Court In Area Where Minor Ordinarily Resides Has Jurisdiction In Guardianship Case, Citizenship Of Child/ Parents Has No Bearing: Kerala High Court

The Kerala High Court recently held that an application with respect to the guardianship of a minor has to be made to the District Court having jurisdiction in the place where the "minor ordinarily resides".

A Division Bench consisting of Justice A Muhamed Mustaque and Justice Sophy Thomas observed that citizenship or domicile of the father of a child, or the fact that rightly or wrongly the child had acquired a foreign passport, will have no bearing in determining the jurisdiction.

"A court exercising parens patriae jurisdiction is not concerned about the origin or citizenship of the child or his parents. The paramount consideration of the court is the welfare of the child."

The observation was made while deciding the appeal preferred by the father of the child against a Family Court's order dismissing his application for guardianship.

The appellant and his Keralite wife (respondent) got married in 2008 and a boy child was born in their wedlock. However, due to the relationship becoming strained because of incompatibility of nature and temperament, they had been living separate since 2012.

The wife alleged matrimonial cruelties against her husband in the divorce petition filed by her before the Family Court in Kollam (where she now resides with the child), which was disallowed and a decree for restitution of conjugal rights was passed, which was not honoured by the wife.

The father, a British citizen, had filed a petition before a court in Kaloor, place of matrimonial home, for getting the guardianship of his minor son. The same was transferred to the court in Kollam. The plea was eventually dismissed.

Hence, cross-appeals were filed.

The Appellant-father challenged the jurisdiction of the Family Court, Kollam in dealing with the original petition for guardianship. He contended that since he is the father and natural guardian of the child, the domicile of the child will be that of his father. It was also alleged that Indian passport and Aadhar card of the child were acquired deceitfully, suppressing the fact that the child was a British citizen holding British passport.

The Court remarked that the question of jurisdiction was not a matter of challenge before the Family Court. Further, the father had himself acknowledged the fact that the ordinary place of residence of the child was at Kaloor. Thus, it held that he cannot challenge the jurisdictional competence of the court which he himself opted, based on real facts, and the law applicable.

"Going by Section 9 of the Guardians and Wards Act, 1890, an application with respect to the guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. In the case on hand, at the time of filing the O.P, the ordinary place of residence of the minor child was at Mayyanadu, Kollam, the paternal house of the mother," the Court added.

On the allegations of wrongfully acquiring Indian passport, the Court observed,

"The child was born in Kerala on 04.08.2011 to an Indian citizen and since birth, he was living in Kerala along with his mother. Section 3 of the Citizenship Act, 1955, says that a person born in India on or after the commencement of the Citizenship (Amendment) Act, 2003 (3rd December 2004) is considered citizen of India by birth, if both the parents are citizens of India, or one of the parents is a citizen of India and the other is not an illegal migrant, at the time of his birth. So also, the contention of the father that since the child is a British citizen, the Family Court, Kollam was not competent to entertain the O.P (G&W), is not tenable."

It added it may be true that, the minor child is holding a British passport being the son of a British National. At the same time, he was born in India to an Indian citizen, and since birth, he is living in India with his mother.

The Court referred to Rajkumar Sasidharan vs. Superintendent of Police, Trivandrum and others (2022 (1) KHC 241, where a Division Bench of the High Court held that for the sole reason that the child is a U.S citizen, the jurisdiction of the Family Court at Thiruvananthapuram cannot be denied, when the minor was ordinarily residing at Thiruvananthapuram, along with his mother and maternal grandparents and close relatives.

Thus, the Court ruled,

"The citizenship or domicile of the father of the child, or the fact that rightly or wrongly the child has acquired a foreign passport, will have no bearing in an application for guardianship of the person of the minor, where the paramount consideration is the welfare and well-being of the child."

In the present case, the Court said that welfare of child would be in granting custody to the mather, with whom the child has been residing for a long time and who has a stable career. The father, a filmmaker in England, had failed to show work permit in India or a permanent place of abode here. Further, there was nothing to prove his educational or financial status to attend the affairs of the child. taken.

"The wherewithals of the father in England also is not made available to find out his capacity and capability to look after the child. According to him, if the child is at England, the Government will take care of everything. That is not an assurance expected from a responsible father. So, in every respect, the welfare of the child will be more protected, if he stays with his mother," the Court held.

We cannot keep a blind eye towards the desire of a loving father to see and interact with his child whenever he comes down to Kerala from England.

Therefore, the Court reserved visitation rights to the appellant-father, granting him rights to call his son on 3 days a weeks when he is in Uk and weekly custody when he is in Kerala.

Case Title: James Robert Edward Peirce & Ors. v. Anna Mathew & Ors.

Citation: 2022 LiveLaw(Ker) 457

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