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Syamili. P.L vs Ragesh M.R on 8 January, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940

OP (FC).No. 653 of 2018

G.O.P.NO.378/2018 of FAMILY COURT, IRINJALAKUDA

PETITIONER:
SYAMILI. P.L.,
AGED 27 YEARS,
W/O.RAGESH, RESIDING AT PUNCHAYIL HOUSE,
PARAVOOTHARA P.O., PARAVUR, PIN-683 520

BY ADVS.
SMT.MINI.V.A.
SMT.BHAMA G. NAIR

RESPONDENT:
RAGESH M.R.,
AGED 32 YEARS,
S/O. RAVI, RESIDING AT MAMBULLI HOUSE,
P.O.CHENGALOOR, MUKUNDAPURAM TALUK, PIN-680 312

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 08.01.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No. 653 of 2018 : 2 :

JUDGMENT

T.V.ANILKUMAR,J.

The respondent in G.O.P.No.378/2018 before the Family Court,

Irinjalakkuda is the petitioner herein. Her husband filed the said

G.O.P. claiming permanent custody of the minor child born to the

spouses.

2. The grievance of the petitioner herein is that, the Family

Court before which the maintainability of the O.P. based on lack of

territorial jurisdiction was raised, failed to decide I.A.No.2564/2018

and instead, it proceeded to consider the request of the respondent

herein for interim custody of the minor child, in I.A.No.3267/2018

filed by him at a later point of time. Therefore, the petitioner seeks a

direction to be issued to the Family Court, Irinjalakkuda to take up

I.A.No.2564/2018 forthwith and decide it as a preliminary issue after

keeping I.A.No.3267/2018 in abeyance.

3. Notice to the respondent in this Original Petition was

dispensed with in view of the limited relief we proposed to grant to

the petitioner.

4. There are a few litigations between the parties pending
OP (FC).No. 653 of 2018 : 3 :

before the Family Court, Ernakulam. The wife has already filed

M.C.No.190/2018 and O.P.No.1137/2018 before the Family Court,

Ernakulam. O.P.No.387/2018 filed for divorce by the husband was

pending for some time before the Family Court, Irinjalakkuda which

was, on the application of the wife for transfer made to this court, later

transferred to Family Court, Ernakulam. The only proceeding that is

now pending before the Family Court, Irinjalakkuda is

G.O.P.No.378/2018 filed by the respondent in this O.P.

5. The contention of the wife, the petitioner herein, is that the

Family Court, Irinjalakkuda lacks territorial jurisdiction to decide the

issue regarding permanent custody of the child in as much as the

place where the child resides is in Paravur, which is within the

jurisdiction of the Family Court, Ernakulam. The G.O.P.No.378/2018

is therefore assailed as not maintainable before the Family Court,

Irinjalakkuda.

6. A report called for from the Family Court, Irinjalakkuda by

this Court and submitted on 22.12.2018 was perused. It discloses

that I.A.No.3267/2018 filed for interim custody of the child was already

taken up and closed on 19.11.2018 by the Family Court, Irinjalakkuda

after giving a day’s custody of the minor child to the father/respondent
OP (FC).No. 653 of 2018 : 4 :

herein. The learned Family Court, Judge, Irinjalakkuda has also

submitted that I.A.No.2564/2018 seeking to decide the maintainability

of the O.P. based on the objection of the territorial jurisdiction could

not be taken up for consideration, only because copy of the petition

was not given to the opposite party and otherwise it would only have

been taken up and decided at appropriate point of time.

7. The report further indicates that, subsequent to closure of

I.A.No.3267/2018, the husband filed another I.A.No.3486/2018

seeking interim custody of the child during Christmas vacation and

that is now kept pending by the Family Court in view of the pendency

of this O.P.(F.C) before this court. The learned Judge has also

observed that I.A.No.2564/2018 would certainly be decided after

hearing parties on or before 15.1.2019.

8. After perusing the materials on record, we are also of the

view that when the objection on the ground of lack of territorial

jurisdiction is raised, it ought to be decided as a preliminary issue,

depending on the facts of the case. Section 9 of the Guardians and

Wards Act, 1890 provides that the claim for permanent custody can be

examined only by a court within whose jurisdiction the minor

ordinarily resides. This may be some times a mixed question of fact
OP (FC).No. 653 of 2018 : 5 :

and law or otherwise depending on the facts and circumstances of

each case. The lower court, in our view, should have addressed the

issue of maintainability when objection to territorial jurisdiction was

canvassed before it. The respondent was also aware of the institution

of I.A.No.3267/2018 from the objection dated 27.11.2018 filed to

I.A.No.3207/2018. In any view of the matter, the lower court is bound

to hear the parties on I.A.No.2564/2018 and to decide the issue of

maintainability of G.O.P.No.378/2018, based on the objection

challenging the territorial jurisdiction of the Family Court, Irinjalakkuda,

in accordance with law, before taking up any other proceedings for

adjudication.

In the circumstances, the original petition is allowed directing the

Family Court, Irinjalakkuda to take up I.A.No.2564/2018 as

immediately as possible and dispose it of in accordance with law on or

before 15.1.2019, as undertaken by it.

Sd/-

C.K.ABDUL REHIM
JUDGE

Sd/-

T.V.ANILKUMAR,
JUDGE

Bb
OP (FC).No. 653 of 2018 : 6 :

APPENDIX

PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE G.O(P) NO. 378/2018
PENDING BEFORE THE FAMILY COURT,
IRINJALAKKUDA

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 8/8/2018 OF
THIS HON’BLE COURT IN TR.PC. NO. 397/2018

EXHIBIT P3 TRUE COPY OF THE I.A. NO. 2564/2018 ALONG
WITH AFFIDAVIT.

EXHIBIT P4 TRUE COPY OF THE APPLICATION I.A. NO.

3267/2018 ALONG WITH AFFIDAVIT DATED
1/11/2018

EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER IN I.A. NO. 3207/2018

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 20/12/2018 IN
I.A.NO.3486/2018 IN G.O.P.NO.378/2018, OF
THE FAMILY COURT, IRINJALAKKUDA.

RESPONDENT’S EXHIBITS:

NIL

//True Copy//

P.A. To Judge

Bb

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