Case Note & Summary
The appellant, Smt. Ayeesha M. Torgal, married the respondent, Sri B. Pradeep Muthukumar, on 5th February 2010 as per Hindu rites, and their marriage was registered under the Special Marriage Act on 30.2.2009 before the wedding ceremony. A male child was born to them on 24.03.2011 at Statement, Pierre hospital, Brussels. The appellant filed a petition under Section 25 of the Guardian and Wards Act, 1890, before the Additional Principal Judge, Additional Family Court-IV, Bangalore, seeking appointment as guardian of the minor child. The Family Court dismissed the petition on the ground that it had no territorial jurisdiction to entertain the petition, as the child was born in Brussels and the father resided in Belgium. Aggrieved, the appellant filed this appeal under Section 47(a) of the Guardian and Wards Act, 1890. The High Court of Karnataka at Bangalore, comprising Justice N. Kumar and Justice B. Sreenivase Gowda, considered the issue of territorial jurisdiction. The court noted that the child was ordinarily residing with the mother in Bangalore within the jurisdiction of the Family Court, and therefore the Family Court had jurisdiction to entertain the petition. The court set aside the order of the Family Court and remitted the matter for hearing on merits. The appeal was allowed.
Headnote
A) Family Law - Guardian and Wards - Territorial Jurisdiction - Section 25 Guardian and Wards Act, 1890 - The Family Court dismissed the mother's petition for custody of her minor child on the ground that it lacked territorial jurisdiction because the child was born in Brussels and the father resided in Belgium. The High Court held that the child was ordinarily residing with the mother in Bangalore within the jurisdiction of the Family Court, and therefore the Family Court had jurisdiction to entertain the petition. The order of dismissal was set aside and the matter remitted for hearing on merits. (Paras 1-3)
Issue of Consideration
Whether the Family Court at Bangalore had territorial jurisdiction to entertain a petition under Section 25 of the Guardian and Wards Act, 1890, for custody of a minor child who was born abroad but was ordinarily residing with the mother in Bangalore.
Final Decision
The High Court allowed the appeal, set aside the order of the Family Court dated 23.07.2012, and remitted the matter to the Family Court for hearing on merits.
Law Points
- Territorial jurisdiction under Guardian and Wards Act
- 1890
- Section 25
- Ordinary residence of minor
- Welfare of child
Case Details
2013 LawText (KAR) (06) 11
M.F.A. No. 8476 of 2012 (GW-WC)
N. Kumar, B. Sreenivase Gowda
Sri. Ashok Patil (for appellant), Sri. V. V. Gunjal (for respondent)
Sri B. Pradeep Muthukumar
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Nature of Litigation
Appeal against order of Family Court dismissing petition under Section 25 of Guardian and Wards Act, 1890 for appointment of guardian of minor child on ground of lack of territorial jurisdiction.
Remedy Sought
Appellant sought appointment as guardian of her minor child and challenged the Family Court's order dismissing her petition on jurisdictional grounds.
Filing Reason
Family Court dismissed the petition for custody of minor child on the ground that it lacked territorial jurisdiction because the child was born in Brussels and the father resided in Belgium.
Previous Decisions
Family Court dismissed the petition under Section 25 of Guardian and Wards Act, 1890 on 23.07.2012 in G & WC.No.78/2012.
Issues
Whether the Family Court at Bangalore had territorial jurisdiction to entertain a petition under Section 25 of the Guardian and Wards Act, 1890, for custody of a minor child who was born abroad but was ordinarily residing with the mother in Bangalore.
Submissions/Arguments
Appellant argued that the minor child was ordinarily residing with her in Bangalore within the jurisdiction of the Family Court, and therefore the Family Court had jurisdiction.
Respondent contended that the child was born in Brussels and the father resided in Belgium, so the Family Court lacked territorial jurisdiction.
Ratio Decidendi
The territorial jurisdiction under Section 25 of the Guardian and Wards Act, 1890, is determined by the ordinary residence of the minor, not by the place of birth or residence of the father. Since the minor child was ordinarily residing with the mother in Bangalore, the Family Court at Bangalore had jurisdiction to entertain the petition.
Judgment Excerpts
This appeal is filed challenging the order passed by the Family Court dismissing the petition filed under Section 25 of the Guardian and Wards Act, 1890 on the ground it has no territorial jurisdiction to entertain the petition.
The appellant- Smt. Ayeesha M. Torgal was married to the respondent Sri B. Sri. B. Pradeep Muthukumar on 5th February, 2010 as per Hindu rites, their marriage was registered under the Special Marriage Act on 30.2.2009 before wedding ceremony. A male child was born to them on 24.03.2011 at Statement, Pierre hospital, Brussels.
Procedural History
The appellant filed a petition under Section 25 of the Guardian and Wards Act, 1890 before the Additional Principal Judge, Additional Family Court-IV, Bangalore, seeking appointment as guardian of her minor child. The Family Court dismissed the petition on 23.07.2012 on the ground of lack of territorial jurisdiction. The appellant then filed this appeal under Section 47(a) of the Guardian and Wards Act, 1890 before the High Court of Karnataka at Bangalore.
Acts & Sections
- Guardian and Wards Act, 1890: 25, 47(a)
- Special Marriage Act:
