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S/L 13
27.08.2018
Ct. No. 6
SD
C.O. 1273 of 2018
Shri Jiban Krishna Das
Vs.
Smt. Kabita Das @ Paul
Mr. Baidurya Ghosal
… for the Petitioner.
Mr. Jisan Iqubal Hossain
Mrs. Rima Das
… for the opposite party.
This is an application under Section 24 of the Code of Civil Procedure seeking
transfer of Act VIII Case No.26 of 2014 currently pending in the Court of learned
Additional District Judge, 2nd Court, Siliguri, Darjeeling.
It is the specific case of the husband that being a Police Officer while he was posted
at Siliguri, he filed a case for guardianship in the court at Siliguri, District Darjeeling.
The said proceeding was initiated in the year 2014 and since then it is pending.
Now since on transfer the husband has been posted at Cooch Behar, it is difficult for him
to carry two minor children on each occasion, when the matter is fixed for hearing to the
court at Siliguri.
Whereas the learned Counsel appearing for the wife submits that although she is a
housewife, it would be difficult for her to travel all through from Bhaktinagar, her place of
residence, to the proposed court whether the matrimonial suit has been sought to be
transferred by the husband. However, she agrees that such arrangement can be made
provided the husband pays a consolidate amount towards the travelling allowance as well
as other incidental costs including cost for stay in a hotel.
According to the provisions of Guardians and Wards Act, the jurisdiction of the
court is decided on the basis where the minor or minors originally resides. In this case, it
is not disputed that the children are in the custody of the father and also the said minor
children are residing with their father at Cooch Behar. Therefore, for the purpose of
ascertaining jurisdiction under Section 9 of the said Act, “if the application is with respect
to the guardianship of the person of the minor, it shall be made to the District Court
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having jurisdiction in the place where the minor ordinarily resides”, therefore, the court
having jurisdiction should be the court of the learned District Judge, Cooch Behar.
Accordingly, this court directs that the Act VIII Case No.26 of 2014 be withdrawn
from the Court of learned Additional District Judge, 2nd Court, Siliguri, Darjeeling and be
transferred to the Court of the learned District Judge at Cooch Behar who in turn may
assign the same before any other additional court of the District.
In the event such transfer is effected, for each days hearing and attending the court
at Cooch Behar, the petitioner shall pay a consolidated sum of Rs.3,000/- (Rupees Three
Thousand only) to the wife/opposite party towards travelling allowance, hotel costs,
fooding and other allied costs.
The husband/petitioner is directed to deposit the said costs in the learned
Transferee court on each day of hearing and the wife/opposite party shall be at liberty to
withdraw the sum from the said Court. Since the matter is pending for a long time, the
transferee court is directed to dispose of the same at an early date without granting
unnecessary adjournment to either of the parties.
With these observations, C.O. 1273 of 2018 is disposed of.
(Sahidullah Munshi, J.)
