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Family Court has no Jurisdiction to decide NRI Child Custody

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

Dated this the 14th day of December 2016

Present
THE HON’BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
And
THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

Miscellaneous First Appeal No.22302/2013 (G & WC) Between

Dr. Mrs. Mashmoom,
W/o Sajid Peerzade,
Age: 37 years, Occ: Doctor,
R/o Near Bhosale Office,
Nehru Nagar, Pimpri, Pune,
Now Residing at Hashmuddin,
S/o Nabisaheb Zubda,
Park, C-1, Flat No.104, Talao
Pali Road, Near Shimla Park,
Kausa, Mumbara, District: Thane. …Appellant
(By Sri Sanjay S.Katageri, Advocate)

And:

1. Mr. Sajid, S/o Ustad Mohsin
Hayatpeer Peerzade,
Age: 46 years, Occ: Service in Doha Qatar, R/o Plot No.210, 1st Stage,
Rani Channamma Nagar, Belgaum.
Now residing at Doha Qatar,
Post Box No.2458, Q.P.Staff No.12879,Doha Qatar (Arab – Gulf).

2. Mumari Sarah, D/o Sajid Peerzade,Age: 7 years, Occ: Student,

3. Kumar Mahed, S/o Sajid Peerzade,Age: 10 years, Occ: Student,
(Since Respondents No.2 and 3 are Minor R/by Natural Guardian Father Respondent No.1 herein.). …Respondents
(By Sri Srinand A. Pachhapure, Advocate for R1)

This appeal is filed under Section 47(b) of Guardians and Wards Act, 1890, against the judgment and order dated 10.04.2013 passed in G & WC No.11/2012 on the file of the Family Court, Belgaum, petition filed under Section 9 of the Guardians and Wards Act, 1890 is hereby returned to the petition to present before the jurisdictional Court. This appeal coming on for Admission this day, SREENIVAS HARISH KUMAR, J, delivered the following:

JUDGMENT

The appellant is the wife of respondent No.1. She made a petition under Sections 7 and 8 of the Guardians and Wards Act, 1890, in the Family Court at Belgaum, seeking custody of minor children i.e. respondent Nos.2 and 3. Respondent No.1 contended that the Family Court had no jurisdiction to entertain the petition in view of the fact that the minor children were residents of Doha Qatar. The Family Court decided the question of jurisdiction and held that it did not have the jurisdiction and accordingly, passed an order on 10.04.2013. This order is under challenge in this appeal.

2. Heard the learned counsel for the appellant and also the respondents.

3. The learned counsel for the appellant argues that the Court below has committed an error in holding that it does not have the jurisdiction to entertain the petition for custody of the minor children. His argument is that on the day when the petition was presented, the children were very much residing at Belgaum. The appellant produced number of documents in proof of residence of the children at Belgaum. Instead of considering the said documents, the Family Court held that the children are ordinarily residents of Doha Qatar and therefore, Family Court, Belgaum, does not get the jurisdiction to decide the petition. According to him, the Family Court should have held that the minor children were residing at Belgaum on the day when the petition was presented and hence, this order needs to be set aside.

4. On the other hand, the learned counsel for the first respondent argues that as the children are staying at Doha Qatar, they are ordinarily residents of Doha Qatar and the Family Court was right in holding that it does not have the jurisdiction to entertain the petition for custody of the children.

5. The Family Court has referred to Section 9 of the Guardians and Wards Act, 1890. On reading of the Section, it can be noticed that the application must be presented before the Court having jurisdiction in the place where the minor ordinarily resides. The word ‘ordinarily’ has got such a meaning that it rules out temporary residence of the children. In this case, the children were born at Doha Qatar and are pursuing their studies at that place only. If they had come to Belgaum at the time when the marriage between the appellant and the 1st respondent was dissolved, it does not mean that they are ordinarily residents of Belgaum. This being the position, it has to be now said that the Family Court has rightly held that it has no jurisdiction to entertain the petition. We do not find any infirmity or illegality in the said order. Therefore the following Order: Appeal is dismissed.

Sd/-
JUDGE

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