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2012 DIGILAW 509 (MAD)

First v. Second

2012-02-01

V.PERIYA KARUPPIAH

body2012
Judgment : V. PERIYA KARUPPIAH, J. 1. This application has been filed by the applicant, who is the respondent in the main O.P., praying for the dismissal of O.P.No.154 of 2008 as not maintainable for want of territorial jurisdiction. 2. Heard Mr.S.A.Rajan, learned counsel for the applicant and Mr.M.K.Kabir, learned senior counsel appearing for Mr.A.Dhiraviyanathan, learned counsel for the respondent. 3. The learned counsel for the applicant would submit in his arguments that the petitioner in the main O.P. is the husband, and the respondent in the main O.P./ the applicant herein, was his wife and their marriage held on 01.08.1996 at Nagapattinan and out of their wedlock, first daughter Aysha Thabia was born in United Kingdom on 11.09.1997 and subsequently, twin female children namely, Farah and Rafah were born to the applicant on 11.12.1998 in India and the applicant/wife left India with her children to reside at United Kingdom along with her parents on 17.12.2006 and thereafter, on 28.03.2007 talaq was pronounced by the husband / petitioner and the Shariath Council at Chennai also recognised the same and the Shariath Council in London also granted divorce and after the lapse of nearly 30 months, the present O.P has been filed by the husband as petitioner seeking custody of all the three minor children under Section 25 of the Guardians and Wards Act, 1890 read with Order 21 Rules 2 and 3 of Original Side Rules. He would further submit in his arguments that the children are admittedly in the custody of their mother, the applicant herein, and they have now become the citizens of United Kingdom and the applicant is now employed at United Kingdom as a teacher and the children are also studying in the same school, where the applicant / mother is working. He would further submit in his arguments that the husband has filed the main O.P for custody of three minor children, to which he is not entitled according to Mohammedan Law, because the custody of minor female children should be with the mother until they attain puberty. He would further submit in his arguments that the husband has filed the main O.P for custody of three minor children, to which he is not entitled according to Mohammedan Law, because the custody of minor female children should be with the mother until they attain puberty. He would further submit in his arguments that a person who is in lawful custody of the minor children cannot be said to have removed the custody of those minors from lawful custody, when he or she takes those minor children with him/her, wherever he/she goes and in this case taking the children away with the applicant / mother would not amount to removal of custody from the respondent / father and therefore, it cannot be deemed that the applicant / mother removed the custody of three minor children from the respondent / husband on 17.12.2006 and it cannot be considered as a cause of action for filing the O.P at Chennai. He would further submit in his arguments that the Mohammedan Law, Section 102 would categorically define the persons who are eligible for custody of the minor and according to the said Section, the minor female children should be in the custody of mother till they attain puberty and all the three minor female children of the applicant and the respondent did not attain puberty on the date of leaving for United Kingdom, i.e., on 17.12.2006 and therefore, it cannot be considered as removal of custody from the respondent. He would further submit in his arguments that Section 95 of the Mohammedan Law would also deal with the minority of children in Islam and accordingly, a female child is not considered to be a major person, unless she attains puberty and other children are deemed to have attained the age of majority at 21 years when guardian has been appointed under Guardians and Wards Act and in any other case, 18 years of age is considered for becoming major, and in this case, all the three children are female children and therefore, the attainment of puberty will only govern the minority of the children. He would also submit in his arguments that it was informed by the applicant that the first child alone attain puberty long after the filing of main O.P. He would also cite a judgment of Calcutta High Court reported in AIR 1989 Calcutta 165 (Raj Kumar Gupta ..vs.. He would also submit in his arguments that it was informed by the applicant that the first child alone attain puberty long after the filing of main O.P. He would also cite a judgment of Calcutta High Court reported in AIR 1989 Calcutta 165 (Raj Kumar Gupta ..vs.. Barbara Gupta) in support of his arguments. He would also submit in his arguments that the cause of action is deemed to have arisen only at the place where the mother is living and the courts in the said place alone have got jurisdiction to try petition filed under the Guardians and Wards Act. He also cited a judgment reported in AIR 1993 Karnataka 121 (A.Lakshmisagar..vs. State) in support of his arguments. He would also submit in his arguments that as per Section 9 of the Guardians and Wards Act also the courts are having jurisdiction to entertain any petition for the custody of the minor child, where the minor is living or his/her residence is located. He would also submit that the place of ordinary residence of the minor was specifically inducted by the legislature under Section 9(1) of the Act in order to protect the minor's interest. He would further submit in his arguments that a similar case was discussed by Allahabad High Court in a judgment rendered in AIR 2003 Allahabad 77 (M/s.Rajendra Road Lines ..vs.. Indian Oil Corporation) in which the date of taking away the minor child and the place of residence would play important role and they would decide the jurisdiction of the court. He would also submit in his arguments that on the date of filing of the present O.P in O.P.No.154 of 2008, i.e., on 13.02.2008, all the three minor children were not residing at India, but were living at United Kingdom and the taking away of the minor children was also not amounting to removal from the Guardianship, since the mother / applicant herein had alone taken away the children while she was having lawful custody of the three minor children and therefore, the Original Petition filed by the husband / respondent herein in O.P.No.154 of 2008 cannot be sustained for want of territorial jurisdiction. He would further submit that the lack of jurisdiction is the point which can be raised at any time and this being the question of law, the said point can be decided as a preliminary issue and be proceeded with other points if on determination of this jurisdictional issue in favour of the respondent. He would also submit in his arguments that the main O.P filed by the petitioner / husband, the respondent herein, is therefore not sustainable and accordingly, the main O.P may be dismissed as this court has no jurisdiction and thus, the present application filed by the applicant / wife may be allowed. 4. The learned senior counsel Mr.M.K.Kabir appearing for the respondent would submit in his arguments that the allegation that the applicant and three minor children have settled at United Kingdom permanently is not correct. He would further submit that the objection raised by the applicant that this court has no territorial jurisdiction to try the dispute cannot also be correct. The applicant abandoned the company of the respondent and without the knowledge and consent of the respondent took away the children to London and the said taking away of the children would certainly amount to removal of the children from the guardianship and this court is entitled to entertain the petition for custody of those children. He would further submit in his arguments that this court has ample jurisdiction under Section 9 read with Section 25 of the Guardians and Wards Act. He would further submit that the legal position governing the field of jurisdiction relates to both the national and international removal of children and according to the provisions of Guardians and Wards Act under Section 9 read with Section 25, removal of children within the country would clearly stipulate that the courts which are having jurisdiction at the place of removal alone got jurisdiction where the children were removed from the custody. He would also submit that where the children are taken away or removed should have been considered as the place of ordinary residence of children as decided by Patna High Court in the judgment reported in II (1991) DMC 435 (Usha Devi Sharma ..vs.. Rajindra Kumar Kalia and others). He would also submit that where the children are taken away or removed should have been considered as the place of ordinary residence of children as decided by Patna High Court in the judgment reported in II (1991) DMC 435 (Usha Devi Sharma ..vs.. Rajindra Kumar Kalia and others). He would further submit that the person who has got custody of the children can maintain the O.P under section 25 of the Act, when such custody has been removed and the courts are having jurisdiction to entertain the petition for the custody of the children at the place of removal of the custody. He would also draw the attention of the Court to the judgment reported in AIR 1983 Madras 9 (Bhagyalakshmi..vs.. K.Narayana Rao) and AIR 1984 Madras 186 (Suresh Babu..vs.. Madhu) in support of his arguments. He would further submit that in yet another judgment of Allahabad High Court reported in AIR 1960 Allhabad 285 (Jamuna Prasad ..vs.. Mst.Panna), the words 'ordinarily resides' would mean that when the child was ordinarily residing at the place where it was removed. He would also draw the attention of the Court to the judgment of the Hon'ble Apex Court reported in AIR 1987 SC 3 (Elzabeth Dinshaw..vs.. Arvand M.Dinshaw) for the principle that the sudden and unauthorised removal of the child from one country to another is too frequent and all the Courts in all the countries to do all they can do to ensure that the wrong doers does not gain an advantage by this wrong doing. He would further submit that the removal of custody from the guardianship is the question of fact and it has to be decided only in the O.P and therefore, it cannot be decided at this stage to dismiss the O.P as not maintainable on the question of the place of residence and territorial jurisdiction. He would also submit in his arguments that without going into the factual aspect, it cannot be decided as to the cause of action. He would also submit that the respondent / father is only insisting for visitation right for one month in a year and he is willing to meet the travel expenditure and take care of the children as guardian and the children would also learn about the culture of this country and interact with the relations of their father in India. He would also submit that the respondent / father is only insisting for visitation right for one month in a year and he is willing to meet the travel expenditure and take care of the children as guardian and the children would also learn about the culture of this country and interact with the relations of their father in India. He would further submit that the respondent had adequate means to ensure that the children are looked after well. Therefore, the petition filed by the petitioner should not be dismissed at this level and it has to go for enquiry for the purpose of deciding as to the removal of the children or taking away of the children. He would also submit in his arguments that the applicant has not made out any case for the dismissal of the O.P at this stage and therefore, the application filed by the applicant to dismiss the main O.P may be dismissed. 5. I have given anxious thoughts to the arguments advanced on either side. 6. The applicant is the mother and the respondent is the father of these three unfortunate children. Those three children are admittedly minors at the time of filing the main O.P. Both the parties are governed by Mohammedan Law. The fact that divorce has been given by the Shariath Councils both in Madras as well as in London was also admitted. Now, the children viz., Aysha Tahbia, Farah and Rafah are in the custody of the mother/applicant herein at United Kingdom. It is also not disputed that the children are studying in a school at United Kingdom where the applicant / mother is working as a teacher. The present O.P has been filed by the respondent / father seeking custody of the minor children from the custody of the applicant / mother, but now it has been reduced to a demand of visitation rights in the course of argument advanced by the learned counsel for the respondent. It is also the further case of both parties that the children were taken away by the applicant / mother on 17.12.2006 from India to United Kingdom. The children were also conferred with citizenship of United Kingdom and they are now the permanent residents of United Kingdom. It is also the further case of both parties that the children were taken away by the applicant / mother on 17.12.2006 from India to United Kingdom. The children were also conferred with citizenship of United Kingdom and they are now the permanent residents of United Kingdom. The petition has been filed by the respondent / petitioner for custody after the lapse of 30 months from the said date of leaving India. In the aforesaid circumstances, the applicant has raised the point that the O.P is not maintainable in view of the provisions of Sections 9 and 25 of the Guardians and Wards Act. The main argument advanced by the applicant's counsel was that Section 9 would go to show that the courts are having jurisdiction to entertain any such petition for guardianship or custody of the minor children should be filed where the minor children ordinarily reside. The further case of the applicant was to the effect that the minor children in this case were not living or residing at Chennai or even in India on the date of filing of main O.P and therefore, the main O.P cannot be sustained, before this Court. 7. The case of the respondent / father would be that the removal of children from the jurisdiction of the court concerned could be taken as the place of residence of the minor children as per the judgment of the Hon'ble Apex Court reported in 2010 (1) SCC 174 (V.Ravi Chandran (DR.) (2) ..vs.. Union of India). For the purpose of appreciating the contentions of both sides, I have to go through the dictum of the Hon'ble Apex Court reported in 2010 (1) SCC 174 in paragraph 29, which would run as follows:- "29.) While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate 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 and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case." However, the learned counsel for the applicant would submit in his argument that the facts dealt with in the said judgment is different from the present case, wherein the applicant /mother was having a lawful right of custody over three minor female children for whom the applicant is the lawful custodian as per Sections 95 and 102 of Mohammedan Law in which the mother is entitled to the custody of a minor female children till they attain the age of puberty and on the said date 17.12.2006, the three minor children were in lawful custody of the applicant and therefore, taking the minor children to United Kingdom on 17.12.2006 would not amount to removal from the custody of the respondent / father. The provision of Sections 95 and 102(1)(a) of the Mohammaden Law would run thus:- "Sec. 95 Minor:- A person shall be deemed to have become major when he attains- (1) puberty in respect of the capacity to act in the matters of marriage, dower, divorce and adoption; (2) the age of 21 years, where - (a) a guardian of his person or property or of both has been appointed or declared by the Court; or (b) his property has been or shall be assumed by any Court of Wards before the age of 18 years; (3) the age of 18 years – in all other cases." Sec.102. Right to the custody of the person of a minor:- (1) Subject to the provisions of Guardians and Wards Act, 1890, the custody of the person of a minor shall belong- (a) in the case of a boy below 7 years of age and of a girl below puberty (whether married or unmarried) – to the female relations in the following order : (i) mother; (ii) mother's mother, how highsoever; (iii) father's mother, how highsoever; (iv) sister (full sister being preferred to uterine and uterine to consanguine; (v) sister's daughters, in the same order as sisters; (vi) maternal aunts in the same order as sisters; (vii) mother's father (viii) paternal aunts in the same order as sisters; (ix) paternal aunts of mother and father in the same order andin default of them to the male paternal relations in the following order. (i) father; (ii) nearest paternal grandfather; (iii) full brothers; (iv) consanguine brother; (v) full brother's son; (vi) consanguine brother's son; (vii) full paternal uncle; (viii) consanguine paternal uncle; (ix) full paternal uncle's son; (x) consanguine paternal uncle's son, and in default of agnates the following other relations : (i) uterine brothers; (ii) his son; (iii) father's uterine brother; (iv) maternal uncles; (v) mother's uterine brother; PROVIDED THAT a male relation shall not be entitled to the custody of a girl who is not within the prohibited degrees. 8. On a careful perusal and understanding of those two Sections, I could see that the applicant / mother was entitled to legal custody of the children on the date of taking away the children from India to United Kingdom. Whether such taking away of the children would be amounting to removal of custody is the question. In the discussed in the judgment of the Hon'ble Apex Court, the custody was removed by the mother, who was figuring as respondent No.6, from United States to India against the orders of Court at USA. Such removal of custody against the order of Court was considered as removal from the guardianship and the courts at India were found jurisdiction. As far as this case is concerned, the mother, who was having legal custody has taken the children from India to United Kingdom for the purpose of rearing the three minor female children. Such removal of custody against the order of Court was considered as removal from the guardianship and the courts at India were found jurisdiction. As far as this case is concerned, the mother, who was having legal custody has taken the children from India to United Kingdom for the purpose of rearing the three minor female children. It was not disputed by the respondent / father that the children have become permanent citizens of United Kingdom and are studying in a school at United Kingdom where the applicant / mother is working. In the said circumstances, the taking away of children on 17.12.2006 from India to United Kingdom cannot be equated to the removal against the order of the Court as discussed in the judgment of the Hon'ble Apex Court reported in 2010 (1) SCC 174 cited supra. 9. Furthermore, the respondent / father was keeping quiet for about 30 months from the said date of taking away the children and has filed the present O.P only on 13.02.2008. The long silence of the respondent / father would also raise doubts about his bonafide in making the claim. When the taking away of the children from India on 17.12.2006 was not considered as removal of the children from the custody of the respondent / father, it cannot be said that on the said date the minor children are deemed to have ordinarily resided at Chennai in India. It has not been disputed that on the date of filing of the petition, viz., 13.02.2008, the minor children were admittedly not residing in Chennai. In the said circumstances, Section 9 of the Guardians and Wards Act which governs the jurisdiction would come into operation. According to the said provision, the O.P ought to have been filed where the minor children whose custody has been required, ordinarily resides before the Courts within the jurisdiction. In this case, on 13.02.2008 when the O.P was filed, the minor children were not living or residing at Chennai city in India. The taking away of the children by the applicant / mother on 17.12.2006 could not be considered as removal of custody from the respondent / father. In this case, on 13.02.2008 when the O.P was filed, the minor children were not living or residing at Chennai city in India. The taking away of the children by the applicant / mother on 17.12.2006 could not be considered as removal of custody from the respondent / father. In the said circumstances, this Court is not having any territorial jurisdiction to entertain the O.P. The said petition was admittedly filed after the delay of 30 months from the date of the children being taken away to United Kingdom from India. After the said departure of the applicant / mother with the children, the respondent / father had taken steps for divorce by pronouncing talaq. Having much conscious on getting talaq, the respondent / father was not having any interest in getting the minor children for his custody. Furthermore, the respondent / father was not entitled for legal custody from the applicant on the date of filing of the petition. Moreover, the twin minor children are yet to attain puberty and therefore, the applicant / mother is entitled to the legal custody of the minor children till they attain puberty under Sections 95 and 102 of the Mohammedan Law. In the given circumstances, the respondent / father was not having any right to file petition for seeking custody of the minor children, who are permanently residing at United Kingdom and it was not complied with the provisions of Sections 9 and 25 and therefore, the O.P ought not to have been admitted in this court, but it has been taken to the file which is not correct. Therefore, this Court is always entitled to pass orders at any stage, regarding the maintainability on territorial jurisdiction. Having found this court has no territorial jurisdiction to try the O.P, the O.P ought to have been transferred to a Court, which is having jurisdiction. Unfortunately, the respondent / mother as well as the minor children are permanently residing at United Kingdom. In the said circumstances, the O.P cannot be transmitted to the file of the courts at United Kingdom. Therefore, it has become necessary for this court to dismiss the O.P on the ground of territorial jurisdiction. However, the respondent / father is always entitled to proceed, for the custody of minor children at the appropriate court before the competent court at United Kingdom. 10. Therefore, it has become necessary for this court to dismiss the O.P on the ground of territorial jurisdiction. However, the respondent / father is always entitled to proceed, for the custody of minor children at the appropriate court before the competent court at United Kingdom. 10. With the aforesaid observation, the application filed by the applicant seeking for dismissal of the O.P on territorial jurisdiction is ordered and thus, the main O.P filed by the respondent / father is dismissed. There is no order as to costs.