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2022 Supreme(Ker) 89
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. MUHAMED MUSTAQUE, SOPHY THOMAS, JJ.
Dr. Munawar Dhanish Mohammed, S/o. C.H. Mohammad - Appellant
Versus
Dr. Sanila Rahim, D/o. K.H. Rahim - Respondent
Mat. Appeal No. 737 of 2021
Decided On : 28-01-2022
For the Appellant : Atul Sohan, Vinai John, Sreeja Sohan K., K.V. Sohan.
For the Respondent: A. Jayasankar, Baby Nandini (Caveator), K. Baby Nandini K., Manu Govind.
Point of Law: In a petition for guardianship and custody, the paramount consideration is the welfare of the child. The child being a ten year old boy, he may have his own opinion or preferences, which the Family Court shall take into account, while deciding the welfare of the child.
Headnote:
Guardian & Wards Act, 1890 - Section 9(1) - Guardianship of Minor - Challenged - Jurisdictional issue -Petition with respect to guardianship of person of minor shall be made to District Court having jurisdiction in place where the minor ordinarily resides - He contended that minor ordinarily resides within jurisdiction of Family Court - Wife opposed that petition contending that, their relationship became strained due to illicit relationship of husband, and they decided to divorce their marriage, agreeing to give permanent custody of the child with her, providing visitation right to father - Thereafter, she resigned her job and came back to her paternal house, along with the child intending to have their permanent residence there- She made arrangements for admitting child in her district, and she was searching for a job in a nearby place - Whether there is any illegality or impropriety in impugned order, to be interfered with by this Court.
Finding of the Court:
Learned counsel for respondent contended that a Divorce O.P filed by the wife also is pending before the Family Court -Moreover, being a lady, taking into account convenience of parties also, it is better to continue case before the Family Court- Regarding jurisdictional competence of a court, convenience of parties will not confer jurisdiction on the court - Since appellant and respondent reached a consensus to separate and to keep child under care and custody of mother, place of residence of mother shall be treated as the ordinary place of residence of child -Court find no ground to interfere with finding of lower court.
Result: Appeal dismissed
JUDGMENT :
Sophy Thomas, J.
This appeal is directed against the order in I.A. No.5 of 2021 in O.P. No.186 of 2021 on the file of Family Court, Muvattupuzha.
2. The dispute in O.P. No.186 of 2021 is regarding the guardianship and custody of the minor child born in the lawful wedlock of the petitioner and the respondent. The wife filed the above O.P. to declare her as the legal guardian of her minor son Izaan Munawar and to direct the husband to restore custody of the child with her.
3. The husband filed I.A. No.5 of 2021, challenging the jurisdiction of the Family Court, Muvattupuzha. According to him, as per Section 9(1) of the Guardian & Wards Act, 1890, a petition with respect to the guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. He contended that the minor ordinarily resides at Kasaragod within the jurisdiction of Family Court, Kasaragod and so, the Family Court, Muvattupuzha is not competent to entertain that O.P.
4. The wife opposed that petition contending that, their relationship became strained due to the illicit relationship of the husband, and they decided to divorce their marriage, agreeing to give permanent custody of the child with her, providing visitation right to the father. Thereafter, she resigned her job at Mangalore and came back to her paternal house at Muvattupuzha, along with the child intending to have their permanent residence there. She made arrangements for admitting the child in her district, and she was searching for a job in a nearby place. Meanwhile, the minor was taken to Kasaragod by the husband on 24.12.2020, undertaking to return the child on 15.01.2021. Since he did not keep his word, she had to approach the Family Court, Muvattupuzha.
5. The Family Court, Muvattupuzha, after hearing the rival contentions and on considering Exts.A1 to A5 from the part of the petitioner and Exts.B1 to B12 from the part of the respondent, dismissed I.A. No.5 of 2021, finding that the minor Izaan Munawar ordinarily resides at Muvattupuzha and hence Family Court, Muvattupuzha has got jurisdiction to try that case. The petitioner/father has come up with this appeal, challenging the impugned order.
6. Now the point that arises for consideration is whether there is any illegality or impropriety in the impugned order, to be interfered with by this Court.
7. Learned counsel for the appellant-husband contended that, the child ordinarily resides at Kasaragod and all his documents such as passport, Aadhar card, ration card etc. are in his Kasaragod address only. He is studying in a school at Mangalore and he has to continue his education there. His father, who is a doctor, is working at Kasaragod and the child is very much attached to his father's family at Kasaragod. So, the Family Court, Muvattupuzha has no jurisdiction to entertain the O.P. going by Section 9(1) of the Guardian and Wards Act.
8. The respondent-wife vehemently opposed the petition contending that, when their matrimonial relationship became strained, with the intervention of parents and relatives, they reached a consensus for divorce. As part of the consensus arrived at, the child was agreed to be with the mother permanently till he completes his schooling, reserving access and visitation right to the father. Accordingly, she shifted from Mangalore to her native place at Muvattupuzha, along with the child, intending to reside there permanently. She made arrangements for admitting the minor child in a school in her district and to procure a job for her in a nearby place.
9. In compliance with the consensus arrived at between the parties, the father took the child to his house at Kasaragod during Christmas vacation, agreeing to return the child on 15.01.2021. So, according to her, the child was intended to be with her permanently at Muvattupuzha, and the custody of the child and the short stay of the child with his father at Kasaragod will not take away the jurisdicti
