SHAIJU P. Vs. MANJUSHA M.

JUDGEMENT

(1.) Challenge in the appeal is against the order passed by the Family Court, Thiruvananthapuram in I.A. No. 1498/2013 in O.P. No. 623/2013, dated 13.8.2014. Parties to the appeal are husband and wife. A minor child namely 'Theertha Shaiju' was born out of the wedlock on 29.6.2009. The marital relationship remain strained. The petitioner herein filed O.P. No. 623/2013 before the Family Court seeking custody of the minor child. The respondent entered appearance and filed I.A. No. 1498/2013 raising dispute with respect to jurisdiction of that court to entertain the petition and for considering the question of maintainability based on territorial jurisdiction as a preliminary issue. Along with the original petition the appellant filed I.A. No. 1030/2013 seeking interim custody of the child. The Family Court ordered arrangement for interim custody of the child with the appellant. The appellant had also approached this court on an earlier occasion by filing O.P.(FC)No.317/2014 seeking early disposal of the interim applications. This Court by order dated 24.6.2014 directed the Family Court to dispose of the above applications within a time limit.

(2.) The Family Court considered I.A. No. 1498/2013 and decided the question of territorial jurisdiction, as contemplated under Sec. 9 of the Guardian and Wards Act. It was found that the respondent herein is a native of Uttar Pradesh and the marriage took place at Thiruvananthapuram. After the marriage, she was residing at the matrimonial home at Thiruvananthapuram. But it is found that the respondent had shifted her residence along with the minor child to Rajakumari at Idukki since she got a job there as a teacher, in February, 2009. Consequently her parents also shifted their residence from Uttar Pradesh to Kerala. The Family Court found that the respondent was residing at Idukki from 2009 onwards and the child was also with the respondent. Therefore, the "ordinary place of residence" of the respondent and the child is at Idukki from the day on which she joined service as a teacher in Rajakumari at Idukki. Hence the Family Court found that the 'ordinary place of residence' of the child is at Idukki. Therefore it is found that the Family Court at Idukki alone has jurisdiction to entertain the original petition. Accordingly it was ordered to return the original petition under Order VII Rule 10(2) of the Code of Civil Procedure for presenting before the proper court.

(3.) Contention of the appellant is that the Family Court went highly erred in finding that the 'ordinary place of residence' of the child is at Idukki. It is contended that since the matrimonial home of the respondent is at Thiruvananthapuram and since the child was born at Thiruvananthapuram and since the parties were residing together at Thiruvananthapuram, the place of ' ordinary residence' of the child need to be considered as Thiruvananthapuram. It is also contended that the respondent became compelled to be stayed at Rajakumari in Idukki only in connection with her employment and such temporary residence cannot be taken as the ordinary place of residence. It is contended that, during pendency of the original petition before the Family Court, the respondent got transfer from Idukki to Thiruvananthapuram and now she is employed as a teacher in GVHS for Girls, Pettah, Thiruvananthapuram, with effect from 27.6.2013. Upon such transfer the respondent and the minor child are now living at Manacaud, Thiruvananthapuram and the child is studying in UKG at Chinmaya, Manacaud, which is within the territorial jurisdiction of the Family Court, Thiruvananthapuram, is the contention.