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:-