N.R. PRASAD Vs. PRAMEELA PRATYUSHA

JUDGEMENT

(1.) UNDER challenge in this Writ Petition filed under Article 227 of the Constitution by the petitioner who is the husband of the respondent is Ext. P2 order passed by the Family Court, Palakkad in OP No. 45/10 filed before that court by the first respondent for the custody of the minor child of the parties by name Hritik. A preliminary question was raised by the petitioner objecting to the territorial jurisdiction of the Family Court, Palakkad. Under the impugned order the Family Court noticed that the respondent, the petitioner before that court is ordinarily residing within the jurisdiction of the Palakkad court and following the judgments of this Court in Vasu v. Muralidharan ( : 2009 (1) KLT 480) and Prabhu v. Rajani (2007 (2) KLT SN 53) has taken the view that as the parents of the minor are living separate, the place of ordinary residence of the minor will be the place of ordinary residence of either of its parents. In this case as the mother of the minor is residing at Palakkad in her parental home, the court concluded that the Palakkad court is having territorial jurisdiction and on that basis repelled the contention raised by the petitioner that it is only the Family Court at Mumbai which can have jurisdiction as the child has been ordinarily residing at Mumbai for years. We have heard the submissions of Sri. T. Krishnanunni, the learned senior counsel for the petitioner and Sri. Binoy Vasudevan, the learned counsel for the respondent. The learned senior counsel in his submissions would advert to a number of judicial precedents including the two judgments relied on by the court below. Sri. Krishnanunni submitted that the judgments relied on by the court below to take the view that as the mother of the minor child is ordinarily residing at Palakkad, the Palakkad court will have jurisdiction notwithstanding the actual fact that the child has been residing at Mumbai for several years now, requires re -consideration.

(2.) SRI . Binoy Vasudevan would submit that the judgments relied on by the court below do not require any re -consideration as it is only logical that when the parents of the child are living separately the child should be presumed to be residing along with either of the parents. Having given our anxious consideration to the rival submissions addressed at the Bar, we feel that the issue whether the Palakkad court has jurisdiction to entertain and adjudicate the OP filed by the respondent for custody of the minor child requires re -consideration in the light of a recent judgment of a Division Bench of this Court in Pramod Vidyandhar Panicker v. Bindu Pramod Panicker ( : 2013 (1) KLT 332) authored by one among us [PCK (J)]. In that decision this Court has analysed the case law pertaining to the subject and held that the proposition laid down in Vasu v. Muralidharan (cited supra) and in Prabhu v. Rajani (cited supra) need not apply to all cases where the spouses are living separately and the custody of the minor is with a particular spouse. We are of the view that the issue should be re -considered in the light of the above judgment. Accordingly, we set aside Ext. P2 and remit the issue of jurisdiction in OP. 45/10 back to the Family Court, Palakkad. The Family Court is directed to take a fresh decision taking into account the ratio emerging from the various decisions which may be cited at the Bar including the ratio in the judgment of the Division Bench of this Court in Pramod Vidyandhar Panicker v. Bindu Pramod Panicker (cited supra). The court below is directed to take a fresh decision after hearing both sides at the earliest and at any rate within six weeks of receiving a copy of this judgment.