PRAMOD VIDYANDHAR PANICKER Vs. BINDU PRAMOD PANICKER

JUDGEMENT

(1.) This original petition under Article 227 is directed against Ext. P5 order passed by the Family Court, Ernakulam holding that Ext. P1 Original Petition (O.P. No. 1254/2012) on the files of that court filed by respondents 1 and 2 is maintainable in law before that court. Ext. P1 original petition was filed under Section 7 of the Guardian & Wards Act of 1890 read with Section 7 of the Family Courts Act 1984 for a declaration that the 2nd respondent--grand mother of a minor child Jhanvi Pramod Panikkar, the daughter of the petitioner and the first respondent, is the Guardian of the person of the above said minor. According to Ext. P1, the first respondent, the mother of the child, is presently under treatment at Life Care Clinic at Palarivattom within the territorial limits of the Family Court, Ernakulam. She is being treated for Hypoxic ischemic brain injury sustained as a result of near hanging. As the first respondent is immobilised, bed ridden and not in a position to sign or verify the petition, she is represented by the 2nd respondent, her mother as next friend. It is alleged that the present state of the first respondent is the result of the attempt made by the petitioner and his parents to murder the first respondent. It is also alleged that the petitioner failed to give proper care and treatment to the first respondent and hence the first respondent was brought from Nasik and admitted at Brain and Spine Hospital at Vaikkom. From there she was discharged and shifted to Life Care Clinic at Palarivattom. The Doctor who treated the first respondent at Vaikkom is visiting the Palarivattom clinic as a consultant psychiatrist. The 2nd respondent is always by the side of the first respondent giving her constant care and treatment. She is assisted by her parents in the matter. The first respondent is slowly gaining recovery and there is good response to treatment. The Doctor advised that the patient requires maximum sensory and emotional stimulation to her brain for her fast recovery for which presence of her own child will be very useful. It is then alleged that the child is presently under the care of one Bindu at Mumbai who is a distant relative of the petitioner herein. The parents of the petitioner herein are allegedly a aged and totally incapable of looking after the child. They are not interested in looking after the child at all. The petitioner has no time to take care of her child. The present residence of the child in such an atmosphere will hamper the growth of the child and will retard her personality. Various requests by the first respondent for getting the custody of the minor child were not heeded to by the petitioner and hence Ext. P1 is filed. The petitioner entered appearance and filed preliminary objections. A separate application seeking exemption from producing the child was also filed. The contention raised in the preliminary objection is that the Family Court, Ernakulam lacks in jurisdiction to entertain Ext. P1 original petition as the child does not ordinarily reside within the limits of that court. The child has been residing ever since its birth at Mumbai. The child is under care and protection of the petitioner and his parents and one maid servant also has been employed to look after the child. The allegation that custody of the child is entrusted to Bindu, a distant relative of the petitioner, herein is denied. Bindu resides very close to the petitioner's house and on certain occasions when the petitioner and his parents were in the hospital only, the custody of the child was entrusted to Bindu for a very short while. The child is healthy and happy under the protection of the petitioner. The Family Court at Ernakulam has no jurisdiction over Ext. P1 and in the preliminary objection the allegations regarding the harassment, cruelty, attempt to murder etc. are stoutly denied, raising the preliminary issue as to whether the original petition is maintainable for want of territorial jurisdiction of the Family Court, Ernakulam.

(2.) By Ext. P5, it is held that the Family Court has jurisdiction. To come to such a conclusion, the learned court has placed reliance on the decisions such as Ganrav Nagpal v. Sumidha Nagpal,2009 KHC 4035, Vasu v. Muraleedharan, 2009 1 KerLT 480. The learned court has proceeded to distinguish the judgment in Chandy v. Mary Baneena and Himanshu Mahajan v. Rashu Mahjan and others, 2008 AIR(HP) 38 which were relied on by the petitioner herein.

(3.) Ext. P5 is challenged on various grounds and we have heard the submissions of Sri Martin G. Thottan learned counsel for the petitioner and those of Sri. K. Shaj learned counsel for the respondents. Upon the conclusion of the arguments, as we felt that it is necessary to have an idea as to the present physical and mental condition of the first respondent, we deputed Advocate Latheesh Sebastian as commissioner to visit her and to file a report. The report submitted by the commissioner is very short. The essentials of the report submitted by the commissioner is as follows;