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2020 Supreme(Mad) 1489
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
Petitioner
Versus
Respondent
A. No. 7197 of 2019 in O.P. No. 474 of 2018
Decided on : 14-10-2020
The main legal point established in the judgment is the interpretation of 'ordinarily residing' as provided in Section 9(1) of the Guardians and Wards Act, emphasizing the distinction between 'ordinarily residing' and 'permanently residing' and considering the intention of the parties in choosing their place of residence.
Headnote:
Jurisdiction - Guardianship of Minor - Guardians and Wards Act - Section 9(1) - The court discussed the issue of whether the minor children were ordinarily residing within the jurisdiction of the court as provided in Section 9(1) of the Guardians and Wards Act. The court emphasized the distinction between 'ordinarily residing' and 'permanently residing' and considered the intention of the parties in choosing their place of residence. The court referred to various judgments to analyze the concept of 'ordinarily residing' and concluded that the minor children were not ordinarily residing within the jurisdiction of the court, as they had been continuously residing in France for over 6 years and were enrolled in schools there since 2013. The court held that it lacked jurisdiction to decide on the custody of the children.
Fact of the Case:
The respondent filed a petition for permanent custody of two minor children, claiming that the court had jurisdiction as the children had shifted from Belgium to settle permanently in India. The applicant filed an application to reject the petition, arguing that the court lacked territorial jurisdiction and that the petition was an abuse of process, as the parties had submitted to the jurisdiction of the French courts.
Finding of the Court:
The court found that the minor children were not ordinarily residing within its jurisdiction, as they had been continuously residing in France for over 6 years and were enrolled in schools there since 2013. Therefore, the court held that it lacked jurisdiction to decide on the custody of the children.
Issues: The main issue was whether the court had jurisdiction to decide on the custody of the minor children, considering their ordinary residence as provided in Section 9(1) of the Guardians and Wards Act.
Ratio Decidendi: The court emphasized the distinction between 'ordinarily residing' and 'permanently residing' and considered the intention of the parties in choosing their place of residence. It analyzed various judgments to interpret the concept of 'ordinarily residing' and concluded that the minor children were not ordinarily residing within the jurisdiction of the court.
Final Decision: The court allowed the application to reject the petition on the ground of want of jurisdiction, holding that it lacked jurisdiction to decide on the custody of the children.
JUDGMENT :
1. This application for rejecting the petition has been filed by the respondent in the petition filed for permanent custody of two of the minor children of the petitioner and the respondent. This petition has been filed on the ground that this Court is not vested with the Jurisdiction to try the petition as the ordinary residence of the minors is at France, where already proceedings are pending between the petitioner and the respondent for divorce as well as custody of the children. Before proceeding to discuss the application, it is necessary to briefly narrate the facts as stated in the petition.
Case of the respondent/petitioner:
2. It is the case of the respondent/petitioner that he and the applicant herein had got married at France on 02.09.1995 and out of this wedlock they were blessed with three children. The petition is filed with reference to the second and third child as the eldest has attained majority. The respondent would contend that both he and the applicant were orphans born in India in the year 1966 and 1969 respectively and the respondent was adopted by a Belgian couple, whereas the applicant was adopted by a French couple. The applicant and the respondent met at Belgium and ultimately got married at France.
3. In December 1995, they had travelled to Puducherry tracing their roots and on arrival they decided to settle in India. All the three children were born at Belgium. The eldest daughter was born on 07.10.1999, the second son was born on 24.07.2001 and the last daughter was born on 07.07.2004. The petitioner was gainfully employed there and he had purchased an house at Belgium in the year 2003.
4. The applicant had lost her father in the year 2004 and it is the case of the respondent that thereafter his mother-in-law started getting very possessive and overbearing. In the year 2008, Auroville had celebrated its 40th anniversary. The applicant and the respondent had joined the celebrations at Paris and the applicant expressed her strong desire to settle down in Auroville. The desire was so strong that the respondent had started making arrangements to permanently reside in India. As a consequence of this the applicant and the respondent had come out to Auroville between July - August 2010 and in January 2011 they had enrolled their children at Deepanam School at Auroville.
5. In February 2011, they had taken steps to obtain the Overseas Citizens of India certificate for all the children. Originally the OCI stamping was done for the children in their Belgium Passports and thereafter this was cancelled and the OCI stamping was affixed in the French Passports as approaching the French Embassy at Puducherry was easier. The respondent had got life long Visa in his Belgium passports and the applicant got a life long visa on her French passport. The children were also given a lifelong visa. The respondent sold his house at Belgium in July 2012 and the family moved to India in the same month. The intention to permanently settle down in India was fortified by the fact that they had only taken a one way ticket.
6. In August 2012, the children had started school and all the three of them enjoyed their School at Auroville. The applicant had also confirmed their continuance for the next academic year i.e., 2013 - 2014. In March 2013, the applicant had suggested that the family spend their holiday in Europe both at Belgium and France. The applicant herein had booked a two way ticket and the family was supposed to return on 11.06.2013 to India. However, all of a sudden things went haywire and the applicant for reasons best known to her, refused to move to India and accused the respondent of kidnapping children though the children had been spending the holiday with him at Belgium. The applicant had also lodged a letter with the French office for protecting the minors and to take immediate steps to ensure that the children are not moved to India. The respondent on hindsight thinks that the applicant had decided even whi
