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
