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2013 DIGILAW 1399 (KAR)

K. U. Pooviah @ Vivek v. Narnitha Pooviah

2013-12-13

A.N.VENUGOPALA GOWDA

body2013
Judgment : 1. This writ petition is directed against an order passed by the learned III Addl. Principal Judge, Family Court, Bangalore, who, by the impugned order has held that he has jurisdiction to decide the case. 2. The marriage of the petitioner with the respondent was solemnised according to the Hindu rites and customs on 24.04.1994. The marriage having consummated, the first child Aditi, was born on 05.06.1998 and the second child Vidushi, was born on 17.09.2003. Misunderstanding having arisen between the spouses, they are living separately from 2010. The petitioner is residing at Lakshmi Estate, Polibetta P.O., South Coorg-571215 and the respondent is residing atNo.22/2, Alfred Street, Richmond Town, Bangalore - 560025. 3. Writ Petition (HC) No.114/2012 filed by the respondent against the petitioner and two others, to issue a writ in the nature of Habeas Corpus, directing the petitioner to cause the production of the person of detenu viz. Vidushi, aged about 8 years 9 months, before the Court and handover the detenu to her legal custody having been taken up and the petitioner having been directed to appear before Court on 25u07.2012 along with Vidushi, after questioning the child, the matter was adjourned to 14.08.2012 and on the said day the writ petition was disposed of with an observation that it is a matter within the domain of the Family Court which should look into all the aspects of the matter, if so advised, for seeking custody of the child. 4. On 02.08.2012, the respondent filed G&WC.No.163/2012, under Ss.7 and 17 of the Guardian and Wards Act, 1890 (for short 'the Act') read with S.6 of Hindu Minority and Guardianship Act, 1956, in the Family Court at Bangalore, against the petitioner, to pass a decree, declaring and appointing her as the legal guardian of the two minor children and grant her the permanent custody by restraining permanently the petitioner from removing the custody of Aditi and by a mandatory injunction to handover to her custody Vidushi and for grant of consequential reliefs. Petitioner filed the statement of objections and opposed the claim of the respondent for custody of the children. 5. Respondent filed an I.A.No.3 in G&WC. No. 163/2012, to pass an ad-interim order of mandatory injunction, directing the petitioner to handover the custody of Vidushi. Petitioner filed the statement of objections and opposed the claim of the respondent for custody of the children. 5. Respondent filed an I.A.No.3 in G&WC. No. 163/2012, to pass an ad-interim order of mandatory injunction, directing the petitioner to handover the custody of Vidushi. Though the petitioner filed statement of objections and opposed the prayer in I.A.No.3, the Trial Judge by an order dated 18.01.2013 held that keeping in view the welfare and interest of the minor and having arrived at the conclusion that it is just and proper to give the custody to the mother, ordered that child shall live with the mother, subject to final order that may be passed. However, the petitioner was granted visitation rights. W.P.No.3375/2013 filed against the said order by the petitioner, having regard to the totality of facts and circumstances was dismissed on 28.01.2013. SLP No.8784/2013 filed by the petitioner against the said orders was rejected on 20.02-2013. 6. Petitioner filed I.A.No.6 in G&WC.No.163/2012, under S.9 of the Act, seeking to dismiss the petition as not maintainable, on the ground that he being ordinarily residing and carrying on business in Coorg and Vidushi being also residing with him and attending the School in Cooig, any application under S.9 has to be made to the District Court at Coorg and the Family Court at Bangalore has no territorial jurisdiction to try and decide the case. Statement of objections having been filed to I.A.No.6 and upon hearing the parties, the Trial Judge finding that the father had removed the younger child Vidushi from where she was ordinarily residing since two years with her mother and without the knowledge and consent of the mother had got the child admitted to Coorg Public School and hence, the minor's ordinary place of residence cannot be said to be Coorg, merely because she was residing at Coorg on the date petition was filed, furthermore, since the temporary and illegal removal of Vidhushi from where she was residing since two years to another place will not oust the jurisdiction of the Court, LA.No.6 was dismissed by an order dated 18.01.2013. Assailing the said order, this writ petition has been filed. 7. Assailing the said order, this writ petition has been filed. 7. According to the petitioner, Vidushi having been admitted to Coorg Public School with the knowledge of the respondent, which becomes clear from her letter dated 09.06.2012, vide Annexure-F, the conclusion of the Family Court that the child was removed illegally from the custody of the mother is erroneous. The further contention of the petitioner is, that without holding any enquiry, the conclusion arrived at, that the father clandestinely removed Vidushi, without consent of the mother and got admitted the child to Coorg Public School is illegal. 8. The case of the petitioner is that the Family Court, Bangalore, does not have the competency to decide the application presented before it, since Vidushi was not residing within the jurisdiction of the Family Court when G&WC.No.163/2012 was filed. Support was sought to be drawn by making reference to S.9 of the Act, which says that the application with respect to guardianship of the person of the minor shall be made to the District Court having jurisdiction over the place where the minor ordinarily resides. Petitioner's further case is, that in W.P.No.114/2012 and G&WC.No.163/2012, there being an admission that Vidushi was residing with the father at Coorg, it is the District Court at Coorg, where the minor ordinarily resides has the jurisdiction and not the Family Court at Bangalore. The petitioner contends that the conclusion arrived in the impugned order that the ordinary residence of Vidushi is Bangalore being perverse, the impugned order is unsustainable and I.A.No.6 having been illegally dismissed by the Trial Court, interference is warranted. 9. Smt. Pramila Nesargi, learned Senior Counsel for the respondent, on the other hand would contend that Vidushi was ordinarily residing in Bangalore ever since 2010 and she was admitted to Bishop Cotton Girls School at Bangalore, wherein she studied during 2010-11 and 2011-12, and therefore, the Family Court at Bangalore has territorial jurisdiction and hence, the application under S.9(l) of the Act can lie to the Family Court, Bangalore and therefore, the Court below is justified in dismissing I.A.No.6. 10. In the above background, the question which needs to be decided is, whether the Family Court, Bangalore has jurisdiction to entertain and decide the petition filed for grant of the reliefs, noticed supra? 11. Undisputedly, the respondent having left the matrimonial home along with her two children has moved to Bangalore in 2010. 10. In the above background, the question which needs to be decided is, whether the Family Court, Bangalore has jurisdiction to entertain and decide the petition filed for grant of the reliefs, noticed supra? 11. Undisputedly, the respondent having left the matrimonial home along with her two children has moved to Bangalore in 2010. Both the children were admitted to Bishop Cotton Girls School, Bangalore during the Academic year 2010-11 and resided with their mother. On 25.03.2012, during summer vacation to the School, the petitioner took both the children to Coorg. The eldest child Aditi, returned to Bangalore on 15.04.2012. The younger child Vidushi, having not returned, alleging illegal detention, W. P. No. 114/2012 was filed against the petitioner to produce Vidushi before the Court. The child having been produced before the Court on 25.07.2012 and having been questioned in the Court Hall and noticing the arrangements made for the admission of the child at Bishop Cotton Girls School, Bangalore and fee etc., having been paid, the case having been adjourned to 14.08.2012, the mother having filed G&WC.No.163/2012 in the Family Court, Bangalore, on 02.08.2012, the writ petition was disposed of by making observations, noticed supra. 12. Section 9 of the Act is with regard to the jurisdiction of the Court to entertain a claim for grant of custody of a minor. Sub-Section (1) reads as follows: "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." 13. For actermining the jurisdiction of a Court to entertain the petition, what is to be found out is the 'ordinary residence' of the minor. The expression 'ordinary residence' means 'usual residence' and in this case, undeniably, until Vidushi was taken on 25.03.2012 i.e., in the summer vacation of 2012, she was studying and residing with her mother at Bangalore. Vidushi was taken along with her sister Aditi on 25.03.2012, to Coorg, during summer vacation to School. Without even obtaining the transfer certificate from Bishop Cotton Girls School, Bangalore, the petitioner had got Vidushi 'provisionally' admitted on 28.05.2012 in Coorg Public School,Gonikoppal and the said School wrote on 04.06.2012 to Bishop Cotton Girls School, Bangalore, to send the transfer certificate. Vidushi was taken along with her sister Aditi on 25.03.2012, to Coorg, during summer vacation to School. Without even obtaining the transfer certificate from Bishop Cotton Girls School, Bangalore, the petitioner had got Vidushi 'provisionally' admitted on 28.05.2012 in Coorg Public School,Gonikoppal and the said School wrote on 04.06.2012 to Bishop Cotton Girls School, Bangalore, to send the transfer certificate. The petitioner having not brought and left Vidushi in her mother's custody and to attend her studies, the respondent having gone over to her in-laws' house on 09.06.2012, a letter dated 09.06.2012 (Annexure-F) has been obtained. 14. A temporary residence at a particular place by compulsion at that place, however long, in law, cannot be treated as the place of ordinary residence. The purpose behind the use of the words in Sub-Section (l) of S.9 of the Act, 'in the place where minor ordinarily resides' is to avoid any mischief that a minor may be stealthily removed to a different place and if is kept there, application for minor's custody, could be filed within the jurisdiction of the Court, wherefrom the child had been removed i.e., in the place where she was residing earlier to her temporary removal by whatever means i.e., to a different place. Mere casual stay at a particular place cannot be the ordinary place of residence, falling within the meaning of the provision 'the minor ordinarily resides' appearing in Sub-section (1) of S.9 of the Act. 15. In the case of K.C. SASHIDHAR VS. ROOPA, ILR 1992 KAR 2791, the material facts were, that the parties after their marriage at Mysore, started marital life at Bombay and a child was born at Mysore, when the wife came back to paternal home and thereafter, when the wife and child went to Bombay to reside with the husband, while they were living at Bombay, wife alleged that she was driver, out of the house along with her mother and custody of the child was not given to her and as such, filed G&WC.No.5/1991, in the District Court at Mysore, seeking its intervention in the matter of custody of child. A preliminary objection having been raised with regard to the maintainability of the petition on the ground that the child was not residing in Mysore as on the date of presentation of the petition and having stated that the child was residing with the father and the jurisdictional Court would be at Bombay and not Mysore, upon consideration of the rival contentions it has been held as follows: "4. Invariably, a minor child that too at the age of 10 to 11 months is expected to be with the custody of the mother. So the words "ordinarily resides" should be construed as the place where the mother resides before the presentation of the Petition. It is an admitted fact that, in the instant case, the mother was residing at Mysore when she presented the Petition at IV Mysore seeking custody of the child. Further, it is to be noted that she has alleged in her Petition circumstances under which tne child was forced to be left in the custody of the father. When such is the case, the place of residence has to be construed as the place where mother resided before presenting the Petition. In view of that, the finding given by the Court below that the Petition filed by the petitioner, namely the mother, at Mysore, having jurisdiction does not suffer from any legal infirmities. In MS. FIROZA BEGUM vs. AKHTARUDDIN LASKAR AIR 1963 ASSAM 193 wherein the Assam High Court observed: "it is contended by Mr. Ghose that the expression "ordinarily resides", does not mean casual or factual residence of the minors at the time of the application being made, and that normally the residence of the minor should be taken as the place where the legal guardian is residing That the expression "where the minor ordinarily resides" appears to have been deliberately used to exclude places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor, and that the phrase "ordinarily resides" indicates ordinary residence even at the time of the presentation of the application under Section 25 of the Act, and that the emphasis is undoubtedly on the minor's ordinary place of residence." 5. In the instant case, since the child is of tender age, the legal guardian would be the mother and the place of her residence, on the date of the presentation of the Petition, is the place where it is to be construed as the minor "ordinarily resided" and as such the finding arrived at by the Court- below does not suffer from any legal infirmities. Hence the circumstances do not warrant interference of this Court in exercise of its power under Section 115 of the C.P.C. Accordingly, this C.R.P is dismissed. No costs." 16. In the case of ABRAHAM G. KARIMPANAL AND OTHERS 1/J. NIL, AIR 2004 KAR 321 , considering the scope of S.9 of the Act, it has been held as follows: "17. The principles stated above and the case law noticed would not leave us in doubt that while determining the jurisdiction of a Court to entertain the application under Section 7 of the Act on the ground of residence, what is material is actual residence of the minor at the commencement of the proceedings and not a legal or constructive residence of such minor unless where an artificial residence is created with bad faith. In the instant case, admittedly, the minor Aadya Teresa has been in the foster-care of the appellants 1 and 2 with effect from 11.08.2002 in a place which admittedly comes under the territorial jurisdiction of the Family Court at Bangalore. In an almost similar facts-situation, a learned Single Judge of this Court in the case of Gopala Krishna Bengeri (CRP 2705/2003 decided on 02.09.2003) held that the Bangalore Court has jurisdiction to entertain the application filed under Section 7 of the Act. 18. Section 4(5) of the Act defines the word "Court". According to the definition, the word "Court" for the purpose of the Act is the District Court having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian of a minor in respect of his person or property. The Family Courts Act, 1984, under Section 7. According to the definition, the word "Court" for the purpose of the Act is the District Court having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian of a minor in respect of his person or property. The Family Courts Act, 1984, under Section 7. lays down that a family Court shall have and exercise all jurisdiction exercisable by any District Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation which, inter alia, includes, according to Clause (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. Section 8 of the Family Courts Act, specifically iays down that where a family Court has been established for any area, no District Court or any subordinate Civil Court referred to shall, in relation to such area, have or exercise any jurisdiction in respect of such suits or proceedings referred to in the Explanation which includes Clause (g). In the matter of Ashraya, AIR 1991 Kant 10, this Court held that the proceedings for appointment of guardian of a child, even if the petitioner is a foreigner and the child concerned is an orphan or destitute, are proceedings of the nature falling under Section 7(1), Explanation, clause (g) of the Family Courts Act, 1984 and the family Court alone has the jurisdiction in the matter. Therefore, the Family Court though established under the Family Courts Act, 1984, has jurisdiction of the District Court conferred on that Court by the Act. In other words, the Family Court is the District Court for the purposes of the Act. 19. By a careful reading of the order of the Family Court impugned in this appeal, it appears that the Family Court was also influenced in the decision-making by the fact that the Scrutiny Officer, Karnataka State Council for Child Welfare, has opined that it would have been appropriate for the Scrutinizing Agency in Tamilnadu to undertake the scrutiny of the facts stated by the appellants in their petition and to make recommendation. There is no warrant for the Court to doubt the impartiality or efficacy or integrity of the Scrutiny Officer in Karnataka State in getting the required information and particulars which may have bearing on the decision-making. Be that as it may, the subjective opinion of the Scrutiny Officer, Karnataka State Council for Child Welfare can never be a determinative factor in deciding the jurisdiction of the Family Court to entertain the petition of the appellants filed under Section 7 of the Act. The jurisdiction of the Family Court has to be decided in the premise of the definition of 'the Court' in Section 4(5) of the Act and the provisions of Section 9 of the Act. If a Family Court before which an application is made under Section 7 of the Act finds that the minor whose guardianship is sought in the application, ordinarily resides within its territorial jurisdiction, such Family Court is bound to entertain the application and decide that application on merit in accordance with law. The Court cannot refuse to exercise the jurisdiction under Section 7 of the Act on grounds of expediency or convenience or propriety. Jurisdiction of a Court is determined by law and not by considerations of expediency or convenience or choice of the parties who invoke the jurisdiction of such Court." 17. In the case of RUCHI MAJOO VS. SANJEEV MAJOO, (2011) 6 SCC 479 , the material facts were that, a child of NRI parents was born in America. The wife, on account of husband's behaviour, took a decision to take the child and returned to Delhi. The husband filed a case of abduction of minor child against the wife in America. SANJEEV MAJOO, (2011) 6 SCC 479 , the material facts were that, a child of NRI parents was born in America. The wife, on account of husband's behaviour, took a decision to take the child and returned to Delhi. The husband filed a case of abduction of minor child against the wife in America. The wife took refuge under an order passed by the District Court, Delhi, in a petition filed under Ss.7, 8, 10, 11 of the Act, granting interim custody of the minor to her, the writ petition filed by the husband having been allowed by the High Court and consequently, dismissed the custody case filed by the mother and SLP having been filed by the mother, while allowing the appeal, it was held, that the solitary test for determining the jurisdiction of the Court under S.9 is the 'ordinary residence' of the minor and finding that the mother having had admitted the child to a school where he was studying for the past nearly three years, it was held that the High Court has fallen in error in accepting the version of the father and dismissing the application filed by the mother. 18. In the instant case, there being no dispute that the child was studying at 3ishoD Cotton Girls School at Bangalore from 2010-11 and 2011-12 and the petitioner having taken the child during the school vacation of summer-2012 and had got her provisionally admitted in Coorg Public School, Gonikoppal, thereby creating artificial residence with bad faith, it cannot be construed that Vidushi ordinarily resided with him in Coorg District. In the case of minor, the Court will have to take into consideration that the ordinary residence of the child shall be the place where the child resided with the mother. 19. The reference made to an alleged letter of the respondent, vide Annexure-F, in view of the above, has no relevance to decide the jurisdiction of the Family Court, Bangalore, to entertain and decide the case. 20. The view taken by the Family Court, Bangalore, to dismiss I.A.No.6, in the factual background, noticed supra, cannot be termed illegal. The court below has correctly exercised the jurisdiction vested in it and no grave injustice has occasioned to the petitioner on account of the dismissal of I.A.No.6. 20. The view taken by the Family Court, Bangalore, to dismiss I.A.No.6, in the factual background, noticed supra, cannot be termed illegal. The court below has correctly exercised the jurisdiction vested in it and no grave injustice has occasioned to the petitioner on account of the dismissal of I.A.No.6. No case exists for interference in exercise of the jurisdiction under Article 227 of the Constitution, especially principles (4), (6) and (7), laid down in para 38 of the decision in the case of SURYA DEV RAI Vs. RAM CHANDER RAI, reported in (2003)6 SCC 675 . In the result, the writ petition being devoid of merit is dismissed with no order as to costs.