HAREENDRAN PILLAI Vs. PUSHPALATHA

JUDGEMENT

(1.) This appeal arised out of an order passed by the Family Court, Alappuzha under Section 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956 on a petition filed by the mother for the custody of a minor aged below five years. Contention was raised before the Family Court that the petition is not maintenable since the minor is not an "ordinary resident" of the locality so as to confer the jurisdiction on the Family Court, Alappuzha. The Family Court rejected the preliminary objection holding that the permanent residence of both the parents is within its jurisdiction and hence it should be taken that the minor's ordinarily residence is also the same. Further it was noticed that the minor was brought back from Bahrain to the place of residence of the parents within Alappuzha district and hence would confer jurisdiction on the Family Court, Alappuzha to decide the custody of the minor at the instance of the mother. Aggrieved by the order of the Family Court this appeal has been preferred.

(2.) Sri. K. Ramakumar, counsel appearing for the appellant, submitted that the Family Court has committed an error in holding that the petition is maintainable. Counsel submitted that permanent residence of the child is at Bahrain. Counsel submitted that the child was born at Bahrain and is not an ordinary resident within the jurisdiction of the Family Court, Alappuzha so as to confer jurisdiction on it. Counsel placed reliance on the decision of the apex court in Election Commission of India v. Manmohan Singh, 2000 AIR(SC) 231 so as to explain the meaning of the word "ordinary resident". Counsel also placed reliance on the decision of a learned single Judge of this Court in Anitha Abraham v. Jacob Oommen, 2003 1 KerLT 417 in support of his contention.

(3.) Shri G. Sreekumar, counsel appearing for the respondent submitted that the Family Court at Alappuzha has got jurisdiction to entertain an application filed by the mother for the custody of the minor. Counsel submitted that marriage between the parties was solemnized at Kumarapuram Village in Alappuzha district and the child was born while they were at Bahrain. Child was brought back to Alappuzha art the intervention of the Embassy of India at Bahrain. Counsel submitted that the child was in the custody of the mother while at Alappuzha but was taken away by the father on 25-02-2005. Counsel submitted that the cause of action for filing the petition for the custody of the child arose at Kumarapuram, a place from where the child was removed from the custody of the mother and that place falls within the territorial jurisdiction of Family Court, Alappuzha. In support of the contention counsel placed reliance on the decision in Chandy v. Mary Beaneena,1998 1 KerLT 611 wherein the father of the minor child preferred an application under Section 25 of the Guardian and Wards Act, 1890 which states that if a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of opinion of his guardian, may make an order for his return.