CHANDY Vs. MARY BANEENA

JUDGEMENT

(1.) Mridula and Mithun are two minor children for whose guardianship their father and mother are fighting now. Both the parents are employed in Dubai, though they hail from Ernakulam District. Mridula is aged seven and Mithun is aged four. For reasons better known to the spouses (those reasons are irrelevant in this revision) their relationship has been veritably broken and the spouses are active in exchanging invectives at each other. The mother (first respondent) came to Kerala with the children in February 1987 and admitted them in a school at Eloor (Ernakulam District) for their education. The father (the petitioner) filed a petition in the District Court, Ernakulam, under the provisions of Guardians and Wards Act, 1890 (for short 'the Act') to appoint him (or to declare him) as the guardian of the children. The mother who stoutly resisted the petition contended, inter alia, that the ordinary residence of the children is in Dubai and hence the District Court, Ernakulam, has no jurisdiction. She wanted the court to decide the question of jurisdiction "before any other matter is considered in the original petition". The Additional District Judge who heard arguments found that the ordinary residence of the children is in Dubai and hence District Court, Ernakulam, has no jurisdiction to entertain the petition. According to the learned District Judge, the stay of the children with their maternal grandmother (second respondent) is only "a transient stay", whereas their permanent residence is actually in Dubai. On this finding the lower court rejected the petition filed by the petitioner. This revision is in challenge of the said order.

(2.) Learned counsel for the petitioner contended that the court below fell in error in deciding that the District Court, Ernakulam, has no jurisdiction and that the children are permanently residing in Dubai. When question of jurisdiction is required to be decided as a preliminary issue, it could be decided either on the averments made in the petition or on the admitted facts, or on other acceptable materials available in this case. Here there is no admission that the children are ordinarily residing in Ernakulam District. So, the issue regarding jurisdiction has to be decided not only on averments but on other materials produced by the parties as well.

(3.) Petitioner, has averred in Para.23 of the petition (which was filed on 3-6-1982) that the minor children "ordinarily reside with the petitioner at Thulatmattathil House, Maneed Village. Ernakulam District". The second respondent is residing in a flat in the FACT township at Eloor in Ernakulam District. It is admitted that the mother of the children reached Kerala by February, 1987 and thereafter the children have been residing with the second respondent in the flat attached to the FACT township as on the date of filing of the petition. The mother of the children had executed an instrument of power of attorney on 14-6-1987 appointing the second respondent as her attorney. The mother has stated in the said instrument that the custody and control of the children are entrusted to the second respondent and she is authorised to educate the children in India and also to present necessary petitions under the Act before District Court, Ernakulam, or any other court for obtaining "legal sanction for the custody of the minor children". Certain other broad facts which could also be taken note of in this connection are that neither the children nor their parents have acquired citizenship in Dubai nor have they abandoned their Indian citizenship. None of them has expressed any intention to settle down in Dubai and neither of them has a building of bis or her own in Dubai. It was submitted that they are temporarily employed in some companies in Dubai. There is no dispute that the petitioner's family house is situated at Maneed village in Ernakulam District.