ORAL ORDER

The present Writ Petition is filed aggrieved by the order passed in I.A.No.16 in G & WC.No.120/2017 dated 06.07.2022 by the IV Addl. Principal Judge, Family Court, Bangalore, the petitioner/father is before this Court.

2. The parties are referred to as husband and wife for the sake of convenience.

3. The facts of the case are that the respondent No.1/mother had filed G & WC.No.120/2017 seeking custody of the daughter. It is her case that she was residing along with her husband in US and they are blessed with a daughter and as the husband subjected her and her infant daughter to mental and physical abuse, due to which they were subjected to cruelty at the hands of the petitioner/husband. He deserted her and finally left with no other option she was forced to come to India along with the minor child and since April 2016, she is living along with her parents at Bangalore within the jurisdiction of the Court. She is well qualified, employed and taking good care of her minor daughter, who is aged 5 years, going to a Montessori school. The petitioner/husband had written a mail to her on 23.09.2016 threatening to take away the child from her as such it made her to file this petition seeking custody of the minor daughter.

4. On 03.10.2018, the petitioner/husband had filed the present application under Order 7 Rule 11 of CPC to reject the petition. It is the case of the petitioner/husband that the respondent/wife had filed her petition seeking custody of the minor daughter with suppression and misrepresentation of the facts. The child is a US citizen and holds a valid citizenship and India is not an ordinary place of residence for the child as such the Courts at Bangalore have no jurisdiction and in the light of the judgment passed by the Foreign Court that the present G & WC itself is not maintainable. It is the case of the petitioner/ husband that he had filed a petition for divorce and also permanent custody of the minor daughter before the Court at Anne Arundel County, Maryland Court which is a proper and jurisdictional Court and also the permanent domicile of the child. On 20.07.2017, the Court had passed a judgment by granting decree of divorce and also further ordered that the custody of the child shall be given to the father. The wife was served with the notice of the Court, the wife without contesting the matter choose to flee from USA and suppressing the fact that the custody is already given to the father and also divorce is obtained, the present petition is filed. It is stated that as Bangalore is not the ordinary place of residence for the minor, the application is not maintainable. Further, already there is an order of the Foreign Court which is binding on the Family Court and even on that count also as it is barred by Law and it is not maintainable and accordingly, came up with this application to reject the plaint. The Trial Court by impugned order had dismissed the petition. While dismissing the said petition, the Trial Court had considered the judgment relied on by the petitioner/father. The Trial Court is of the opinion that as the mother and the daughter are now residing within the jurisdiction of the Court, the Court has every right to try the matter in connection to the legal custody of the ward in the better interest of the child. Apart from that at the time of passing the orders by the Foreign Court, the petitioner and the child were not at all residing in the said country. On the other hand, the interest of the ward is a matter which has to be investigated in the present petition which is filed before the Court in the native place of the ward where it is now residing with her mother. The Trial Court has come to the conclusion that the Court has jurisdiction to investigate the matter by way of enquiry in the petition and accordingly, rejected the application filed by the petitioner/father.

5. Learned counsel appearing for the petitioner/father submits that the Trial Court had failed to consider the appl