AYEESHA M TORGAL Vs. B PRADEEP MUTHUKUMAR

JUDGEMENT

(1.) This appeal is filed challenging the order passed by the Family Court dismissing the petition filed tinder Section 25 of the Guardian and Wards Act, 1890 (for short 'Act of 1890') on the ground it has no territorial jurisdiction to entertain the petition. The appellant- Smt. Ayeesha M. Torgal was married to the respondent Sri B. Sri. B. Pradeep Muthukumar on 5th February, 2010 as per Hindu rites, their marriage was registered under the Special Marriage Act on 30.2.2009 before wedding ceremony. A male child was born to them on 24.03.2011 at Statement, Pierre hospital, Brussels, Belgium. After the birth of the child differences arose between the couple. The respondent initiated divorce proceedings in the Court of 1st instance of Belgium Brussels. Petitioner entered appearance. An interim order came to be passed on 31.01.2012 restraining the appellant from removing the child from Brussels pending disposal of the divorce proceedings. Ultimately divorce petition was allowed. On 9.2.2012 petitioner left Belgium. On her return to India she presented this petition for declaring her as guardian of her minor son. After service of notice respondent filed statement objections contesting the claim. He contended that as the child was born at Belgium and was residing at Belgium before the appellant left Belgium and the child continues to reside in Belgium, Court of Bangalore has no territorial jurisdiction to entertain the petition.

(2.) Both the parties have addressed arguments, relied upon several judgments as well statutory provisions. On consideration of the aforesaid material, the Family Court has held that the child is not residing within the jurisdiction of the Family Court it has no jurisdiction to entertain the petition. Accordingly the petition came to be dismissed. Aggrieved by the said order the present appeal is filed.

(3.) Sri Ashok Patil, learned Counsel for the appellant assailing the impugned order contends that though Section 9 of Act of 1890 provides the District Court having jurisdiction where the minor ordinarily resides has to be read with Section 6(a) of the Hindu Minority and Guardianship Act, 1956 which provides that the custody of minor child not completed the age of 5 years ordinarily with the mother and therefore he submits as the mother is residing within the jurisdiction of the Family Court, it has jurisdiction to entertain the petition. He also relied upon the judgment of this Court in the case of K.C. Sashidhar vs Roopa reported in , : ILR 1992 Kar. 2791 where the word "originally resides" came for interpretation.