Thomas Koshy Chirayil S/o. Late Koshy Chirayil v. Anand Rosh Bose
2019-11-07
ANNIE JOHN, K.HARILAL
body2019
DigiLaw.ai
JUDGMENT : K. HARILAL, J. 1. The parties are referred to as in the impugned order under challenge. 2. The petitioner is the wife of the respondent. The respondent filed OP.No.1095/2015 before the Family Court, Thiruvananthapuram against the petitioner seeking a decree for permanent custody of the minor child born to them. The petitioner filed I.A.No.1859/15 in the said OP challenging the jurisdiction of the Family Court to try the aforesaid OP filed against her, on the ground that the minor girl, for whose custody the aforesaid OP was filed, is ordinarily residing at Abudhabi and hence the Family Court has no jurisdiction to try the OP, in view of Section 9 of the Guardians and Wards Act. The respondent opposed the said application contending that the child is not ordinarily residing at Abudhabi and the child is residing with the petitioner only for the reason that the petitioner is employed in Abudhabi and it cannot be said that the child is ordinarily residing in Abudhabi. After considering the aforesaid pleas, the Family Court dismissed the said application challenging the jurisdiction by finding that the petitioner's residence at Abudhabi in connection with her employment cannot be treated as her ordinary residence. Further, the Family Court held that “where the parents who are temporarily residing abroad in connection with their employment and the minors who are residing with them, their place of ordinary residence can be taken as the place in which they are at their native place in India”. The legality and correctness of the aforesaid finding is challenged in this OP(FC). 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. Admittedly, the petitioner is an Indian citizen who was residing along with her parents at Trivandrum. But now, she is working at Abudhabi and after the dissolution of marriage, the minor child is also residing along with her at Abudhabi and studying in a school in 7th Grade at Abudhabi. 5. What does the expression "ordinarily residing" contemplated under section 9 of the Guardian and Wards Act mean and intent, in the case of a minor residing abroad with a parent, who is an Indian citizen employed abroad? This is the question that arises for consideration in this OP(FC).
5. What does the expression "ordinarily residing" contemplated under section 9 of the Guardian and Wards Act mean and intent, in the case of a minor residing abroad with a parent, who is an Indian citizen employed abroad? This is the question that arises for consideration in this OP(FC). According to section 2 of the Guardian and Wards Act, this Act extends to the whole of India, except Jammu & Kashmir. The minor residing abroad with the parent was not within the contemplation of the Parliament at the time of passing the said Act. It follows that what is contemplated under the said Act is the minor, who is residing with the parent in India only, and the expression "ordinarily resides" must be read and interpreted as the place where the minor ordinarily resides in India. Therefore, the scope and extent of the expression "ordinarily resides" must be construed in the above context. 6. Section 9(1) of the Guardians and Wards Act reads thus: “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.” 7. In 1970 (2) SCC 717 (Jijabai Vithal Rao Gajre vs. Pathan Khan and Others), the Supreme Court held that the expression “ordinarily resides” connotes a regularly settled home and it is something more than a temporary residence. Ordinarily, a minor child's ordinary residence is the place of residence of the parents and the expression "ordinarily resides" is not identical with the place of residence at the time of filing the application, seeking custody. Where the person is residing abroad on a visa, issued by a foreign country, whatever be the length of that stay, it is a temporary stay at the Will of the foreign country and his residence aborad cannot be treated with his regularly settled home. Therefore, we are of the view that in the case of a minor, who is residing along with the parent abroad, the place at which the parent, in whose custody, the minor was living in India, before the departure of the minor from India, regularly settled and permanently residing in India, is the minor's place of ordinary residence.
Therefore, we are of the view that in the case of a minor, who is residing along with the parent abroad, the place at which the parent, in whose custody, the minor was living in India, before the departure of the minor from India, regularly settled and permanently residing in India, is the minor's place of ordinary residence. So, the Family Court, within whose jurisdiction that place is situated will have the jurisdiction and power to try the case. The above view is supported by the principles of interpretation, that every expression in a statute must be construed, to advance the aim and object of the enactment and not to narrow down the scope and extent of the enactment. So, we are of the further opinion that, any other interpretation would take away the minor children, who are temporarily residing abroad along with the parent, in connection with the temporary employment of their parent, from the jurisdiction of the Family Court in India. 8. Coming to the instant case, at the time of marriage, the petitioner and respondent were residing in Kerala and after the birth of the child, the petitioner was residing at Thiruvananthapuram in the matrimonial home along with the minor child. Thus, the petitioner's regularly settled permanent residence is situated within the territorial jurisdiction of the Family Court, Thiruvananthapuram. It follows that the Family Court, Thiruvananthapuram has jurisdiction and power to try the aforesaid original petition. 9. That apart, the petitioner has filed I.A.1740/2015 seeking temporary custody of the child and the Family Court allowed that IA and granted temporary custody of the child to the petitioner. Thereafter, the petitioner is estopped from raising a contention that the Family Court at Thiruvananthapuram has no jurisdiction to entertain the OP. We do not find any reason to interfere with the impugned order under challenge. This OP(FC) is dismissed.