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Bani Ghosh & Anr vs Sujit Kumar Guha on 30 July, 2018

1

S/L 1
30.07.2018
Ct. No. 6

SD
C.O. 3569 of 2016
With
C.A.N. 4484 of 2018

Bani Ghosh Anr.

Vs.

Sujit Kumar Guha.

Mr. P.K. Bhattacharya
… for the Petitioners.

Mr. Mrinal Kanti Ghosh
… for the Opposite party.

This is an application under Section 24 of the Code of Civil Procedure seeking

transfer of Act VIII Case No.51 of 2016 currently pending in the Court of learned District

Judge, Burdwan.

The petitioner is the grandmother of the child aged about 4 years whose custody

has been sought for by the father, natural guardian in the above Act VIII case which is

pending before the Court of learned District Judge, Burdwan.

The case made out by the petitioner is that after death of her daughter, she got

custody of her deceased daughter’s minor child of 4 years age and she is interested to

continue with the custody of that child of her predeceased daughter, Debashri Guha.

In support of the prayer for transfer, the petitioner has stated in the petition as

follows:-

i) That she is residing at Indus in the District of Bankura. Therefore, the Act

VIII case should be transferred to Bishnupur Court from Burdwan Court;

ii) That a proceeding under Section 498A is pending in the Court at Bishnupur;

and

iii) That a proceeding under Section 125 of the Code of Criminal Procedure is

also pending within the jurisdiction of Bankura Court.

On perusal of the petition, it appears that an F.I.R. was lodged under Section 498A

of the Code of Criminal Procedure against the husband with Bishnupur Police. However,

now it does not appear from the petition that the said case is pending or any cognizance

has been taken on the basis thereof. So far Section 125 proceeding filed by the deceased
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wife of the opposite party herein, it appears that the same is pending before the Court at

Bishnupur. However, since she is no more, question of grant of maintenance does not

arise. It is only for the daughter, the maintenance can be sought for. But since the

husband of the deceased wife has prayed for custody of the child, the question of

maintenance may be considered afterwards.

That apart, Mr. Ghosh, learned Advocate appearing for the opposite party submits

that on number of occasions, he has tendered money order towards maintenance both for

the wife and the daughter, but the same has been refused by the petitioners.

He has also drawn attention of this court to the provisions of Section 6 of the

Hindu Minority and Guardianship Act, 1956 which is reproduced below:-

“6. Natural guardians of a Hindu minor. – The natural guardian of a

Hindu minor, in respect of the minor’s person as well as in respect of the minor’s

property (excluding his or her undivided interest in joint family property), are –

(a) in the case of a boy or an unmarried girl – the father, and after him, the

mother; provided that the custody of a minor who has not completed the age

of five years shall ordinarily be with the mother;

(b) in case of an illegitimate boy or an illegitimate unmarried girl – the mother,

and after her, the father;

(c) in the case of a married girl – the husband;

Provided that no person shall be entitled to act as the natural guardian of a minor

under the provisions of this section –

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit

(vanaprastha) or an ascetic (yati or sanyasi).”

Section 6 precisely says that father is the natural guardian of a Hindu minor both in

respect of the minor’s person and/or property excluding his/her undivided interest in the

joint family property. In case of boy or an unmarried girl, the father and after him, the

mother provided that if the custody of a minor who has not completed the age of five years

shall ordinarily be with the mother.

In this case, the mother is dead, therefore, father is the natural guardian according

to the said provisions. The petitioner has not been able to show prima facie any case in
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support of her prayer for custody of the minor child of the opposite party, so in that case

the prayer for transfer of the Act VIII case cannot be allowed. The consideration which

has been shown, for the transfer of the said Act VIII case cannot get any support from this

Court.

That apart, Section 8 of the said Act shows that the natural guardian, of a Hindu

minor, has power, subject to the provisions of this section, to do all acts which are

necessary or reasonable and the proper for the benefit of the minor or for the realization,

protection or benefit of the minor’s estate.

In such circumstances, this Court is not at all convinced with the submission made

by the learned Advocate appearing for the petitioners that since they are able to contest

the Act VIII case in the Court of Bishnupur, the Act VIII case should be transferred.

Therefore, such prayer cannot be allowed.

That apart, the learned Advocate for the opposite party submits that for all

practical purposes for which the prayer made by the petitioner will be proved to be futile

inasmuch as, the distance from the place where she resides, i.e., Indus to the Court of

Burdwan is 65 kms whereas the distance from the Court of Indus to the Court of Burdwan

is about 125 kms. Therefore, the prayer for transfer to Burdwan cannot be accepted.

With these observations, C.O. 3569 of 2016 along with C.A.N. 4484 of 2018 is

rejected.

(Sahidullah Munshi, J.)

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