MADHU REJENDRA PRASAD NAIR Vs. SREELATHA BHASKARAN PILLAI

JUDGEMENT

(1.) An order negativing the challenge against the jurisdiction of the Family Court at Kollam to entertain the Original Petition under the Guardian and Wards Act, 1890 (for short, "the Act") is under challenge by the respondent in the Original Petition.

(2.) On 22/08/1987, the since estranged couple who were Indian Nationals got married in accordance with the Hindu religious rites, the community to which they belong, at the Sri Vidhydhiraja NSS Auditorium, Anandavalleswaram, Kollam. Both of them acquired American citizenship. On 10/12/2005, a boy child, Kiran Vidyuth Nair, was born to them. It appears that the relationship between the parties got strained, and on 28/07/2006 the wife came back to India to her native place at Kollam with the child. Though the husband / appellant would contend that prior to that he had instituted a custody petition regarding the child before the Family Court in the State of New York, the wife would contend that she was then not aware of the proceedings. Anyhow, it is not in dispute that there were no prohibitory or custody orders from any Court at the time when the wife flew to India with the child. It is also undisputed that the wife came to India with the child with the permission of the husband, though according to him it was on an understanding that she would return to the United States on 03/11/2006. Thereafter on 20/11/2006, the husband instituted proceedings before the Family Court, New York, for custody of the child. On 18/05/2007 the Family Court at New York passed an order for joint custody. While so, on 19/10/2007 the wife filed O. P. No. 620 of 2007 before the Family Court at Kollam, for divorce. On 10/11/2008 the divorce petition was decreed ex parte. On 03/03/2009, the wife instituted the present proceedings, viz., O.P(G&W) No. 257 of 2009 before the Family Court, Kollam, for guardianship of the child. On 06/03/2009 an interim order was passed in the Original Petition restraining the husband from forcefully taking away the ward from the custody of the wife. On 13/03/2009, the husband, stated to be on getting information regarding the visit of the wife to the United States, moved for a Writ of Habeas Corpus before the Family Court at New York, wherein an order was passed on 13/03/2009 to the effect that the wife shall not leave the United States of America with the child. It is contended by the respondent - wife that on or around the said date, though she had landed at the Chicago airport did not or rather could not go out of the airport because of intervention by FBI agents and came back to India. On 26/10/2009, the Family Court at New York granted sole custody of the child to the father, with visitation rights to the wife. Thereafter the husband approached this Court in W.P (Crl.) No. 247 of 2010 for the issuance of a writ of Habeas Corpus alleging that in spite of the orders passed by the Family Court at New York, the child is under the illegal detention of the wife. This Court taking note of the fact that O.P.(G&W) No. 257 of 2009 is pending before the Family Court, Kollam, relegated the parties to the said Court. The contention of the husband regarding lack of jurisdiction of the Family Court, Kollam to entertain the Guardian and Wards proceedings was left open to be urged in the said proceeding. The Family Court at Kollam has pursuant thereto passed the impugned order holding that it has jurisdiction to entertain the Original Petition.

(3.) Heard Shri. R. Sanjith, learned counsel for the appellant - husband and learned Senior Counsel Smt. Sumathi Dandapani for the respondent - wife.