The Kerala High Court recently ruled that an application for guardianship of a minor must be filed with the competent district court of the place where the “minor habitually resides”.
A dividing bench made up of Justice A Muhamed Mustaque and Justice Sophie Thomas observed that the nationality or domicile of a child’s father, or whether the child rightly or wrongly acquired a foreign passport, will have no bearing on the determination of jurisdiction.
“A court exercising parens patriae jurisdiction is not concerned with the origin or citizenship of the child or his or her parents. The paramount consideration of the court is the welfare of the child.“
The observation was made during the ruling on the child’s father’s appeal against a family court order rejecting his application for guardianship.
The Appellant and his wife Keralite (Respondent) were married in 2008 and a boy was born from their marriage. However, due to the relationship becoming strained due to an incompatibility in nature and temperament, they had been living apart since 2012.
The wife alleged marital cruelty against her husband in the divorce petition filed by her in the Family Court of Kollam (where she now resides with the child), which was dismissed and a decree of restoration of marital rights was adopted, which was not honored by the wife.
The father, a British citizen, had filed a petition in a court in Kaloor, the place of the marital home, to obtain guardianship of his minor son. The same was transferred to the Kollam court. The plea was ultimately rejected.
Incident appeals were therefore filed.
The appellant father challenged the jurisdiction of the Kollam Family Court to deal with the initial application for guardianship. He argues that since he is the child’s father and natural guardian, the child’s domicile will be that of his father. It was also alleged that the child’s Indian passport and Aadhar card had been acquired in a deceptive manner, removing the fact that the child was a British citizen holding a British passport.
The Court observed that the question of jurisdiction was not contested in the family court. Moreover, the father would have himself acknowledged the fact that the habitual residence of the child was in Kaloor. Thus, it ruled that he cannot contest the jurisdictional competence of the court which he himself chose, based on real facts, and the applicable law.
“Under section 9 of the Guardians and Wards Act 1890, an application for guardianship of the person of a minor must be made to the competent district court of the place where the minor ordinarily resides. In this case, at the time of filing the OP, the habitual residence of the minor child was in Mayyanadu, Kollam, the mother’s paternal home,” added the Court.
On the allegations of wrongful acquisition of an Indian passport, the Court observed,
“The child was born in Kerala on 04.08.2011 to an Indian citizen and since birth he lived in Kerala with his mother. Section 3 of the Citizenship Act 1955 states that a person born in India on or after December 3, 2004 when the Citizenship (Amendment) Act 2003 comes into force shall be deemed to be a citizen of India by birth if both of his 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. Similarly, the father’s assertion that since the child is a British citizen, the Family Court, Kollam had no jurisdiction to hear the OP (G&W), is untenable.“
He added iThe minor child may hold 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 has lived in India with his mother.
The Court referred Rajkumar Sasidharan v Superintendent of Police, Trivandrum and Others (2022(1) KHC 241, where a High Court Division Bench held that solely because the child is a US citizen, the jurisdiction of the Family Court of Thiruvananthapuram cannot be refused, whereas the minor usually resided in Thiruvananthapuram, as well as his mother and his maternal grandparents and his close relatives.
Thus, the Court ruled,
“The nationality or domicile of the father of the child, or the fact that the child has rightly or wrongly acquired a foreign passport, will have no bearing on an application for guardianship of the person of the minor, when the consideration paramount is the welfare and well-being of the child.“
In the present case, the Court said that the welfare of the child would be to grant custody to the mother, with whom the child resides for a long time and who has a stable career. The father, a filmmaker in England, had not presented a work permit in India or a permanent place of residence here. Moreover, there was no evidence of his academic or financial situation to take care of the child’s affairs. taken.
“The means of the father in England are also not made available to discover his ability and ability to care for the child. According to him, if the child is in England, the government will take care of everything. This is not the assurance expected from a responsible father. Thus, in all respects, the well-being of the child will be more protected, if he remains with his mother,” the court ruled.
However, the Court noted that the Court is also concerned about the love and anxiety of a father who misses his son.
We cannot close our eyes to a loving father’s desire to see and interact with his child every time he comes from England to Kerala.
Therefore, the Court reserved visitation rights to the appellant father, granting him the right to call his son 3 days a week when he is in the UK and weekly custody when he is in Kerala.
Case title: James Robert Edward Peirce & Ors. vs. Anna Mathew & Ors.
Citation: 2022 LiveLaw(Ker) 460
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