T J CHANDY Vs. MARY BANEENA & ANOTHER

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 a 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 grand-mother (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.

(3.) 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.