - - - - - -\n                         W.P.(C) No.31927 of 2007-S\n                      - - - - -- - - - - - - - - - - - - - - - - - - - -\n                 Dated this the 24th day of October, 2008.\n\n                                  JUDGMENT\n<\/pre>\n
Ramachandran Nair, J.\n<\/p>\n
       This writ petition is one challenging the preliminary judgment passed<\/p>\n
by the Family Court, Alappuzha in O.P.No.1341\/2005 to the effect that it<\/p>\n
has got territorial jurisdiction to entertain the petition filed by the husband<\/p>\n
seeking custody of the child.\n<\/p>\n
       2. The basic facts leading to the dispute are the following: The<\/p>\n
parties married on 20.8.1999 at Trivandrum. After the marriage, the<\/p>\n
husband who is a B. Tech. Degree holder, proceeded to                      California,<\/p>\n
U.S.A. to avail a job there. The wife accompanied him subsequently, in<\/p>\n
December 1999. She is a post-graduate in M.A. Journalism and Mass<\/p>\n
Communications. The minor son was born in the wedlock on 15.4.2003 at<\/p>\n
U.S.A. The parties continued their residence along with the child in U.S.A.<\/p>\n
Pursuant to the disputes with the wife, the husband came back to India and<\/p>\n
later filed Ext.P2 original petition in October 2005 seeking for a decree for<\/p>\n
allowing him to keep the custody of the child, invoking Sections 12 and 25<\/p>\n
of the Guardian and Wards Act, read with Section 7 of the Family Courts<\/p>\n
WPC 31927\/2007                         -2-<\/span><\/p>\n
Act. The address of the wife shown in the petition is “33 Gallop Lane,<\/p>\n
Somersat New Jersey, U.S.A. Her parents are there in New Jersey, U.S.,<\/p>\n
from the year 2000. Initially the wife filed objections, Ext.P3, to the main<\/p>\n
petition. Thereafter, by way of an amendment she sought to challenge the<\/p>\n
territorial jurisdiction of the Family Court and the amendment was allowed<\/p>\n
on payment of cost         Rs.1,000\/- which was paid.     Ext.P5 is the said<\/p>\n
amendment petition. Thereafter, the question of jurisdiction was heard as a<\/p>\n
preliminary issue.     Ultimately, Ext.P8 order has been passed by the Family<\/p>\n
Court     overruling the objections filed by the wife challenging the<\/p>\n
maintainability of the petition before the Family Court at Alappuzha.<\/p>\n
       3. One more thing which is to be mentioned is that the wife had<\/p>\n
obtained Ext.P1, an order passed by the Superior Court of New Jersey by<\/p>\n
which the custody of the minor child was ordered in her favour.<\/p>\n
       4. In Ext.P8 order, the Family Court found in favour of the husband<\/p>\n
regarding the maintainability of the petition, mainly for the reason that<\/p>\n
“ordinarily the permanent residence of a Hindu minor is the residence of his<\/p>\n
father, i.e. the father’s fixed abode or house. Though the child was born in<\/p>\n
2003 at U.S.A., since his parents were residing there at that time, the<\/p>\n
permanent residence or ordinary residence of the child cannot be taken as<\/p>\n
California in U.S.A., where the parents were residing along with the child or<\/p>\n
WPC 31927\/2007                         -3-<\/span><\/p>\n
New Jersey, where the children is now residing along with her mother, the<\/p>\n
respondent and herself resides along with her parents as the child has to<\/p>\n
move along with his parents till his attaining majority.” Ultimately, the<\/p>\n
conclusion reached is that for considering a petition for guardianship, the<\/p>\n
permanent residence of the father has to be taken as the ordinary residence<\/p>\n
of the minor which is within the jurisdiction of the Family Court, Alappuzha<\/p>\n
and hence, that court has territorial jurisdiction to entertain the petition. The<\/p>\n
above finding is under challenge in this writ petition.<\/p>\n
      5. We have heard Smt. K.V. Bhadra Kumari, learned counsel for the<\/p>\n
petitioner, Shri S. Anil Kumar and Shri.T.R.Mohanakumar, learned counsel<\/p>\n
for the respondent and Shri V. Philip Mathews, learned counsel for the<\/p>\n
impleading petitioner.\n<\/p>\n
      6.     Learned counsel for the petitioner contended that the wife and<\/p>\n
the child are residing in New Jersey in U.S.A. They are therefore not settled<\/p>\n
in India. Even going by the averments in para 27 of Ext.P2 filed by the<\/p>\n
husband, in August 2004 both the husband and wife got the green card<\/p>\n
approved. The child was born in U.S.A. and is a citizen of that country.<\/p>\n
The husband alone came back to India and has filed the petition seeking<\/p>\n
guardianship of the minor. Even before the said petition was filed, the wife<\/p>\n
moved the Superior Court of New Jersey which has passed Ext.P1 order<\/p>\n
WPC 31927\/2007                        -4-<\/span><\/p>\n
granting custody of the child to the mother. That order is still in force.<\/p>\n
Apart from that, the welfare of the child has to be considered. For the<\/p>\n
purpose of considering the jurisdiction of the Family Court, what is required<\/p>\n
under Section 9 of the Guardian and Wards Act, 1890 is to find out the<\/p>\n
place where the child ordinarily resides. Herein, the child never resided<\/p>\n
within the jurisdiction of the Alappuzha Court and even now the child is<\/p>\n
not “ordinarily residing within the jurisdiction of that court.” It is also<\/p>\n
pointed out that even in Ext.P2 petition filed by the father, no proper<\/p>\n
averments have been made as to how the court at Alappuzha will get<\/p>\n
jurisdiction and the averments contained in para 50 are not sufficient to<\/p>\n
hold that the Family Court, Alappuzha will have jurisdiction to decide the<\/p>\n
matter. Learned counsel for the petitioner relied upon the principles stated<\/p>\n
by the Apex Court in Smt. Surinder Kaur Sandhu v. Harbax Singh<\/p>\n
Sandhu and<\/a> another {(1984) 3 SCC 698}.\n<\/p>\n
      7. Learned counsel appearing for the husband\/first respondent mainly<\/p>\n
contended that the child being a minor and the father being the natural<\/p>\n
guardian, the child will have to follow the residence of the said natural<\/p>\n
guardian and that alone is the true test to decide the jurisdiction of the court.<\/p>\n
The respondent is a native of Mannar, within Alappuzha District. His<\/p>\n
WPC 31927\/2007                        -5-<\/span><\/p>\n
permanent address is that of the family house in that village. It is also<\/p>\n
contended that the child was removed by the mother from their house at<\/p>\n
California and such acts of the mother cannot be considered for the purpose<\/p>\n
of considering the jurisdiction of the Family Court at Alappuzha. It is<\/p>\n
submitted that the finding rendered by the Family Court that the permanent<\/p>\n
residence of the father has to be taken as ordinary residence of the minor, is<\/p>\n
perfectly justified. Reliance is also placed on the decisions of this court in<\/p>\n
Chandy v. Mary Baneena (1988 (1) KLT 611) and Hareendran Pillai v.<\/p>\n
Pushpalatha<\/a> (2007 (1) KLT 842) and that of the Delhi High Court in<\/p>\n
Ramjilal Yadav v. Dalip K. Yadav (1999 (1) HLR 237).\n<\/p>\n
      8. The petition filed by the father as per Ext.P2 is under the Guardian<\/p>\n
and Wards Act.       Section 9(1) of the said Act provides that “if the<\/p>\n
application is with respect to the guardianship of the person of the minor, it<\/p>\n
shall be made to the District Court having jurisdiction in the place where the<\/p>\n
minor ordinarily resides.” As far as the Family Courts Act is concerned,<\/p>\n
Section 7 of Chapter III concerns with jurisdiction of the court. The other<\/p>\n
provision that is relevant is Section 6 of the Hindu Minority and<\/p>\n
Guardianship Act, 1956. The said provision along with the proviso, is<\/p>\n
extracted below:\n<\/p>\n
WPC 31927\/2007                         -6-<\/span><\/p>\n
       “6. Natural guardians of a Hindu minor.- The natural guardian of<\/p>\n
       a Hindu minor, in respect of the minor’s person as well as in respect<\/p>\n
       of the minor’s property (excluding his or her undivided interest in<\/p>\n
       joint family property) are.-\n<\/p><\/blockquote>\n
              (a) in the case of a boy or an unmarried girl – the father, and<\/p>\n
       after him the mother.\n<\/p><\/blockquote>\n
              Provided that the custody of a minor who has not completed<\/p>\n
       the age of five years shall ordinarily with the mother;<\/p><\/blockquote>\n
      9. The facts pleaded by the parties show that the marriage was held in<\/p>\n
Trivandrum on 20.8.1999. The husband proceeded to California to take up<\/p>\n
a new job after the marriage. The wife also accompanied him there. The<\/p>\n
child was born in the year 2003. Ext.P1 is the certificate issued by the<\/p>\n
Superior Court of New Jersey wherein the sole legal and physical custody of<\/p>\n
the child was awarded to the petitioner\/wife. This order is passed in<\/p>\n
October 2005. According to her, she received summons to appear before<\/p>\n
the Family Court, Alappuzha on 6.12.2005. Even in Ext.P2 petition filed by<\/p>\n
the husband under Sections 12 and 25 of the Guardian and Wards Act, her<\/p>\n
address in U.S.A. alone is shown. In para 50 of Ext.P2 regarding the cause<\/p>\n
of action, what is stated is that “the cause of action of the OP arise in the<\/p>\n
above mentioned circumstances and on 20.8.1999, the date of marriage, and<\/p>\n
on 1.10.2004, the date       the counter petitioner deserted the petitioner<\/p>\n
WPC 31927\/2007                        -7-<\/span><\/p>\n
continuously thereafter, at Mannar Village, which is within the jurisdiction<\/p>\n
of this Hon’ble Court.” If the case of the husband is accepted, desertion by<\/p>\n
the wife happened in U.S.A. and not in this country.       That happened in<\/p>\n
California. No cause of action arose within Mannar Village, as shown in<\/p>\n
para 50 of Ext.P2. She continues her residence along with her child at New<\/p>\n
Jersey which fact is not disputed by the respondent. Her parents are residing<\/p>\n
there. It is submitted that she is having a job there. Therefore, it can be<\/p>\n
conclusively held that at no point of time the child was ‘ordinarily residing’<\/p>\n
within the jurisdiction of the Family Court, Alappuzha.<\/p>\n
       10. Then, the question is whether, for the purpose of deciding the<\/p>\n
jurisdiction what is relevant is only the permanent residence of the husband<\/p>\n
in India, as contended by the learned counsel for him. It is further argued<\/p>\n
that the place of residence of the mother is by compulsion.<\/p>\n
       11. Going by Section 9 of the Guardian and Wards Act, the place of<\/p>\n
ordinary residence of the child is the determinative factor. Herein the same<\/p>\n
has to be found out from the facts shown above. It is true that the father is<\/p>\n
the natural guardian, going by Section 6 of the Hindu Minority and<\/p>\n
Guardianship Act. But going by the proviso, in a case where the child is<\/p>\n
below the age of 5, the mother is the natural guardian. It is well settled that<\/p>\n
while granting custody of the child, the paramount consideration is the<\/p>\n
WPC 31927\/2007                        -8-<\/span><\/p>\n
welfare of the minor. The court will have to consider various aspects to<\/p>\n
find out–after referring to the competing claims of the father and the<\/p>\n
mother–as to who among them should be appointed as a guardian.<\/p>\n
      12. Bearing in mind this aspect let us analyse the principles stated in<\/p>\n
the various decisions relied upon by either of the parties, rendered by this<\/p>\n
court and the Apex Court. In Chandy’s case (supra), the meaning of the<\/p>\n
word “resides” in Section 9 of the Guardian and Wards Act, 1890 came up<\/p>\n
for consideration. It was held in para 5 as follows:\n<\/p>\n
      “The word “reside” is by no means free from ambiguity as the word<\/p>\n
      is capable of a variety of meanings according to the circumstances to<\/p>\n
      which it is made applicable and the context in which it is found.<\/p>\n
      “Residence” has connotation in law. It is not meant to take in places<\/p>\n
      of temporary stay, however long the stay may be. Though a casual<\/p>\n
      residence is also residence in a way, such transitory residence is not<\/p>\n
      meant to be included within the purview of residence in law, unless a<\/p>\n
      particular context justifies its inclusion. The residence must answer<\/p>\n
      a qualitative as well as quantitative test and the two elements of<\/p>\n
      factum at animus must concur. Facts and circumstances of each case<\/p>\n
      must be looked into to ascertain whether a person can be said to<\/p>\n
      ordinarily reside at a given place. A permanent residence is the place<\/p>\n
      where a person is expected to be ordinarily found. The place where<\/p>\n
      mere physical presence is found may not necessarily be the place<\/p>\n
      where he ordinarily resides.        The acceptable attributes of the<\/p>\n
WPC 31927\/2007                        -9-<\/span><\/p>\n
       expression “resides” in contexts like this are, to make an abode for a<\/p>\n
       considerable time; to dwell permanently or for a length of time; or to<\/p>\n
       have a settled abode for a time etc. It is true that the place of<\/p>\n
       residence at the time of filing of the application under the Act is not<\/p>\n
       decisive to ascertain the place of ordinary residence, as it would be<\/p>\n
       easy to move the minor children from one place to another and from<\/p>\n
       one jurisdiction to another.     The expression “ordinarily resides”<\/p>\n
       connote a regularly settled home and not a place of study where the<\/p>\n
       children are obliged to dwell by force of circumstances or<\/p>\n
       compulsion of parents’ employment.”\n<\/p><\/blockquote>\n
Hence, the place of temporary stay has to be excluded, but the place where<\/p>\n
a regularly settled home is there will satisfy the meaning of the expression<\/p>\n
“ordinarily resides”. The facts of the said case show that the parents were in<\/p>\n
Dubai and the children were brought to Kerala by their mother and<\/p>\n
admitted in a school in Ernakulam District. The husband filed a petition<\/p>\n
under the Guardian and Wards Act before the court at Ernakulam and the<\/p>\n
mother contended that the ordinary residence of the children is in Dubai and<\/p>\n
hence the District Court, Ernakulam has no jurisdiction. In the light of the<\/p>\n
above facts, it was held by this court that it is difficult to hold that the<\/p>\n
ordinary residence of the minor children at the time of filing of the petition<\/p>\n
was at Dubai. In fact, when they were brought back to Kerala, they were<\/p>\n
residing with their maternal grandmother. It is in these circumstances, the<\/p>\n
WPC 31927\/2007                        -10-<\/span><\/p>\n
above conclusion was arrived at by this court.             The main question<\/p>\n
considered by this court was whether a place of temporary stay, however<\/p>\n
long the stay, can be considered for the purpose of considering the meaning<\/p>\n
of the term “residence”. The residence must answer a qualitative as well as<\/p>\n
quantitative test and the two elements of factum at animus must concur.<\/p>\n
Therefore,   that test has to be applied to the facts of this case.         In<\/p>\n
Hareendran Pillai’s case (supra) also, the same principle was reiterated.<\/p>\n
After referring to Section 6 of the Hindu Minority and Guardianship Act<\/p>\n
and the decisions of the Apex Court in Rosy Jacob v. Jacob<\/p>\n
Chakramakkal<\/a> {(1973) 1 SCC 840} and Jajabhai v. Pathankhan {(1970)<\/p>\n
2 SCC 71) and the decision of this court in Chandy v. Mary Baneena<\/p>\n
(1988 (1) KLT 611), their Lordships examined the scope of Section 9 of the<\/p>\n
Guardian and Wards Act. The facts of the said case show that the marriage<\/p>\n
occurred in Alappuzha District and they were also residing after the<\/p>\n
marriage along with the minor, within the jurisdiction of the Family Court,<\/p>\n
Alappuzha. The child was taken away from Alappuzha by the husband to<\/p>\n
Bahrain. Therefore, mere residence of the child at Bahrain could not be<\/p>\n
considered as a factum which will deprive the Alappuzha court of its<\/p>\n
jurisdiction. It is in the above factual situation the said case was decided to<\/p>\n
WPC 31927\/2007                       -11-<\/span><\/p>\n
hold that the Family Court, Alappuzha has got jurisdiction. The facts of the<\/p>\n
present case show that they are totally different. Again, their Lordships in<\/p>\n
the above said decision, stated that “though the father is the natural guardian<\/p>\n
of the minor above five years, on that ground alone he cannot have any<\/p>\n
preferential claim since the paramount consideration is the welfare of the<\/p>\n
minor.” Therefore, the contention raised by the learned counsel for the<\/p>\n
husband that for the purpose of considering the territorial jurisdiction, the<\/p>\n
child should be considered as ordinary resident within the jurisdiction<\/p>\n
where the permanent residence of the father is situated, cannot be accepted.<\/p>\n
      13. It may be mentioned herein that going by Ext.P1, the wife has<\/p>\n
secured custody of her child from the Superior Court of New Jersey. We<\/p>\n
will now consider the principle stated by the Apex Court in Surinder<\/p>\n
Kaur Sandhu’s case (supra).       The facts of the above case shows that the<\/p>\n
parents of the child who were Indian citizens, settled in England after the<\/p>\n
marriage and the child became a British citizen by birth. The child was<\/p>\n
brought to India by the father. Meanwhile, the mother obtained an order<\/p>\n
from a court in England directing her husband to deliver custody of the<\/p>\n
child to her. In the above factual situation, the relevant questions were<\/p>\n
WPC 31927\/2007                       -12-<\/span><\/p>\n
examined. After analysing the detailed facts, it was held in para 10 as<\/p>\n
follows:\n<\/p>\n
             “The modern theory of Conflict of Laws recognises and, in<\/p>\n
      any event, prefers the jurisdiction of the State which has the most<\/p>\n
      intimate contact with the issues arising in the case. Therefore, in<\/p>\n
      matters relating to matrimony and custody, the law of that place<\/p>\n
      must govern which has the closest concern with the well-being of<\/p>\n
      the spouses and the welfare of the offsprings of marriage.<\/p>\n
      Ordinarily, jurisdiction must follow upon functional lines and is<\/p>\n
      not attracted by the operation or creation of fortuitous<\/p>\n
      circumstances such as the circumstance as to where the child,<\/p>\n
      whose custody is in issue, is brought or for the time being lodged.<\/p>\n<\/blockquote>\n
             In the present case the facts that the child is a British<\/p>\n
       citizen and that the matrimonial home of the spouses was in<\/p>\n
       England, establish sufficient contacts or ties with that State in<\/p>\n
       order to make it reasonable and just for the courts of that State to<\/p>\n
       assume jurisdiction to enforce obligations which were incurred<\/p>\n
       therein by the spouses.”<\/p><\/blockquote>\n
      14. Therefore, the principle is well settled that in matters relating to<\/p>\n
matrimony and custody, the law of that place must govern which has the<\/p>\n
closest concern with the well-being of the spouses and the welfare of the<\/p>\n
offsprings of marriage. Learned counsel for the respondent also relied upon<\/p>\n
the observation in the above judgment that “ordinarily, jurisdiction must<\/p>\n
WPC 31927\/2007                       -13-<\/span><\/p>\n
follow upon functional lines and is not attracted by the operation or creation<\/p>\n
of fortuitous circumstances,” and then contended that merely because the<\/p>\n
child was residing along with the mother in U.S.A., the right of the father to<\/p>\n
institute a suit in India seeking custody, is not taken away, as the child is<\/p>\n
presumed to be ordinarily residing with the father, he being the natural<\/p>\n
guardian. We may point out herein that in the above judgment, the Apex<\/p>\n
Court further laid down that Section 6 of the Hindu Minority and<\/p>\n
Guardianship Act cannot supersede the paramount consideration as to what<\/p>\n
is conducive to the welfare of the minor. It has also been held that “it is the<\/p>\n
Court’s duty and function to protect the wife against the burden of litigating<\/p>\n
in an inconvenient forum which she and her husband had left voluntarily.”<\/p>\n
Judged in the light of the above principles, we would like to point out<\/p>\n
herein that the spouses had set up their matrimonial home in U.S.A., the boy<\/p>\n
is a U.S. Citizen as he was born in that country and he holds a U.S.<\/p>\n
Passport, a copy of which has been produced herein as Ext.P4. By merely<\/p>\n
choosing to come back to India after leaving the family at U.S., the father<\/p>\n
cannot claim that the jurisdiction in regard to the dispute regarding custody<\/p>\n
can only be before Indian courts and the U.S. Court has no jurisdiction.<\/p>\n
The following observation made in para 10 of the judgment in Surinder<\/p>\n
WPC 31927\/2007                         -14-<\/span><\/p>\n
Kaur Sandhu’s case (supra) that “the fact that the child is a British citizen<\/p>\n
and that the matrimonial home of the spouses was in England, establish<\/p>\n
sufficient contacts or ties with that State in order to make it reasonable and<\/p>\n
just for the courts of that State to assume jurisdiction to enforce obligations<\/p>\n
which were incurred therein by the spouses”, is apposite to the facts of this<\/p>\n
case. This is not a case where the wife had taken the child out of this<\/p>\n
country for a casual residence or by compulsion as contended by the learned<\/p>\n
counsel for the respondent and the impleading petitioner. Only on two<\/p>\n
occasions she came back to India; first time in November 2003 and later in<\/p>\n
December 2004.        Both were casual visits. Admittedly going by the<\/p>\n
pleadings of the parties, she went back thereafter. On his return to U.S., the<\/p>\n
husband worked there for another 10 months before he came back to India,<\/p>\n
after their separation.\n<\/p>\n
       15. Another argument raised by learned counsel for the respondent<\/p>\n
and the impleading petitioner is that the question of jurisdiction was not<\/p>\n
raised in the pleadings of the petitioner, viz. Ext.P3 and only at a later stage<\/p>\n
after   attending counselling alone, she raised this plea by way of an<\/p>\n
amendment and therefore since the said issue was not raised at the initial<\/p>\n
stage, the objection has to be rejected in toto. We are afraid, the said<\/p>\n
argument cannot be accepted at this point of time, in view of the fact that<\/p>\n
WPC 31927\/2007                         -15-<\/span><\/p>\n
the court below has, by the preliminary judgment, considered the objection<\/p>\n
regarding jurisdiction after allowing her to amend the pleadings. It is<\/p>\n
reported that the amendment was allowed after hearing the objections of the<\/p>\n
respondent also on payment of cost Rs.3,000\/- which was received by the<\/p>\n
husband. The said order has become final. There was no change against the<\/p>\n
order allowing amendment of the pleadings to incorporate the specific<\/p>\n
objection regarding jurisdiction. Further, any question of jurisdiction goes<\/p>\n
to the root of the matter as it affects the very power and authority of the<\/p>\n
court to decide the dispute between the parties. Apart from that, such an<\/p>\n
objection has not been seen raised before the trial court which has therefore<\/p>\n
gone into the dispute regarding jurisdiction in detail in the impugned order.<\/p>\n
      16. It is pointed out by the learned counsel for the respondent that no<\/p>\n
sanctity can be attached to Ext.P1 order passed by the Superior Court of<\/p>\n
New Jersey, as his client was not heard before passing that order. He also<\/p>\n
relied upon the findings rendered by the Family Court in Ext.P8 order, to<\/p>\n
the effect that the said order is not binding on the respondent. Ext.P8 order<\/p>\n
shows that a copy of Ext.P1 order has been produced before the Family<\/p>\n
Court. The Family Court was of the view that the order passed by the<\/p>\n
Superior Court of New Jersey has nothing to do with the present case while<\/p>\n
considering the question of territorial jurisdiction. The main reason for<\/p>\n
WPC 31927\/2007                      -16-<\/span><\/p>\n
coming to the said conclusion is that no notice appears to have been served<\/p>\n
on the husband prior to the passing of the order. We are afraid, the said<\/p>\n
view of the Family Court cannot be said to be correct. Ext.P1 is a copy of<\/p>\n
the order passed by the Superior Court of New Jersey, and the validity of<\/p>\n
the said order cannot be decided by the Family Court at Alappuzha, as the<\/p>\n
said court is not sitting in appeal over it. It was upto the husband to<\/p>\n
challenge it on various grounds available to him including the ground that<\/p>\n
he was not heard. Therefore, the order cannot be ignored as such by the<\/p>\n
Family Court at Alappuzha as is now done. We have referred to Ext.P1<\/p>\n
order of the Superior Court of New Jersey only to show that the wife had<\/p>\n
approached the forum available in U.S. to establish her custody of the child.<\/p>\n
      17. It was vehemently contended by learned counsel for the husband<\/p>\n
that the only forum that can have jurisdiction is the court at Alappuzha,<\/p>\n
since the father has got permanent residence there. It is submitted that the<\/p>\n
father being the natural guardian, the ordinary residence of the child can<\/p>\n
only be presumed to be that of the father.        Learned counsel for the<\/p>\n
petitioner, in answer to the said contention, pointed out that the father is<\/p>\n
now employed in Bangalore and is residing there and therefore, he will be<\/p>\n
presumed to be an ordinary resident of Bangalore and not within the<\/p>\n
jurisdiction of the Alappuzha Court.     Within Alappuzha district he may<\/p>\n
WPC 31927\/2007                       -17-<\/span><\/p>\n
have permanent residence, but the question is whether the same will satisfy<\/p>\n
the ingredients of Section 9 of the Guardian and Wards Act. The Section<\/p>\n
expressly provides that the court having jurisdiction is the court within<\/p>\n
whose jurisdiction the child ordinarily resides. We are of the view that the<\/p>\n
claim of the father for permanent custody under Section 6 of the Hindu<\/p>\n
Minority and Guardianship Act cannot be the true test at all. It is stipulated<\/p>\n
under the proviso to the said Section that the mother is having a legal right<\/p>\n
of custody of a minor who is below the age of five years. The Apex Court<\/p>\n
in Surinder Kaur Sandhu’s case (supra), in para 9 held that Section 6 of<\/p>\n
the Hindu Minority and Guardianship Act, 1956 cannot supersede the<\/p>\n
paramount consideration as to what is conducive to the welfare of the<\/p>\n
minor.     Therefore, the plea that father being the natural guardian, his<\/p>\n
residence permanently at one place is the criteria for deciding the<\/p>\n
jurisdiction, cannot be accepted. Herein, at the time of filing of Ext.P2 by<\/p>\n
the father in 2005, the child was only 2 years and 6 months of age.<\/p>\n
Therefore, even going by the proviso to Section 6, the mother alone was<\/p>\n
entitled to custody of a minor child below the age of five years. If that fact<\/p>\n
is accepted, the mother who was residing in U.S. at that time along with the<\/p>\n
child, is justified in claiming that the Family Court at Alappuzha has no<\/p>\n
jurisdiction to decide the dispute regarding custody raised by the petitioner.<\/p>\n
WPC 31927\/2007                       -18-<\/span><\/p>\n
Further, no part of the cause of action arose within the jurisdiction of<\/p>\n
Family Court, Alappuzha.\n<\/p>\n
      18. The reasoning adopted by the Family Court that the permanent<\/p>\n
residence of the father has to be taken as the ordinary residence of the minor<\/p>\n
for the purpose of deciding jurisdiction of the Family Court at Alappuzha,<\/p>\n
is therefore not correct. The said reasoning is not supported either by the<\/p>\n
statutory provisions    or by the principles stated by the Apex Court in<\/p>\n
Surinder Kaur Sandhu’s case (supra), and by this court in Chandy’s case<\/p>\n
(supra) and Hareendran Pillai’s case (supra). Reliance placed by the<\/p>\n
learned counsel for the respondent on the decision in Ramjilal Yadav’s<\/p>\n
case (supra) is, therefore, not correct. There, the contest for custody of the<\/p>\n
child was between the father and maternal grandfather.           The finding<\/p>\n
regarding jurisdiction of the court was entered into in the peculiar facts of<\/p>\n
the case. This is evident from the finding rendered by the court in the<\/p>\n
following words:\n<\/p>\n
      “But in a case like the present one, it is difficult to accept the<\/p>\n
      proposition that the residence of the maternal grandfather who<\/p>\n
      happened to have just temporary custody of the child should be the<\/p>\n
      place of ordinary residence of the mother.”\n<\/p><\/blockquote>\n
WPC 31927\/2007                       -19-<\/span><\/p>\n<\/blockquote>\n
The facts show that the child was residing along with the mother in the<\/p>\n
permanent residence of the father. But on a temporary visit to the residence<\/p>\n
of the maternal grandfather in Nainital, the mother died and the child was<\/p>\n
retained by the maternal grandfather. It is only in the above circumstances,<\/p>\n
it was held that the place of residence of the father is relevant. The facts of<\/p>\n
the said case are totally different from the facts of this case. But, while<\/p>\n
discussing the provisions of Section 6 of the Hindu Minority and<\/p>\n
Guardianship Act, 1956, the court also observed as follows:<\/p>\n
      “Moreover a mother is supposed to have the custody of a child who<\/p>\n
      has not completed the age of 5 years under Section 6(1) of the Hindu<\/p>\n
      Minority and Guardianship Act, 1956. Therefore, while deciding the<\/p>\n
      question of ordinary residence of the minor so long the child is of 5<\/p>\n
      years of age, it has to be deemed that he is residing with the mother<\/p>\n
      and the residence of the mother would be indicative of the ordinary<\/p>\n
      residence of the child also.”\n<\/p><\/blockquote>\n
This also supports the view taken by us on the facts of this case.<\/p>\n
      For all these reasons, we quash Ext.P8. We hold that the petition<\/p>\n
filed by the father, Ext.P2 seeking to appoint him as the guardian of the<\/p>\n
WPC 31927\/2007                        -20-<\/span><\/p>\n
minor Rishikesh, filed before the Family Court, Alappuzha is not<\/p>\n
maintainable for want of territorial jurisdiction.\n<\/p>\n
     The writ petition is allowed as above. No costs.\n<\/p>\n<\/p>\n
                                            ( P.R.Raman, Judge.)<\/p>\n
                                      (T.R. Ramachandran Nair, Judge.)<\/p>\n
kav\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Ms.Lakshmi Sankar vs Suresh K.Surendranathan on 24 October, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 31927 of 2007(S) 1. MS.LAKSHMI SANKAR, 33 GALLOP LANE, … Petitioner Vs 1. SURESH K.SURENDRANATHAN, C\/O.K.S.NAIR, … Respondent For Petitioner :SMT.K.V.BHADRA KUMARI For Respondent :SRI.S.ANIL KUMAR (CHERTHALA) The Hon’ble MR. Justice P.R.RAMAN The Hon’ble […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-170299","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMs.Lakshmi Sankar vs Suresh K.Surendranathan on 24 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-lakshmi-sankar-vs-suresh-k-surendranathan-on-24-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ms.Lakshmi Sankar vs Suresh K.Surendranathan on 24 October, 2008 - 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