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2012 DIGILAW 4456 (MAD)

Muthuselvi Kandasamy v. Muthukrishnan Subbiah

2012-10-29

S.PALANIVELU

body2012
Judgment 1. The following are the allegations contained in the application filed by the wife. 2. The respondent is the husband. The petitioner is the wife. The allegations contained in the main G.W.O.P are denied. The entire allegations in the application are false and concocted and created for the purpose of getting favourable jurisdiction. Earlier, G.W.O.P.No.131 of 2008 was filed by the respondent. However, it was dismissed on 30.10.2009 as he filed another petition to return the original petition on the ground of jurisdiction. The petitioner gave birth to two children in U.S.A, who are the citizens of U.S.A by birth and then the petitioner has come to India. He filed three cases before the Sub-Court, Thoothukudi, one in H.M.P.NO.111/2008 for divorce and another one G.W.O.P.No.131 of 2008 for directing this petitioner to give custody of the two children. The petitioner and her family members never stayed within the jurisdiction of the Sub-Court, Thoothukudi. They also never stayed in the address found place in the G.W.O.P Petition. This Court has no juridiction to entertain the main application since the petitioner and his family members never ordinarily reside in the Court's jurisdiction. Hence the original petition may be returned to the petitioner to present the same before the proper forum, which has the jurisdiction. 3. In the counter filed by the respondent/husband, it is stated that this Court has got jurisdiction to try the case. The petitioner filed application in I.A.No.111 of 2008 in H.M.O.P.No.80 of 2010, on the file of the Sub-Court, Kovilpatti seeking permanent alimony and in that I.A, she has contended that her two minor daughters are studying in Vikasa School, Tuticorin, which was also admitted in the enquiry conducted by the police on her complaint. Hence, it is very clear that the place of residence of minors is Door No.1E/1A, Bryant Nagar 3rd street, Tuticorin which is within the jurisdiction of Sub-Court, Thoothukudi. 4. The law is well-settled that paramount consideration for Court while exercising its powers paramount consideration, is the welfare of minor and jurisidiction of the Court is determined by "Ordinary residence" of minors under the Guardian and Wards Act. Therefore, it is clear that the petition has been filed without application of mind and in misconception of law. 5(a). 4. The law is well-settled that paramount consideration for Court while exercising its powers paramount consideration, is the welfare of minor and jurisidiction of the Court is determined by "Ordinary residence" of minors under the Guardian and Wards Act. Therefore, it is clear that the petition has been filed without application of mind and in misconception of law. 5(a). By orders of this Court, the petitioner has not produced the minor children before this Court and in utter disregard of the Court's order, she has filed an application questioning the juridiction of this Court. It is abuse of process of law. There is no cause of action. Hence, the petition may be dismissed. 6. The learned Principal District Judge, Thoothukudi after hearing both parties dismissed the application by observing that by the scrutiny of the facts and following the well-settled principles established that the children are ordinarily residing within the jurisdiction of the Court and hence this Court has got jurisdiction to try the case. Challenging the said order, the petitioner/wife is before this Court with this revision. 7. The point for consideration in this revision is: Whether the Principal District Court, Thoothukudi has got jurisdiction to try the case? Point: 8. The marriage of both the parties was performed on 22.08.1999 in ASKR Kalyana Mandapam, Thoothukudi and the same was registered by the Registrar of Marriages, Thoothukudi on 25.08.1999. Both of them left for USA on 06.09.1999 and since then, they were leading a happy married life. The respondent is working as a Software Engineer in U.S.A. The first child Sudhiksha was born on 09.10.2000 in Portland at Gregon, USA and the same is evident from the copy of the certificate live birth of the State of California in County of Santa Clara. The second child by name Lakshika was born on 11.2.2002 and the same is evident by a copy of Certificate of live birth of State of California in County of Santa Clara. After the birth of the first child, it is alleged in the G.W.O.P. that she started behaving differently and rudely and she was bent up on coming to India to live with her parents and sisters and made a trip to India on 26.11.2000 and stayed in Tuticorin inspite of petitioner's resistance and dislike. However difference of opinion arose between them and both of them are living seaprately from 24.04.2002. However difference of opinion arose between them and both of them are living seaprately from 24.04.2002. Both the children are admittedly US citizens by virtue of birth. Both spouses are green card holders during the relievant period. The challenge of the petitioner on the competency of the Court against this, petition under Section 9 of the Guardian and Wards Act is that the court has no jurisdiction to try the case since both the minor children are citizens of U.S.A and even though for studies they are here, it cannot be concluded that they are ordinarily residing in India within the jurisdiction of this Court and the petition filed by this respondent has to be returned to him for presentation before proper court. 9. Contending contra, the learned Senior Counsel Mr. K. Srinivasan would submit that as per the well-settled principles of law in the like matters, interest of the spouses need not be taken into consideration but the interest and welfare of the children have to be taken note of by the Court; that minor children are residing in Thoothukudi and it is categorically stated by the petitioner that she is a permanent resident of Thoothukudi and merely because they are citizens of USA, it will not confer jurisdiction in any of the court of USA and in this regard it has to be held that the Principal District Court, Thoothukudi has got every jurisdiction to try the case and that there is no justification to set aside the orders passed by the learned Principal District Court, Thoothukudi. 10. For better appreciation of the facts in issue, extracion of Section 9 of theGuardian and Wards Act is necessary and it reads as under: "9. Court having jurisdiction to entertain application:--(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction." 11. In the above said provision, the term "Ordinarly resides" assumes much importance and that the Court has to find out the truth in the allegations and then only the issue can be settled. In the main petition, the respondent address has been mentioned as Door.No.1E/1A, Bryant Nagar 3rd street, Tuticorin. It is also stated that in the application for interim alimony, filed by the petitioner before the Sub-Court, Kovilpatti she has mentioned the same address as she is permanently residing there. It is categorically contended by the petitioner that from 21.5.2008, the children are in Thoothukudi and she got admission for her minor children in Vikasa School at Thoothukudi. The Guardian O.P was filed in the year 2008 and till now the minors are residing in the same address with the respondent. Hence it has become their address. 12. In this case, it has to be seen that the paramount interest and welfare of the children must be considered and not the interest of the parents 13. The learned counsel for the petitioner placed reliance upon a Full Bench Judgment of the Honourable Supreme Court made in W.P(Crl)No.112 of 2007, dated 17.11.2009 in which their Lordships have taken up the discussion with reference to earlier decision of the Supreme Court and specific events in the earlier case. The following are the cases considered and referred to by the Honourable Supreme Court. The facts in the are abovesaid case are that both the spouses were residing in U.S.A. In the month of July 2003, the New York State Supreme Court passed a decree of divorce, decided on merits and an order was also passed regarding the custody of minor child Adhitya. The facts in the are abovesaid case are that both the spouses were residing in U.S.A. In the month of July 2003, the New York State Supreme Court passed a decree of divorce, decided on merits and an order was also passed regarding the custody of minor child Adhitya. The court granted joint custody of the child to the petitioner and respondent. However they came to India with the minor son. 14. In the above said decision, the case reported in (1984) 3 SCC 698 has been referred wherein it is observed as follows: "The modern theory of confilct of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home." 15. In another case reported in (1987) 1 SCc 42 in Re H(infants)(1996 1 AIIER 886), the court of appeal in England had ocasion to consider a somewhat similar question and following are the observations made in another case referred to by Their Lordships in which the following is the operative portion which reads as under: The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do advantage by his wrongdoing. The Courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child." 10.) With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the Courts in situation such as this" 16. In the case of Dhanwanti Joshi V.Madhav Unde equal to (1998) 1 SCC 112 , the Apex Court has defined the term "ordinary resides". The following is the relevant portion: "Again the summary jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded that it would be better for the child that those merits should be investigated in a court his native country on the expectation that an early decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed. Alternatively, the said court might think of conducting an elaborate inquiry on merits and have regard to the other facts of the case and the time that has lapsed after the removal of the child and consider if it would be in the interests of the child not to have it returned to the country from which it had been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interests of the child(See Rayden and Jackson, 15th Edition., 1988 PP. 1477-79; Bromley, Family Law, 7th Edition., 1987) In R.(minors)(Wardship jurisdiction), Re((1981 2 FLR 416 (CA)) it has been firmlyheld that the concept of forum conveniens has no place in wardship jurisdiction." 17. 1477-79; Bromley, Family Law, 7th Edition., 1987) In R.(minors)(Wardship jurisdiction), Re((1981 2 FLR 416 (CA)) it has been firmlyheld that the concept of forum conveniens has no place in wardship jurisdiction." 17. In the above said case, as per the observation of the Supreme Court in para 18 of the judgment that in view of the fact that child had lived with his mother in India for nearly 12 years, this Court held that it would not exercise a summary jurisdiction to return the child to United State of America on the ground that its removal from USA in 1984 was contrary to the orders of the US Courts. The Apex Court has taken a view that an elaborae enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability, security, loving and understanding, care and guidance and full development of the child's character, personality and talents and in that case, the Honourable Supreme Court has directed the wife as per the consent order passed by the Family Court of the State of New York that wife should take the child on her own to USA within fifteen days from today. While this Court has gone deep into the facts of the case and also the discussion taken up by Their Lordships in extenso with reference to the settled principles governing the subject, the courts have to be sensitive on the issue by interfering the niceties as to the welfare and interest of the minor child and rights of the parents shall not in any way be considered in the like proceedings. 18. The learned counsel for the petitioner also placed reliance upon a decision in 1999-2-LW 370(V.N. Sundaram .vs. Dr. Chitra),wherein the learned Judge has found that the place where the child take its education is not the place of its ordinary residence. Taking advantage of this observation, the learned counsel for the petitioner submits that even though the children are studying in Vikasa School at Thoothukudi, it will not confer any jurisdiction to the Court at Thoothukudi since it could not be considered that the children are ordinarily residing in Thoothukudi. 19. Taking advantage of this observation, the learned counsel for the petitioner submits that even though the children are studying in Vikasa School at Thoothukudi, it will not confer any jurisdiction to the Court at Thoothukudi since it could not be considered that the children are ordinarily residing in Thoothukudi. 19. He also, in support of his cotention, cites a decision in 1995 LW Page 391(Bhagyalakshmi .vs. K. Narayana Rao) in which on consideration of facts as well as other circumstances and with regard to legal position the learned judge has observed that the term "ordinarily resides" incorporated under Section 9 of the Act connotes a regular, normal or settled home and not a temporary or forced one to which a minor might have been removed either by stealth or by compulsion. It is also observed thus: "Section 25 of the Act provides as follows: 25.) Title guardian to custody of ward-- (1) If a ward leave or is removed from the custody of a guardian of his person, the court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the court may exercise the powers conferred on a Magistrate of the first class by Section 1000, Crl.P.C. 1882(Now the Code of Criminal Procedure, 1973(Act 2 of 1974) and the corresponding section is Section 97) (3) The residence of a ward against the will of his guardian with the person who is not his guardian does not itself terminate the guardianship." In the light of the aforesaid statutory provisions, the question whether the minor children in the present case "ordinarily resideds" at Komarapalayam within the jurisdiction of the District Court Salem or not, has to be decided. If it is to be held that they were so residing, it is not disputed that in that event, the District Court at Salem will have jurisdiction to entertain the proceedings. The words "ordinarily resides" would in my view, connote, a regular, normal or settled home and not a temporary or forced one to which a minor might have been removed either by stealth or by compulsion. The words "ordinarily resides" would in my view, connote, a regular, normal or settled home and not a temporary or forced one to which a minor might have been removed either by stealth or by compulsion. The place of residence at the time of the filing of the application under the Act does not help to ascertain whether a particular court has jurisdiction to entertain the proceedings or not, it would be easy to stiffle proceedings under the provision of the Act by mere act of moving the minors from one place to another and consequently, from one jurisdiction to another. The question whether the minors were ordinarily residing in any particular place has to be primarily decided on the facts of the particular case." 20. The learned senior Counsel for the respondent cites a decision of this Court in (2011) 2 MLJ 796 (Sandhiya .vs. D. Gunasekaran), wherein, the learned Judge has held that residence of minors with the mother at her maternal home though for some years had necessarily to be regarded as a temporary one or under compulsion or force of circumstances and could not therefore be regarded as temporary one or under compulsion or force of circumstances and could not therefore be regarded as their ordinary place or residence which connotes the idea of a settled home which in the instant case was the father's place of residence. 21. In 2011 6 MLJ 575(SC)(Ruchi Majoo .vs. Sanjeev Majoo), the Honourable Supreme Court has held thus: "The duty of a Court exercising its parens parraie jurisdiction as in cases involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration; the Court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign Court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the Courts in this Country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. That does not, however, mean that the order passed by a foreign Court is not even a factor to be kept in view. Objectivity and not abject surrender is the mantra in such cases. That does not, however, mean that the order passed by a foreign Court is not even a factor to be kept in view. But, it is one thing to consider the foreign judgment to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision." 22. In I (2010) DMC 362(SC)(Shilpa Menon .vs. Aviral Mittal and another), the Honourable Supreme Court has referred to the earlier judgment of the Supreme Court and observed as follows: "11.) Mr.Shishodia submitted that an almost similar question had been considered and decided by this Court in Sarita Sharma .vs. Sushil Sharma, I (2000) DMC 413(SC)=I(2000) CCR279(SC)=II(2000)SLT 357= 2000(3) SCC 14 , wherein it was held that even a decree passed by a foreign court could not override the consideration relating to the welfare of the minor child. It was held that what was of paramount importance was the interest of the minor child, a principle which is universally recognized and accepted. It was submitted that in the aforesaid decision this Court had also observed that all the technicalities involving jurisdiction and comity of Courts would have to give way to the issue involving the welfare of the minor. Everything else pales into significance in deciding the matter of custody of a minor child and especially a minor child belong the age of five years." 23. This Court follows the well settled principles laid down by the Honourable Supreme Court of India. The following points are emerging in this case which has to be borne in mind in the matter of deciding the issue of jurisdiction. (a) interest and welfare of the minor child should be the paramount consideration of the Court in which the rights of the parents need no consideration. (b) mere technicalities shall not be the criteria for deciding the point of jurisdiction of the Court. (c) with reference to the available facts and circumstances of the case, the Court has also to consider the important fact of child developing the roots in the country or place to which it had been brought so as to make it comfortable for the child to concentrate in the studies. 24. (c) with reference to the available facts and circumstances of the case, the Court has also to consider the important fact of child developing the roots in the country or place to which it had been brought so as to make it comfortable for the child to concentrate in the studies. 24. If the above principles are applied to the facts of the present case, it would transpire that right from 2007, the children are at Thoothukudi who have been admitted in Vikasa School and they have developed roots into the said locality. In the considered opinion of this Court since the children are studying for about five years in Vikasa School at Thoothukudi, shifting the jurisdiction of the Principal District Court, Thoothukudi to some other court would not only prejudice the rights and interest of the minor children, but also cause ill-effects on their education. In case, if the children were taken to USA for trial of the case to be tried by a court in USA, then it will lead to shortage of attendance in the school resulting in the lack of attendance which would be a bar for the children to writ the final examinations and if the children were taken to USA, they could not be in a position to pursue their studies. In this case, the ages of the children at the time of admission in the school at Thoothukudi are to be borne in mind. They were aged 7 and 5 years respectively who in their tender ages at the time and now five years is over. During this period they have been attending schools and studied in the primary classes which would be the foundation for the future education. Hence in this stage they need not be disturbed. This discussion is made on consideration of the paramount interest of the children who have developed roots after their arrival to India with their mother. In the firm opinion of this Court, the rights of their parents are to be considered in the courts only after deciding the valuable rights available to the minor children. This discussion is made on consideration of the paramount interest of the children who have developed roots after their arrival to India with their mother. In the firm opinion of this Court, the rights of their parents are to be considered in the courts only after deciding the valuable rights available to the minor children. In these circumstances, this court is of the considered view, taking note of the attending facts and circumstances, Thoothukudi is the place where the children are ordinarily residing and the court, that is to say the Principal District Court, Thoothukudi where the Guardian O.P is pending, has got jurisdiction to try the case. 25. In such view of this matter, there is no valid ground made out to interfere with the order challeged before this Court which leads to confirmation of the impugned order and accordingly the same is confirmed. The Civil Revision Petition is devoid of merits. 26. In fine, the Civil Revision petition is dismissed. Consequently, connected Miscellaneous Petition is dismissed. No costs.