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Sanchayita Deb (Guha) vs Susanta Deb on 10 January, 2020

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

The Hon’ble JUSTICE BIBEK CHAUDHURI

CO No. 3963 of 2018
With
CO No.3964 of 2018

Sanchayita Deb (Guha)
-Versus-
Susanta Deb

For the Petitioner: Mr. Uday Sankar Chattopadhyay,
Mr. Suman Shankar Chatterjee.

Heard on: December 12, 2019.
Judgment on: January 10, 2020.

BIBEK CHAUDHURI, J. : –

1.

Both the applications under Section 24 of the Code of Civil

Procedure filed by the petitioner being the legally married wife of the

opposite party were heard analogously and the applications are disposed

of with the following order.

2. C.O 3964 of 2018 was filed by the wife/petitioner praying for

transfer of Matrimonial Suit No.34 of 2018 pending before the learned

District Judge at Jalpaiguri to the Court of the learned District Judge,

Durgapur.

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3. It is stated in the application that marriage of the petitioner was

solemnized with the opposite party under Special Marriage Act on 14th

February, 2004. In the said wedlock between the petitioner and opposite

party, she gave birth to a male child on 11th June, 2006 who is now aged

about 13 years. The said son of the parties is a student of Bidhan School,

Durgapur in the District of Paschim Burdwan. After marriage the

petitioner was subjected to physical and mental torture by the opposite

party on the standard of dowry given to the petitioner at the time of their

marriage from her paternal home. During the subsistence of marriage

with the petitioner, it is alleged that the opposite party has performed a

second marriage on 17th July, 2012. However the petitioner could not take

any legal step against the opposite party/husband as he is a Assistant

Sub-Inspector of Police and his elder brother is an influential political

leader of the locality. That on 1st February, 2017, the petitioner, her

husband and their minor child attended a marriage ceremony at

Durgapur. The opposite party left Durgapur on 3rd February, 2017 leaving

the petitioner and her child at her paternal home. On 12th December,

2017, the second wife of the opposite party came to the petitioner’s

matrimonial home wearing some ornaments of the petitioner. When the

petitioner demanded her ornaments back, the said second wife of the

opposite party took up quarrel with her and physically assaulted her with

a wooden bar causing injury on her person. On the same night the

opposite party also tried to commit her murder by smoothering her with a

pillow when he came to learn about the incident. On the very next day the
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opposite party drove the petitioner out of his house with their son and

since then the petitioner has been residing at her paternal home at

Durgapur. Subsequently the petitioner came to learn after receiving the

summons that her husband has filed Matrimonial Suit No.34 of 2018

against her for dissolution of marriage by a decree of divorce before the

learned District Judge, Jalpaiguri. It is submitted by the petitioner that

she is unemployed having no income of her own. She has filed an

application under Section 125 of the Code of Criminal Procedure against

the opposite party but the opposite party failed and neglected to pay any

maintenance for her and their minor child. It is further contended by the

petitioner that distance between Durgapur and Jalpaiguri is more than

600 km and it is not financially possible for her to bear such expenses for

the journey of the petitioner, from Durgapur to Jalpaiguri to contest the

said suit. For this reason, the petitioner has prayed for transfer of the

abovementioned matrimonial suit to the court of the learned Additional

District Judge at Durgapur.

4. CO 3963 of 2018 is another application under Section 24 of the

Code of Civil Procedure filed by the petitioner against the opposite party

praying for transfer of Miscellaneous Case No.33 of 2017 pending before

the learned District Judge at Jalpaiguri to the Court of learned Additional

District Judge at Durgapur.

5. The aforesaid miscellaneous case was filed by the opposite party

under Section 12 and 25(1) of the Guardians and Wards Act, 1890 read

with Section 13 of the Hindu Minority and Guardianship Act, 1956
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praying for custody of the minor child of the petitioner and the opposite

party. It is alleged by the petitioner that the minor son of the parties has

been residing at Durgapur under the care of the petitioner. He is a

student of Bidhan School at Durgapur as he ordinarily resides at

Durgapur with his mother, the learned District Judge, Jalpaiguri has

prima facie no jurisdiction to try the said miscellaneous case and

accordingly, the said case ought to be transferred to the court of the

learned Additional District Judge at Durgapur having jurisdiction to try

the said case.

6. It will not be out of place to mention at the outset that after

admission of both the application for hearing, the petitioner was directed

to serve copies of both the applications to the opposite party with a notice

to contest the instant proceedings. The opposite party duly received both

the notices as is revealed from the postal track report but he has not

turned up. Thereafter, a Coordinate Bench of this Court directed the

petitioner to serve a notice of the instant proceedings to the learned

Advocate for the opposite party who is appearing on behalf of him in the

trial court. Affidavit-of-service shows that the said notice was also

delivered to the learned Advocate for the opposite party in the court

below. However the opposite party did not turn up to contest these

proceedings.

7. The petitioner has sought for transfer of the matrimonial suit

mainly on the ground of distance of Jalpaiguri from her paternal home at

Durgapur where she is now residing with her child. It is stated by the
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petitioner on oath that she has no income of her own. She is fully

dependent upon her parents. The opposite party has not paid any

maintenance for his wife and the son. Under such circumstances, the

petitioner will of course suffer inconvenience to travel Jalpaiguri from

Durgapur which is situated at a distance of about 600 km away in one

way.

8. It is needless to say that the Hon’ble Supreme Court in plethora of

decision was pleased to hold that inconvenience of the wife should be

treated as the prime consideration in a proceeding under Section 24 of the

Code of Civil Procedure arising out of a matrimonial suit. Decisions of the

Hon’ble Supreme Court in the following cases may be relied on in support

of my observation:-

(i) Rajani Kishor Pardeshi vs. Kishore Babulal Pardeshi

: (2005) 12 SCC 237

(ii) Smita Sharma vs. Vivek Sharma : (2004) 13 SCC

607.

(iii) Neelima Rani vs. Srikanth : (2005) 12 SCC 387

(iv) Usha Choudhary vs. Dilip Choudhary : (2004) 13

SCC 683

(v) Sumita Singh vs. Kumar Sanjay and Anr : AIR 2002

SC 396

9. With regard to the application under Section 24 of the Code of Civil

Procedure praying for transfer of Miscellaneous Case No.33 of 2017 filed

by the opposite party before the learned District Judge, Jalpaiguri, I like
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to point out at the outset the provision of Section 9 of the Guradians and

Wards Act.

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.

(2) If the application is with respect to the guardianship of the
property of the minor, it may be made either to the District
Court having jurisdiction in the place where the minor
ordinarily resides or to a District Court having jurisdiction in a
place where he has property.

(3) If an application with respect to the guardianship of the
property of a minor is made to a District Court other than that
having jurisdiction in the place where the minor ordinarily
resides, the Court may return the application if in its opinion
the application would be disposed of more justly or
conveniently by any other District Court having jurisdiction.

10. Thus, Section 9 confers the territorial jurisdiction to the court in

the matter of Guardianship application. Firstly, when the application is in

respect of the guardianship of the person of a minor it is to be filed in the

court under whose territorial jurisdiction the minor, ordinarily resides.

Secondly, if such application relates to the property of the minor there are

two fora and the applicant may chose either of the two, namely, a court

under whose territorial jurisdiction the minor ordinarily resides, or under

whose territorial jurisdiction the minor has property. A Coordinate Bench

of this Court in the case of Ruhi Sahina vs. Syed Masidur Rahman
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reported in (2018) 5 WBLR (Cal) 299 observed in paragraph 11 of the

said judgment as hereunder:-

“Learned Counsel appearing for the petitioner has relied on a
judgment in the case of Subhadip Laskar vs. Sanjukta Laskar,
reported in 2011 (3) CHN 575. Applying the ratio decided in the
said judgment it can be held that it is the place where the
minor is presently residing is to be considered for the purpose
of determining the jurisdiction where the application under Act
VIII is to be lodged. It may be the case that the minor was
residing with her parents at the matrimonial home at Diamond
Harbour at one point of time but owing to the matrimonial
discord and particularly mental and physical cruelty, the wife
had to leave her matrimonial home from Diamond Harbour to
Paschim Medinipur under compulsion and she had to carry the
minor child with her.”

11. Paragraph 13 of the aforesaid judgment is also relevant for our

purpose:-

“Apart from all these, the legislative intent, why the words and
expression “the child ordinarily resides” has been used, is
nothing but to enure the benefit of the child because when the
custody matter would be heard the child would be brought to
the Court, and, it is not expected that at every hearing day the
child would be brought from Paschim Medinipur to Alipore
Court travelling 100 Kms. Therefore, this logic is not acceptable
that “ordinarily residing” means the matrimonial home where
the couple resided last. Looking at the convenience and
inconvenience of the minor child I am of the firm opinion that
the custody matter should be transferred to a Court where the
minor child is residing now with his mother which has been
admitted by the opposite party / father in his application.

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Therefore, I direct that the Act VIII Case No.18 of 2017 be
transferred from the Court of the learned District Judge, Alipore
to the Court of learned District Judge, Paschim Medinipur. The
learned District Judge, Alipore is directed to transmit records of
the Act VIII Case No.18 of 2017 before the learned District
Judge, Paschim Medinipur. After such transfer is made the
learned District Judge, Paschim Medinipur will issue a notice
afresh to both the parties.”

12. In the instant case the minor child of the parties ordinarily resides

at Durgapur with his mother. He is a student of Bidhan School,

Durgapur. Therefore, the court of the learned Additional District Judge,

Durgapur has the jurisdiction under Section 9 of the Guardians and

Wards Act, 1890 to try the said miscellaneous case. Moreover for the

benefit of the minor child, the said miscellaneous case ought to be

transferred to Durgapur for hearing and disposal.

13. In view of the above discussion, both the applications are allowed,

however without any cost.

14. Matrimonial Suit No. 34 of 2018 and Miscellaneous Case No.33 of

2017 be transferred to the Court of the learned Additional District Judge,

Durgapur for trial and disposal.

15. Let a copy of this order be sent to the learned District Judge,

Durgapur for information and compliance.

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

to the parties as expeditiously as possible.

(Bibek Chaudhuri, J.)

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