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Babli Dutta @ Deb Sarkar vs Sujit Deb Sarkar on 19 February, 2019

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19.02.19

Srimanta
List – S/L
Sl. No. 34
Ct. No. 25
C. O. 3195 of 2018

Babli Dutta @ Deb Sarkar

-Vs.-

Sujit Deb Sarkar

Mr. Ankit Agarwala, Adv.,
Mr. Subir Debnath, Adv.,
Ms. Alotriya Mukherjee, Adv.

…for the petitioner.

Mr. Pinaki Ranjan Mitra, Adv.

…for the opposite party.

The opposite party filed an application under Section 9(1) of the Guardians
and Wards Act (Act VIII, 1890) against his daughter-in-law with a prayer to
appoint the opposite party as the guardian of the minor boy, Kanzan and to take
custody of the said minor son and other consequential reliefs.

It is pertinent to mention here that the petitioner herein is the legally
married wife of one Satadru Deb Sarkar, since deceased. Said Satadru, the
husband of the petitioner unfortunately died on 21st February, 2016. In the
wedlock between the petitioner and her husband, a child named Kamzan alias
Saheb was born on 22nd August, 2014.

The opposite party of this proceeding is the grandfather of the said minor
child who prayed for a declaration from the competent Court to the effect that he
is lawful guardian of the above-named minor child with further prayer for custody
of the said child.

The petitioner has come up with the instant application under Section 24 of
the Code of Civil Procedure stating, inter alia, that she has been working as an
Assistant Professor of Uttar Banga Krishi Biswa Vidyalaya, Cooch Behar and
residing in Cooch Behar with her minor child. Her minor son is pursuing his
studies in Cooch Behar. The petitioner never stayed at Howrah along with her
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child permanently. Therefore, she has prayed for transferring the case under
Section 9(1) of Act VIII to the Court of the learned District Judge, Cooch Behar.

By filing affidavit-in-opposition against the petition under Section 24 of the
Code of Civil Procedure, it is contended by the opposite party that the said minor
child is the only living bridge between the deceased son and the opposite party.
He has lost his son untimely and at present his only source of consolation is the
child born in the wedlock of Satadru, since deceased and the petitioner. However,
the opposite party is not allowed to see his grandson by the petitioner which
forced him to file the application under Act VIII praying for guardianship of the
ward.

Mr. Pinaki Ranjan Mitra, learned Advocate for the opposite party submits
that the opposite party wants only the right of occasional visitation of his
grandson. The petitioner is not allowing the opposite party to even see his
grandson occasionally. The petitioner has refused to bring the child at Howrah.
The opposite party is now aged about 68 years. At this age it is not possible for
him to go to Cooch Behar to see his grandson. Considering all such factual
aspect, the learned Trial Judge directed the petitioner to produce the minor child
in Court on a particular date. In order to frustrate the said order passed by the
learned Trial Judge as well as an innocuous wish of the grandfather to see his
grandson, the instant petition has been filed by the petitioner.

Mr. Ankit Agarwala, learned Advocate for the petitioner, on the other hand,
draws my attention to Section 9(1) of the Guardians and Wards Act, 1890 which
reads such :-

“9. Court having jurisdiction to entertain application. – (1) If the
application is with respect to the guardianship of the person of the minor, it shall
be made to the District Court having jurisdiction in the place where the minor
ordinarily resides”.

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Referring to the aforesaid provision, it is submitted by Mr. Agarwal that the
principal Court of civil jurisdiction of a District where the ward permanently
resides is having the jurisdiction to entertain an application under Section 9 of the
said Act. From the application filed by the opposite party in the Court of the
learned District Judge, Howrah, it is admitted that the petitioner stayed for only
five days in the house of the opposite party after the death of her husband. After
completion of Sradh ceremony of her husband, the petitioner left her matrimonial
house and has been residing at Cooch Behar.

To counter such submission made by Mr. Agarwala Mr. Mitra, learned
Advocate for the opposite party submits that the permanent address of the
petitioner is at Salkia. However, Mr. Agarwala, learned Advocate for the
petitioner draws my attention to the Adhar Card of the petitioner wherein
permanent address of the petitioner is recorded as in Nadia.

Be that as it may, in a proceeding under Section 24 of the Code of Civil
Procedure, there is no scope to cause an enquiry as to whether the petitioner is a
permanent resident of Nadia or Salkia. Admittedly, the petitioner is an Assistant
Professor of Uttar Banga Krishi Biswa Bidyalaya, Cooch Behar. She is presently
aged about 33 years. Normal age of superannuation of a professor is 65 years.
Thus in normal circumstances, the petitioner will stay at Cooch Behar up to the
age of 65 years. The minor child of the petitioner is aged about five years. He is
pursuing his studies at Cooch Behar. On the death of the father, mother being
the natural guardian and custodian of the child can very well pray for transfer of a
proceeding under Section 9 of Act VIII to Cooch Behar where the minor child has
been residing.

In view of the above observation, I hold that the learned District judge,
Howrah and in respect of the present case, learned Additional District Judge, 3rd
Court at Howrah has no jurisdiction to entertain the application under Section 9 of
Act VIII filed by the opposite party.

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Accordingly, keeping in mind the provision of Section 24(5) of the Civil
Procedure Code, Misc. Case No. 123 of 2017 arising out of an application under
Section 9(1) of the Guardian and Wards Act, 1890 be transferred to the Court of
the learned District Judge, Cooch Behar. Let a copy of this order be sent to the
learned District Judge, Cooch Behar as well as the learned Additional District
Judge, 3rd Court at Howrah for information and compliance through the Registry of
this Court.

Urgent photostat certified copy of this order, if applied for, be given to the
learned Advocates for the parties on the usual undertakings.

(Bibek Chaudhuri, J.)

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