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Shambhu Nath Chakraborty vs Mahuya Chakraborty on 13 February, 2020

1

13.02.2020

Mithun
List – S/L
Sl. No. 21
Ct. No. 17
C.O.4119 of 2019

Shambhu Nath Chakraborty

-Vs.-

Mahuya Chakraborty

Mr. Binay Panda, Adv,
Mr. Raju Mondal, Adv,
…for the petitioner

Affidavit of service be kept with the record. It appears from the affidavit of
service that the notice of the instant proceeding was tendered to the opposite
party but she refused to accept the notice. In view of such postal endorsement
and bearing the provision of Section 27 of the General Clauses Act in mind, I hold
that the notice of the instant proceeding was properly served but the opposite
party has not appeared to contest the instant proceeding and accordingly, the
instant revision is taken up for hearing ex parte.

Act VIII Misc. Case No.9 of 2013 under Section 25 of the Guardians and
Wards Act filed by the present petitioner before the learned District Judge,
Burdwan before bifurcating of the District prayed for custody of a minor girl child.
It is, however, not stated the date of birth of the said minor child in the
application. Admittedly, the said minor child stays with her mother at premises
No.B/3, Sukumar Nagar Colony, Ward No.42, Durgapur within the District of
Paschim Burdwan. It has also not been stated in the application from when the
minor child of the family has been residing with the mother.

Section 9(1) of the Guardians and Wards Act, 1890 confers the jurisdiction
of the court in respect of the person of the minor. Section 9(1) runs thus :-

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“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.”

[

Plain reading of the above provision shows that the Principal Court of Civil
jurisdiction of a District where the child originally resides will have the jurisdiction
to try an application for guardianship of the minor child. No other Court has the
territorial jurisdiction on the plea of convenience and inconvenience or any other
grounds to try such application under Section 25 of the Guardians and Wards Act
except the Court under whose jurisdiction the minor originally resides.

The term “where minor originally resides” was the subject matter of judicial
enquiry in a number of decisions of the Hon’ble Supreme Court and different High
Courts.

In the case of Ruchi Majoo vs. Sanjeev Majoo reported in (2011) 6
SCC 479, the Hon’ble Supreme Court had the occasion to consider the difference
between temporary residence of a child and ordinary residence of a child. It was
held that if a child is temporarily shifted from her permanent place of residence to
another residence, only for the purpose of creating jurisdiction of a particular
Court, that residence cannot be considered as an ordinary residence. The term
“where the minor ordinarily resides” is different from the term “where minor
presently resides”.

In Ruhi Sahina Vs. Syed Masidur Rahman reported in 2019(1) CLJ
(CAL 86). It was held by a Co-ordinate Bench of this Court that a case under the
Guardians and Wards Act should be transferred to a Court of competent
jurisdiction where the child ordinarily resides.

Bearing the principles as stated above in mind I am not in a position to
accede to the submission made by the learned Advocate for the petitioner.

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The case under Section 25 of the Guardians and Wards Act was filed before
the learned District Judge, Burdwan when the District of Burdwan is not
bifurcated. Now Durgapur falls under Paschim Burdwan after bifurcation. There is
a Court of Additional District Judge at Durgapur. Therefore, Misc. Case No.9 of
2013 cannot be transferred to any other Court except the Court of the learned
Additional District Judge at Durgapur.

For the reasons stated above, the instant application is disposed of
transferring Misc. Case No.9 of 2013 to the Court of the learned Additional District
Judge at Durgapur for trial and disposal as the child ordinarily resides within the
jurisdiction of Durgapur Court. The application is thus, disposed of.

Let a copy of this order be sent to the Court below through Department for
information and compliance.

(Bibek Chaudhuri, J.)

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