Thursday, March 30, 2023

Redefine jurisdiction of family courts, says Madras High Court while granting woman custody of minor son

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The Madras High Court has observed that to adequately protect the rights and interests of children whose parents have entered into transnational marriages, the jurisdiction of Family Courts, as stipulated under the Guardians and Wards Act, 1890, must be redefined.

A Single-Judge Bench of Justice J. Nisha Banu passed this order while hearing a petition filed by J. Beula Sima Saral. The petition filed under Sections 7, 9 and 17 of the Guardian and Wards Act, 1890 is by the mother of the minor child Jafferson Peter Robinson, aged 11 years, born on September 9, 2006 to the petitioner and the respondent.

The petitioner has sought to be declared the natural guardian of her minor son and his custody. The petition has been returned by the Family Court on the ground that it lacks territorial jurisdiction to entertain the petition. Challenging the same, the revision petition has been filed.

The Counsel for the Petitioner would state that in Column (v)(a), of the original Petition, the Petitioner has mentioned the ordinary place of the ward at No.3/29, Alagar Konam, Kanniyakumari Village, Nagercoil, Agasteeswaram Taluk, Kanyakumari District.

The original petition stated that the respondent left India in 2014 along with the petitioner and two children thereby impliedly saying that they had been residing in India till 2014. The word ‘ordinarily resides’ includes mere temporary residence even though it will be of such temporary residence as may be considerable.

In the interest of justice, the Court directed the Judge, Family Court, Kanyakumari District at Nagercoil, to take the case on file subject to the proof that would be adduced to show that the child was ordinarily residing as contemplated under Section 9 of the Guardians and Wards Act, 1890.

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“If the issue relating to jurisdiction is doubtful for the Family Court or if it is raised by the respondent, it will be open to the Court to consider the same in the light of evidence offered during enquiry. The Guardians and Wards Act, 1890, was of the year 1890 where inter-country marriages or foreign marriages were not even in contemplation. As on date, those kinds of marriages are innumerable happening each and every day. The law should take a lien matching the changes happening in the society. If the law is lacking behind, the rights of the parties will also lack behind.” 

“Therefore, it is the time for the Legislature to take note of the above types of marriages and taking into account the interest of the children, may redefine the jurisdiction of the Family Court, so that neither the children nor the person interested in the welfare of the children shall suffer,” the Court said. With the above observation and direction, the Court allowed Civil Revision Petition. 


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