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Debanjana Ghosh (Dey) vs Sumanta Kumar Ghosh on 7 February, 2019

1

S/L 2
07.02.2019
Ct. No. 6

SD
C.O. 4364 of 2018

Debanjana Ghosh (Dey)
Vs.

Sumanta Kumar Ghosh

Mr. Tarique Quasimuddin
Ms. Sanchita Chaudhuri
… for the Petitioner.

Affidavit of service affirmed on January 30, 2019 was filed by the petitioner but

since no one appeared the matter was not taken up for consideration and it was

adjourned. The petitioner was, however, directed to serve again and further service has

been made.

Affidavit of service filed in court today be taken on record.

This application under Section 24 of the Code of Civil Procedure is at the instance

of the wife seeking transfer of Act VIII Case No.38 of 2018 currently pending before the

learned District Judge, Hooghly.

Two grounds have been taken by the petitioner, one is that on a previous occasion a

matrimonial suit was directed to be transferred to Barrackpore Court vide this court’s

order dated May 17, 2018 passed in C.O. 769 of 2018 considering the case made out in the

said application under section 24. The said ground has no bearing in this present case.

The other ground is that on the face of the petition under Section 25 of the Guardians and

Wards Act, 1890 whereby the husband has sought for custody of the minor child aged

about 5 years, has admitted that the child was born on September 2, 2013. While the

wife/opposite party left the matrimonial home on August 10, 2013, that is, before the birth

of the child and further, it has been admitted, that the child is residing with the mother at

2A, P.C. Banerjee Lane, Dakshineswar, P.S. Belghoria, Kolkata-700076 which place comes

within the jurisdiction Barrackpore, North 24-Parganas.

In the petition, petitioner has averred that the child was born within Barrackpore

jurisdiction and is ordinarily residing there with the mother is also corroborated from the

other statement made in Matrimonial Suit No.46 of 2017 which was filed before the

learned District Judge, Hooghly and subsequently transferred to the court at Barrackpore.
2

It, therefore, appears that the child whose custody has been sought for by the

opposite party/father, has been residing with the mother at 2A, P.C. Banerjee Lane,

Dakshineswar, P.S. Belghoria, Kolkata-700076 since his birth within the jurisdiction of

Barrackpore Court.

According to the provisions of Section 9 of the Guardians and Wards Act, it is the

intention of the legislature that the court within whose jurisdiction the minor ordinarily

resides shall be the court to hear the prayer for custody of the child. In this particular

case, it is borne out from the record that the child from his birth is with the mother and

has been residing in the abovementioned address under the jurisdiction of the

Barrackpore Court. Therefore, this court does not feel any hesitation to hold that it is not

the Chinsurah Court before which the Section 25 application could be filed, the prayer for

custody should have been made before the learned Additional District Judge, North 24-

Parganas at Barrackpore.

Accordingly, I direct withdrawal of Act VIII Case No.38 of 2018 from the court of

learned District Judge, Hooghly at Chinsurah and transfer the same before the learned

Additional District Judge, North 24-Parganas at Barrackpore.

The learned Additional District Judge, Barrackpore, upon receipt of the said Act

VIII Case No.38 of 2018, shall issue notice upon the parties and thereafter to proceed with

the custody of the child.

The learned District Judge, Hooghly at Chinsurah is also requested to transmit all

records pertaining to the said Act VIII Case No.38 of 2018 to the learned Additional

District Judge at Barrackpore.

With these observations, C.O. 4364 of 2018 is disposed of.

Urgent photostat certified copy of this order, if applied for, be given to the parties

on priority basis.

(Sahidullah Munshi, J.)

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