Custody of a Child; Salini Vs. Umasankaran [Kerala High Court, 23-08-2016]

Guardians and Wards Act, 1890 – Ss. 9 & 14 – Permanent custody of a Minor Child – Jurisdiction of a court to entertain an application for custody of a child – The expression “ordinarily resides” connotes a regularly settled home and not a place of stay where the children are obliged to dwell by force of circumstances or compulsion of parents’ employment. But a minor can always retain the place of residence of his/her mother.

# Child Custody


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.Surendra Mohan & Mary Joseph, JJ.

O.P(FC).Nos.148 & 194 of 2016 & Matrimonial Reference No.1 of 2016

Dated this the 23 rd day of August, 2016

[AGAINST THE ORDER IN IA NO.753/2015 IN OP NO.573/2015 DATED 29.7.2015]

PETITIONER(S)

SALINI

BY ADVS.SRI.NIRMAL. S SMT.VEENA HARI

RESPONDENTS(S)

UMASANKARAN AND OTHERS

R1 BY ADV. SMT.SREEKALA KRISHNADAS

J U D G M E N T

Mary Joseph, J.

O.P(FC) No.148 of 2016 is filed by Smt.Salini, the petitioner in O.P.No.573/2015, who is the mother of a child, namely Adithya Shankar, challenging the order of the Family Court, Kozhikode dated 29.10.2015 in I.A.No.1249/2015 in O.P.No.573/2015. O.P(FC) No.194 of 2016 is filed by Sri.Umasankar, the petitioner in O.P.No.706/2015 on the files of the Family Court, Thrissur, who is the father of the child, challenging the order of the Family Court,Kozhikode dated 16.10.2015 in O.P.No.573/2015.

2. The Registry has received a communication from the Presiding Officer of Family Court, Kozhikode informing that as per its order dated 29.10.2015 in I.A.No.1249/2015, further proceedings in O.P.No.573/2015 was stayed under

# Section 14(1) of the Guardians and Wards Act, 1890

(for short ‘the Act’), on the reason of parallel proceedings pending before the Family Court, Thrissur as O.P.No.706/2015. The matter was reported under Section 14(2) of the Act to determine the Court having the authority to decide on the issue of custody of the child. When the matter was placed before the Judges in charge of the respective Judicial Districts, it was decided to place the matter on the Judicial side as suo motu Matrimonial Reference, and the same was approved by the Honourable the Chief Justice. Subsequently, the Presiding Officer of the Family Court, Thrissur had also reported the same matter to this Court for necessary direction as per Section 14(2) of the Act. Therefore, the matter has come up before us as Matrimonial Reference.

3. The permanent custody of a minor child namely Adithya Shanker, aged 3½ years was sought by Sri.Umasankar and Smt.Salini, his father and mother respectively in the Family Court, Thrissur and Kozhikode in two separate proceedings initiated as O.P.Nos.706/2015 and 573/2015. Admittedly, the minor child Adithya Shankar was born to them out of their marriage solemnised on 9.1.2010 at Karthika Kalyanamandapam at Mukkom, Kozhikode.

4. The couple spent their initial days of marital life happily and peacefully. Thereafter, the relationship got strained and accordingly, the parties started residing separately. It is in the said circumstances that applications have been moved under various forums seeking for appointment as the guardian of the minor child.

5. The pleadings of the parties in the respective O.Ps. are necessary to be dealt with before proceeding to decide on the issue of territorial jurisdiction of the family court to entertain an application seeking appointment of a guardian. The rival pleadings of the parties in the respective O.Ps. are contextually relevant. Those would reveal that the parties are consensual on certain aspects and those aspects alone need to be adverted to while dealing with the issue relating to territorial jurisdiction.

6. The pleadings of Sri.Umasankar in O.P.No.706/2015 are to the following effect:-

The marriage between himself and Smt.Salini was solemnised on 9.1.2010 at Mukkam auditorium at Arikkode, Kozhikode as per Hindu religious rites and ceremonies. He went abroad after 1½ months’ stay together and later on, she joined him. She got conceived and in the month of March 2011, left Gulf for delivery and gave birth to the minor boy child Adithya Shankar at Thiruvananthapuram on 04.10.2011. Thereafter, he returned to the country to celebrate the 28th day ceremony of the child. On the child attaining 6 months, she joined him at Dubai. After sometime, she obtained a job as Nurse at ICCONS, Hospital, Kavalappara, Shornur and left Dubai to join the job without his permission. Thereafter, the depth of their relationship started degrading for several reasons. Having been informed of allegations about the immorality of his wife, he rushed to the country in November 2014. When she was questioned about the allegations against her, she retorted and stated to him that she would continue her wayward life. He again visited the country on 14.4.2015 to shift the residence of his wife and his minor son to a flat at Poonkunnam, Thrissur owned by his sister to stay along with them. While continuing the stay there, the petitioner overheard the conversation of his wife with one Praveen and saw the photographs taken along with him. He questioned her about those aspects, but she responded to him badly and left the flat for residing with her parents. Thereafter, the child was staying with his father at the flat at Poonkunnam, Thrissur. He intends to take his son abroad and to admit him to a school there for education. In the circumstances, the original petition was preferred by him before the Family Court, Thrissur seeking permanent custody of his son.

7. The cause of action for preferring the original petition was stated to have originated on 9.1.2010, when the marriage of himself with the respondent was solemnised; further on 14.4.2015 when the petitioner last resided together with the respondent at Poonkunnam, Thrissur and thereafter, at Poonkunnam, Thrissur where the child continued his residence. Based on the cause of action as narrated above, it is contended that the Family Court, Thrissur has jurisdiction to entertain the original petition.

8. The pleadings raised by Smt.Salini in O.P.No.573/2015 before the Family Court, Kozhikode are to the following effect:-

The marriage of the parties was solemnised on 9.1.2010 at Karthika Kalyanamandapam, Mukkam, Mampatta situated near the paternal ancestral house of Smt.Salini as per Hindu religious rites and ceremonies. After the marriage, she along with her husband and her inlaws resided at a rented house at Ottappalam. After some time of the marriage, himself and her in-laws started ill-treating her both mentally as well as physically based on the poor financial background of her family. She was also accused of the insufficiency of the money and gold ornaments given to her at the time of marriage. After one month of the marriage, the first respondent left for Dubai and the ill-treatment continued by her in-laws. Therefore, she was constrained to shift to her parental home at Thiruvanananthapuram. She was taken to Dubai by her husband on 4.4.2010. She got conceived and left Dubai for delivery in the month of May 2011 and she gave birth to her son on 4.10.2011 at Thiruvananthapuram. Out of fear of ill-treatment, she did not join her inlaws, but continued her stay alternatively at Thiruvananthapuram and at her paternal ancestral home at Mukkam, Kozhikode. On 17.5.2012, she was taken to Dubai by her husband. Thereafter, except for short visits to the country at times, she stayed at Dubai along with her husband and child till January,2014. The next visit to Dubai was on 19.5.2014 for getting the visa renewed. Thereafter, she returned to the country on 18.6.2014. In the month of November 2014, her husband came on leave and stayed along with her and the child at her paternal ancestral home at Mukkam, Kozhikode. Her husband returned to Dubai in the month of December,2014. Out of fear of ill-treatment, she did not join her in-laws, but continued her stay either at her paternal ancestral home at Mukkam or at the parental home at Thiruvananthapuram. On 9.4.2015, as directed by her husband, herself and the child went to Thrissur and started residing along with respondents 2 to 5 who are her sister-in-law and children at 3B Omega Crown Flat, Thrissur. During the course of such stay, respondents 2 to 5 started raising allegations of immorality against her and on getting informed, her husband rushed to the country. After questioning, she was driven out from the flat by her husband. The child was detained in the flat. Thereafter, her husband left for Dubai after entrusting the custody of the child to respondents 2 to 5. On the very next day, the petitioner went to the flat at Poonkunnam, Thrissur to take the child. But, she was threatened by them and was driven out stating that the child was not with them. The child then was aged three and a half years and out of her pain and stress in living separated from him and for the purpose of admitting him in the nursery class, the custody of the child has become necessary and accordingly, the application was filed seeking to appoint her as his guardian.

9. The cause of action is stated to have originated on 9.1.2010, when the parties got married; further on 14.4.2015, when the child Adithya Shankar was detained unauthorisedly by respondents 2 to 5 in their flat at Thrissur and thereafter, within the limits of Pannikkode Amsom at Kozhikode wherein the parties cohabited last as husband and wife.

10. The law on the question of jurisdiction of a court to entertain an application for custody of a child is specifically incorporated in Section 9 of the Act. The relevant provisions are extracted hereinbelow for easy reference:-

# 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.

(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.”

Sub-section (1) of Section 9 specifically provides that an application with respect to the guardianship of the person of the minor shall be made to the District Court having jurisdiction over the place where the minor ordinarily resides. Similarly, sub-section (2) provides that an application with respect to the guardianship of the property of the minor is also to be made to the District Court having jurisdiction over the place where the minor ordinarily resides or the place where the property of the minor , if any, he is having, is situated.

11. The meaning of the word ‘ordinarily resides’ signifies dwelling in a place continuously for a certain period. Therefore, ordinary residence is something more than a temporary residence and it can be the ordinary residence of the parents in a case of themselves residing together or of either the parents as well in a situation when both parents are living apart. The Apex Court in

# Rosy Jacob v. Jacob Chakramakkal, (1973) 1 SCC 840

held that the controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents. The dictum in

# Hareendran Pillai v. Pushpalatha, 2007 (1) KLJ 842

is to the effect that when parties have permanent residence within the jurisdiction of a particular Family Court, that court can be taken to have jurisdiction to entertain a petition for custody.

12. In

# Jajabhai v. Pathankhan, (1970) 2 SCC 717

the Apex Court held that where the mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother, the mother could be considered as the natural guardian of the minor girl.

13. The dictum of the Apex Court in

# Smt. Jeewanti Pandey v. Kishan Chandra Pandey, AIR 1982 SC 3

is contextually relevant and is extracted hereinbelow:-

“In order to give jurisdiction on the ground of ‘residence’, something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the Court in which the respondent is sued, is his natural forum. The word ‘reside’ is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood in its ordinary sense of having one’s own dwelling permanently, as well as in its extended sense. In its ordinary sense residence is more or less of a permanent character. The expression ‘resides’ means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has a fixed home or abode. In Webster’s Dictionary, ‘to reside’ has been defined as meaning ‘to dwell permanently or for any length of time’, and words like ‘dwelling place’ or ‘abode’ are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change. If a person lives with his wife and children, in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides.”

A Division Bench of this Court in

# Vasu V. and others v. Muralidharan and others, 2009 (1) KHC 443(DB)

in a case wherein the father of a minor girl child aged 10 years, whose wife was no more, and the child was pursuing her education at Pune under the custody of her maternal grandparents, and in a circumstance, when the application seeking custody of the child came up for consideration before the Family Court at Palakkad on the ground of his residence there and the maternal grandparents of the minor girl resisted the claim contending that only the courts at Pune would have jurisdiction to entertain the issue as the child was residing there, held that, the court at Palakkad had jurisdiction to entertain the matter as the child’s natural father was residing at Palakkad. The court further held:-

“5. …………………………………………………………… ……………

The phrase “ordinarily resides” indicates ordinary residence even at the time of presentation of the application. The emphasis is undoubtedly on the minor’s ordinary place of residence.

6. ………………………………………………………………………………….

The question as to the ordinary residence of a minor is always to be decided on the facts and particulars of each case. Ordinarily, a child’s ordinary residence will be the place of residence of the parents. The mere fact that a minor child has to temporarily go outside the ordinary residence either for the purpose of continuing the education or because of the fact that the parents are temporarily employed else where by itself will not determine that place as the place of ordinary residence. In other words, ordinary residence must be something more than a temporary residence even though such residence is spread over a long period.

…………………..”

14. A ruling of the Division Bench of this Court in

# S. Prabhu v. Rajani R., 2007 (1) KHC 887

is also relevant in the context and is extracted hereinbelow:-

“5. The ordinary residence of the child can be the ordinary residence of the either of the parents as well in a situation where both the parents are living apart. ”

15. Sri.Nirmal, the learned counsel for the petitioner in O.P(FC) No.148 of 2016 during the course of his argument has also drawn our attention to the decision reported in

# Smt.Surinder Kaur Sandhu v. Harbax Singh Sandhu and another, AIR 1984 SC 1224

In that case, the Apex Court had the occasion to consider a case where a father of a minor, whose marriage was solemnised in India, the spouse being an Indian, and who had made England their home after marriage, later on rushed to India with the minor boy. In a writ petition filed by the mother then before the English High Court of Justice (Family Court), the court directed the father to hand over the custody of the minor boy to the mother or her agent forthwith. Armed with the order of the English High Court, the mother filed a writ petition before the High Court of Punjab and Haryana seeking for the production and custody of her minor son. The High Court dismissed her petition, which order was reversed by the Supreme Court in appeal by Special Leave and held as under:-

“10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict 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 the assumption of jurisdiction by another State in such circumstances will only result in encouraging forumshopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, 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; The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See

# International Shoe Company v. State of Washington (1945) 90 L Ed 95

which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case). It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.”

(emphasis supplied)

16. The dictum has relevance in the context on hand and can safely be accepted to draw a conclusion as to which court has territorial jurisdiction to decide the question. As in the case referred supra, the minor child along with his mother was shifted to Thrissur as directed by his father. In any view of the matter, the shifting to Thrissur and stay there at the house of the sister of the father cannot be said to be intended by the mother and the child. Apart from all the above, the stay was only for a period of short duration that too immediately prior to the preferring of O.P.No.706 of 2015 by Sri.Umasankar seeking permanent custody of the child before the Family Court, Thrissur. It can be deduced from his pleadings in the original petition filed by him that he intends to take the child to Dubai to pursue his education there. Therefore, the temporary stay at Thrissur may be perceived as an arrangement managed by the father of the child intending to get him in his permanent custody. The child being only three and a half years, the legal position also stands in favour of the mother when questions relating to custody are in issue.

17. The principles emanating from the various decisions supra on the point are enumerated and those would guide us to arrive at a finding about the jurisdictional issue involved in the case.

(1) The courts in seizin of issues relating to custody shall bear in mind that the welfare of the child is of paramount importance when the jurisdictional issue is under its consideration.

(2) Undoubtedly the child’s ordinary place of residence would be the place of abode of parents when he is in the company of them.

(3) Custody applications would normally come in circumstances of strained relationship of the parents and the consequent living of either of them separately; in cases of retention of the child by in-laws or other relatives after the death of either of the spouse; and in case of retention of the child by some of his relatives in a case where both his parents are not alive. Living apart can also be on reasons of one among the spouses being employed abroad or elsewhere in the country. In case of the spouses living apart, or are no more, the person with whom the child shares his residence for a considerably long period should be given preference by the court while dealing with custody applications.

(4) In case the parties have a permanent residence or a regular home and the child out of circumstances of compulsion of his education or parents’ employment is constrained to stay at different places, the court should see, the place where the permanent residence is built by the parties intending thereby to stay together lifelong would be of relevance while the jurisdictional issue is in seizin of a court.

18. The aspects referred supra are not exhaustive, but only illustrative indications. What emanates from the above is that in order to be ordinary residence, there must be more than a temporary residence and that must not have been occasioned out of circumstances of constraints. The deduction is that there cannot be any straight jacket formula that could be adopted by the courts dealing with issues of territorial jurisdiction in matters relating to custody of children or appointment of guardian for them. On the contrary, the guiding factors for the court should be the facts and circumstances of the case on its hand. The court must look into the facts and circumstances of each case to ascertain whether the minor whose guardianship or custody is in issue, is residing ordinarily in a particular place for the purpose of assumption of jurisdiction by a family court of that place. Therefore, the facts and circumstances of each case must be looked into, to ascertain whether a person can be said to be ordinarily residing at a given place. The expression “ordinarily resides” connotes a regularly settled home and not a place of stay where the children are obliged to dwell by force of circumstances or compulsion of parents’ employment. But a minor can always retain the place of residence of his/her mother.

19. The meaning of the words ‘ordinarily resides’ changes and is capable of being understood differently according to the circumstances to which it is made applicable. It is not the duration of stay, that matters but the intention of the parties. But, in the case of a minor he cannot be taken to have any independent intention to reside at a particular place during his age of minority. Therefore, his intention can only be that of his/her parents and if they are living separated, then either of them with whom he/she was residing, immediately prior to the preferring of the application for appointment as guardian. In case the parents are not alive, the place of the person in whose custody he/she is or who is showing more concern about his/her welfare and upbringing, would be of relevance while deciding the question of jurisdiction of the court based on territory. The decisions referred supra would also give an indication that the court while considering the custody application filed by a party has to arrive at a finding about the place of ordinary residence of a minor based on the attendant circumstances brought forth by the parties in the form of pleadings.

20. In the backdrop, the circumstances available in the case on hand, made available by either parties to the application seeking custody have to be looked into. Since the issue involved is relating to appointment of guardian for the minor, the place where the minor ordinarily resides only has relevance. We have already said, being a minor, he cannot be presumed to have any independent place of residence apart from that of his parents or persons in whose custody he was at the relevant time of applying for the purpose. In the case on hand, evidently, the parents of the minor have no permanent common place of abode. It is also an admitted fact that the father of the minor boy is employed at Dubai and accordingly, was a resident there. The pleadings elucidate the reality that the minor, during his three and a half years of life span, has been shifted from place to place for one reason or the other. It can be deduced from the rival pleadings of the parties that immediately prior to the filing of the applications, while the husband was on leave, the parties resided along with the minor at Kozhikode and only on 9.4.2015 as directed by the former, the wife and the child moved to Thrissur to stay at the residence of the sister of the former.

21. Admittedly, the marriage was solemnised at an auditorium at Mukkam, Kozhikode and their permanent place of abode was not in the country. Smt.Salini has no plea in O.P.No.573/2015 regarding the place where herself and her husband stayed immediately after their marriage. But, a specific plea in that regard is there for Sri.Umasankar in O.P.No.706/2015 that they had stayed along with his family members in a rented house at Shornur for one and a half months. Sri.Umasankar has no plea in O.P.No.706/2015 regarding the place where his wife stayed while he was abroad. The pleadings drive us to the fact that after their initial stay at the country, Sri,Umasankar left for Dubai leaving Smt.Salini with his inlaws. Smt.Salini has a case that due to the ill-treatment faced at the matrimonial home after her husband left for Dubai, she had shifted her stay along with her parents at Thiruvananthapuram. It is also her case that after one and a half month’s stay in the country, she joined her husband at Dubai. They stayed together and on getting conceived she returned therefrom to the country for delivery. She delivered the child at Thiruvananthapuram. Sri.Umasankar had only pleaded in O.P.No. 706/2015 about the intermittent periods of stay for which he was available in the country. He has not pleaded about the place of stay of Smt.Salini and his son in the country during the period of his stay abroad. But, he had pleaded specifically in the application that in the month of April, 2015, on his request, his wife and son moved to the flat at Poonkunnam, Thrissur owned by his sister to stay along with herself and her family members. Indisputably, the stay of Smt.Salni and the minor at Thrissur was immediately prior to the filing of the respective applications and lasted only for a few days. According to Sri.Umasankar, there were allegations of immorality against Smt.Salini and on questioning those, she left the flat at Thrissur. According to Smt.Salini, based on the allegations of immorality, she was ill-treated by her sister-in-law and husband and was thrown out from the flat at Thrissur. Both parties have not stated anything in the respective original petitions, where Smt.Salini stayed thereafter. But, it is seen from the description of the cause of action in O.P.No.573/2015, that the parties cohabited together with the child lastly at Pannikode in Kozhikode Taluk, within the territorial limits of Family Court, Kozhikode whereas, O.P.No.706/2015 is silent regarding the place of their last stay together and cohabitation.

22. Sri.Umasankar in O.P.No.706/2015 claims jurisdiction for Family Court, Thrissur to entertain the issue regarding the guardianship based on the sole fact that the parties resided together with the child lastly in a flat at Thrissur. But, it is pertinent to note from his own averments that the shifting of the stay of his wife and child to the flat at Thrissur was only on 9.4.2015. It is his admitted case that at the relevant time, he was abroad. It is also his plea that on 14.4.2015, he returned to Thrissur to join his wife and child, but she left the place on the same day. It is discernible from the pleas that the stay of his wife and child at Thrissur was only for a period of very short duration of six days and cohabitation was not there even for a single day. It can also be drawn from the pleadings in O.P.No.706/2015 that Sri.Umasankar left for Dubai on the succeeding day of her departure from the flat at Thrissur, leaving the child with his sister and her family members. It could safely be concluded from the aforesaid aspects that the stay of the child at Thrissur was only for a temporary short period and that too as directed by the father and not as intended either by the child or his mother. It is not clear from the pleadings in either of the original petitions, the place from which the wife and the child were asked to shift their stay to Thrissur. But, it is discernible from the description of the cause of action in O.P.No.573/2015, that the parties last resided with the child and cohabited at the paternal ancestral house at Kozhikode. Since the parties have no place of permanent abode at Thrissur and in view of the fact that the flat at Thrissur is not owned by either of the parties, the family court at Thrissur, by no stretch of imagination can be said to have territorial jurisdiction to entertain O.P.No.706/2015. In view of the plea of Smt.Salini in O.P.No.573/2015, to the effect that the marriage of the parties was solemnised in a Kalyanamandapam at Kozhikode, that the parties had stayed with the child and cohabited immediately prior to the filing of the original petitions at the said place, it is the Family Court, Kozhikode that has territorial jurisdiction in the matter of deciding the question of appointment of a guardian for the child.

23. In view of the aforesaid discussions, we are of the view that the Family Court, Kozhikode, which is in seizin of O.P.No.573/2015 has got territorial jurisdiction to decide the issue relating to appointment of the guardian of the child. The F.C., Thrissur has no jurisdiction to consider O.P.No.706/2015 and to decide on the issue of the permanent custody of the minor. The Matrimonial Reference is answered accordingly.

In view of the answer of the Matrimonial Reference as aforesaid, O.P.(FC) Nos.194/2016 and 148/2016 are dismissed. Parties shall bear their respective costs.

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