The assessment of jurisdiction for custody of minors requires establishing their ordinary residence, determined by consistent living situations rather than temporary stays.

J U D G M E N T

A.M.Shaffique, J.

This original petition has been filed challenging the order dated 22.12.2016 in I.A.No.2136/16 in O.P.No.564/16. The original petition was filed by the petitioner herein seeking custody of the minor children invoking Section 9 of the Guardians and Wards Act, 1890 . Respondent filed I.A.No.2136/16 seeking for raising a preliminary issue relating to territorial jurisdiction of the court. The court having considered the matter, observed that the court at Ettumanoor, Kottayam has no jurisdiction to entertain the petition. It is impugning the aforesaid order that this original petition is filed.

2. Learned counsel for the petitioner submits that the court below has not considered the matter in its proper perspective. It is contended that the question of territorial jurisdiction is a question of fact and law which has to be decided on the basis of pleadings and evidence in the case and therefore, the court ought to have considered the issue, only after completion of pleadings and recording of evidence. Learned counsel also placed reliance upon the judgment of this Court reported in Salini v. Umasankaran (2016(4) KLT 1068) to narrate the manner in which the words 'ordinarily resides' had been considered by this Court.

3. The short question to be considered in this original petition is whether the Family Court was justified in deciding the maintainability of the issue as a preliminary issue and secondly, whether the findings of the Family Court were justifiable.

4. Perusal of the averments in the petition would show that neither the petitioner nor the respondent was ordinarily residing within the jurisdiction of the court at Kottayam. In paragraph 9 of the original petition itself it is stated that the couple along with the family were residing at Bombay and thereafter in Dubai. In paragraph 9 it is stated that on 4.4.2016, the petitioner had come back to his native place. The respondent was employed in Dubai and as the said company had an associate company at Hyderabad, her plan was to join that company and work there. The respondent had gone to Bombay on 17.4.2016 and joined the Hyderabad company on 18.4.2016. At the relevant time, the children were with the petitioner at their parental house at Changanassery. On 26.4.2016, when the petitioner called the respondent, she was not available. It is further alleged that on 30.4.2016, the respondent had come to Changanassery and without the consent of the parents of the petitioner and the petitioner, the children were taken to Hyderabad, offering to bring them back within one week. This being the allegations, the question to be considered is based on Section 9 (1) of the Guardians and Wards Act, 1890 , which reads as follows:

"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."

5. The question to be considered is whether the minors were ordinarily residing within the jurisdiction of the Family Court at Ettumanoor. The only incident of residence of stay is after leaving the employment by the couple, they have come from Dubai and stayed at the petitioner's family house for a brief period. Even the petitioner's wife had taken custody of the children prior to the institution of the proceedings and the minors are now with the mother at Hyderabad. Children are also studying at Hyderabad. Merely for the reason that the minors had resided at their parental home for a brief period, does not mean that they were ordinarily residing at that place and the court at Ettumanoor will have the jurisdiction to entertain the original petition. Primarily they were residing at Bombay, thereafter at Dubai and presently at Hyderabad where the children are studying. It is taking note of these factors, the Family Court had observed that the said court has no jurisdiction. We do not find a