S PRABHU Vs. RAJANI R

JUDGEMENT

(1.) The appellant and the petitioner is one and the same. He will be described in the judgment as the husband. He got married with the respondent in the appeal, who will be hereinafter described as the wife, at Bodinaikannur in Tamil Nadu. It is also common case that both of them were residing in Tamil Nadu until recently till June 2005. Minor Rishiraj was born to them while they were residing in Tamil Nadu on 1-11-1999 at Bodinayakannur.

(2.) The relationship between the two got strained. After that the wife came to Ernakulam when the husband had an intention to go abroad. According to her she was taken by him to her parents in Ernakulam. But the husband later dropped the idea to go abroad and remained in Tamil Nadu and the wife in Ernakulam along with her parents, who were residing along with her brother. Accordingly as she continued residence at Ernakulam, she admitted the minor child in a school in Tripunithura nearby her residence on 8-5-2006 when the academic year 2005-06 commenced. According to her, the child was taken from the school by the husband on 8-11-2005. Therefore, she filed O.P.No. 1295/2005 invoking Section 25 of the Guardian and Wards Act before the Family Court, Ernkaulam seeking to appoint her the guardian of the minor child and seeking interim custody of the child. There were directions to produce the child. But those directions were not complied with by the husband. Finally, the direction was challenged before this Court by the husband. The child was produced by the husband before this Court and this Court directed the child to be taken before the Family Court. The Family Court passed an order giving custody of the child to the wife. That was on 13-3-2006. In the meantime the case before the Family Court was set ex parte against the husband. The order was put in execution and there was an order on the execution side handing over the child to the custody of the wife. It was thus the child came into the custody of the wife on 13-3-2006. That custody is continuing even now. Faced with the situation the husband moved to set aside the ex parte order. It was allowed on 10-4-2006.

(3.) The contention of the husband was that Family Court, Ernakulam did not have jurisdiction as the ordinary residence of the child has to be looked into for the jurisdiction purpose in terms of Section 9 of the Guardian and Wards Act, 1890. That the ordinary residence of the child was in Tamil Nadu as the couple were living in Tamil Nadu and the ordinary resident of the husband is in Tamil Nadu. But the jurisdiction aspect is answered against the husband. That order is impugned in the Mat Appeal. There was also an order of interim custody of the child in favour of the wife. It is under challenge in the writ petition. Therefore, we have to consider the issue regarding the jurisdictional aspect.