V VASU Vs. MURALIDHARAN

JUDGEMENT

(1.) The maternal grandparents and the maternal uncle of a minor female child aged 10 years are the appellants who impugn the order passed by the Family Court, Palakkad in O. P. No. 1302 of 2006 on the question of jurisdiction as a preliminary point, as requested for, holding that the said Family Court has jurisdiction to entertain the petition under the Guardians and Wards Act, 1890. The matter arises in the following background.

(2.) The father of the child who is an ordinary resident of Palakkad District preferred O. P. No. 1302 of 2006 before the Family Court, Palakkad under Section 9 of the Guardians and Wards Act for getting custody of the minor child born in the wedlock between him and one Geeta. The marriage of Geeta with the first respondent was solemnised at Vishweshwara Temple, Palakkad on l4-11-1996. They lived together in the matrimonial home and on 10-9-1997, Geeta gave birth to a female child. Since, at that time of parents of Geeta were at Pune, having settled there, she went to her parental home at Pune where the delivery took place. Subsequently, she returned to Vandazhi along with her husband and child and at Vandazhi she committed suicide in the year 1999. The suicide was alleged to be a dowry death and a criminal case is pending against the first respondent. However, Annexure-I produced by the first respondent along with the counter-affidavit shows that there was an agreement between the parties dated 21-8-2005 whereby it was agreed by the first respondent that temporary custody of the minor child could be given to the maternal grandparents. The child was thus with her grandparents at Pune and continuing her studies. There is an allegation that in terms of the compromise, the criminal case was not withdrawn. However, it is not a subject-matter to be considered in this appeal. The first respondent/father preferred the present petition before the Family Court, as stated earlier, for custody of the minor child. The respondents in the Original Petition raised a contention that the Family Court, Palakkad has no jurisdiction to consider the petition as the minor does not reside within the jurisdiction of that Court. Both sides did not insist for adducing evidence with regard to the said issue. Hence, the Court below placed reliance on the pleadings and after hearing the parties decided the issue holding that the Court has jurisdiction to decide the petition which is challenged in this appeal.

(3.) It is beyond dispute that the marriage between the first respondent and the said Geeta, the mother of the minor child, was solemnised at Palakkad, that there was an agreement between, the parties as evidenced by Annexure I and that the child is now with her maternal grand-parents and maternal uncle. The Family Court held that since the father is the natural guardian and he is an ordinary resident of Vandazhi, Palakkad District, the said Court has jurisdiction in the matter and placed reliance on the decision of a Division Bench of this Court reported in Prabhu v. Rajani, 2007 2 KerLT 38 (Case No. 53). Though the learned Counsel appearing for the respondents in this appeal would support the order, learned Counsel for the appellants would contend that the said decision has no application to the facts of this case. According to them, that was a case where both the parents were alive whereas in this case, the mother of the child died in the year 1999. Learned Counsel for the respondents also placed reliance on yet another decision of this Court reported in Sarada Nayar v. Vayankara Amma, 1957 AIR(Ker) 158.