SONI GERRY Vs. GERRY DOUGLAS

JUDGEMENT

(1.) UNDER challenge in this appeal is the order passed by the Family Court, Thiruvananthapuram, dismissing an application filed by the petitioner mother for interim custody of two minor children, by name, Sonam Gerry and Piyush Gerry. The learned Family Court has, under the impugned order, upheld the contention raised by the respondent that the Family Court lacks in territorial jurisdiction to entertain the original petition filed by the mother. The learned Family Court would also find under the impugned order that the present I.A. seeking interim custody filed by the mother is not maintainable in view of the order passed by the Honourable Supreme Court in SLP (Crl.) Nos.6844 - 6845 of 2010 dated 18.10.2010. The learned Family Court formulated two points for decision on the basis of the contentions raised by the respondent, the father of the minor children. They were: (1) Whether the court has territorial jurisdiction to entertain this petition? (2) Whether the petitioner/mother is entitled to get the interim custody of the two minor children from the respondent/father?

(2.) THE evidence adduced by the parties consisted of Exts.A1 to A7 on the side of the mother and Exts.B1 to B6 on the side of the father. Appreciating the evidence which came on record, particularly Exts.B1 to B6, the learned Family Court found that the two minors were pursuing their studies in Indian Community School, Kuwait and hence it could not be said that they are ordinarily residing within the limits of Thiruvananthapuram Family Court. Reliance was placed by the learned Judge in this context on Section 9(1) of the Guardians and Wards Act which provides that the court having jurisdiction to entertain application with respect to guardianship of the person of the minor shall be the court having jurisdiction in the place where the minor ordinary resides. Thus, point No.1 was answered against the petitioner. Thereafter, the learned Family Court has, under the impugned order, proceeded to consider the implications of the order passed by the Supreme Court in SLP (Crl.) Nos.6844 - 6845 of 2010 and found that by virtue of that order the petitioner is foreclosed from approaching the Family Court.

(3.) WE have given our anxious consideration to the rival submissions addressed at the Bar. It is very clear to our mind that the view of the Family Court in the impugned order that the order passed by the Supreme Court in SLP (Crl.) Nos. 6844 - 6845 of 2010 would stand in the way of the petitioner approaching the Family Court for interim custody of her minor children is erroneous. According to us, it is clear, on a reading of that order, that after making an arrangement for the temporary custody of the minors for a particular specified period, the Supreme Court has given liberty to the parties to approach the Family Court for further reliefs.