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Smt. Arpita Manna (Bera) vs Sahadev Bera on 5 December, 2019

1

05.12.19

C.O 1154 of 2018
+
CAN 1905 of 2019
+
CAN 1906 of 2019

Smt. Arpita Manna (Bera)
-Versus-
Sahadev Bera

For the petitioner: Mr. D.K Chandra

For the opposite party: Mr. Subir Ganguly
Mr. Arijit Bakshi

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

(hereafter the CPC), filed by the wife/petitioner against her husband/opposite

party praying for transfer of Act 8 Case No.42 of 2018 from the Court of the

Learned District Judge, Barasat to the Court of the learned District Judge,

Paschim Midnapur.

In her application it is stated by the petitioner that her marriage was

solemnized with the opposite party on 12th July, 2008 and after one year of

marriage she gave birth to a female child who is now aged about nine years.

Marital life of the petitioner with the opposite party was not happy. She was

physically tortured and mentally abused by her husband. Complaining about

inferior quality of bridal gifts and streedhan articles he also used to put pressure
2

upon the petitioner for money to be brought from her paternal home. The

petitioner was compelled to lodge a written complaint before the police authority

on the basis of which Baranagar P.S Case No.498A of 406 of the Indian Penal

Code was registered against the opposite party. It was not possible for the

petitioner to stay with her husband at Baranagar and she was taken to the

paternal home of the opposite party at Moyna in the district of Purba Medinipur.

She was also tortured by the family members of the opposite party at her

matrimonial home and finally her father took her to his house along with her

minor daughter at Paschim Medinipur. The petitioner has filed a case under the

Protection of Women from Domestic Violence Act, 2005 in the Court of the

learned Judicial Magistrate at Paschim Medinipur. The opposite party on the

other hand, has filed an application under Section 9 of the Hindu Marriage Act

for Restitution of Conjugal Rights before the learned District Judge, Purba

Medinipur at Tomluk. The opposite party has filed an application praying for

custody of their minor child under Section 25 of the Guardians and Wards Act,

1890 before the learned District Judge, North 24 Parganas at Barasat. The said

proceeding was registered as Miscellaneous Case No.42 of 2018. It is pleaded by

the petitioner that she is a resident of village Barbudhi within P.S Kharagpur

(local) in the district of Paschim Medinipur. She will have to travel more than 150

km from her present residence to Barasat. There is no direct communication

from Karagpur to Barasat and it takes about nine hours to reach Barasat from

her paternal home. Moreover, she has no independent source of income. There is

no other person at her paternal home to accompany her regularly to attend the
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court of the learned District Judge, North 24 Parganas at Barasat. Therefore, she

prays for transfer of case No.42 of 2018 from the court of the learned District

Judge, North 24 Parganas at Barasat to the court of the learned District Judge,

Paschim Medinipur at Medinipur.

The opposite party has been contesting the said application by filing

affidavit-in-opposition were in he has denied the material allegations made out

against him by his wife, the petitioner herein. It is specifically pleaded by the

opposite party that immediately after marriage, the petitioner disclosed that she

did not want to stay with the matrimonial relations other than her husband.

Conceding the demand of the petitioner the opposite party started to live with her

in a tenanted premises at Baranagar. In the said wedlock, the petitioner gave

birth to a girl child on 25th June, 2009. After the birth of the girl child the

petitioner started pressurising him to stay at her paternal home as a

domesticated son-in-law. The opposite party however refused to accept such

proposal and the dispute between the started thereafter. After marriage the

opposite party came to know that the petitioner is a genetically carrier of

Hereditary Haemolytic disease of Thalassemia. The petitioner and her family

members suppressed the said fact and gave her marriage with the opposite party.

Since 19th June, 2019, the petitioner has withdrawn herself from the society of

the respondent at her own volition without any reasonable excuse. The petitioner

lodge a complaint under Section 498A/406 IPC against the opposite party and

the criminal case is pending at Barakpur. She also filed an application under

Section 12 of the PWDV Act in the Court of the learned Chief Judicial Magistrate,
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Paschim Medinipur, which is now pending before the learned Judicial Magistrate,

1st Court at Paschim Medinipur. In spite of institution of such criminal cases

against him, the opposite party is still willing and wants to live normal marital

life with the petitioner. So, he filed Matrimonial Suit No.238 of 2012 under

Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The

opposite party is regularly paying a sum of Rs.4000/- per month to the petitioner

on the basis of an order passed by the learned Judicial Magistrate, 3rd Court,

Paschim Medinipur on an application under Section 23(2) of the PWDV Act. The

petitioner is regularly contesting the criminal case filed against the opposite party

at Barakpur. Since the opposite party has been residing at Baranagar he has

filed an application under Section 25 of the Guardians and Wards Act before the

learned District Judge, North 24 Parganas at Barasat. He is the natural guardian

of his daughter. As a natural guardian he has every right to have the custody of

the child. Therefore the opposite party has prayed for dismissal of the instant

revision under Section 24 of the CPC.

Learned Advocate for the petitioner submits that the petitioner has been

residing in a village within P.S Kharagpur (local). The minor child of the parties is

also residing with the petitioner. Therefore, the case under Section 25 of the

Guardians and Wards Act ought to have been filed before the learned District

Judge, Paschim Medinipur, where the said child ‘ordinarily resides’. Prima facie,

the learned District Judge, Barasat, North 24 Parganas has no jurisdiction to try

a proceeding under Section 25 of the Guardians and Wards Act. Only on this
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score the case ought to be transferred to he learned District Judge, Paschim

Medinipur.

Mr. Subir Sanyal, learned Advocate for the opposite party has raised a

pertinent question as to whether the plea of inconvenience set out by the

petitioner is justified or not. It is pointed out by Mr. Sanyal that the petitioner

has been contesting the criminal case instituted by her against the opposite party

at Barakpur. Barakpur being a Sub-division of North 24 Parganas and barely

about 10 km. away from Barasat, the petitioner ought not to have any

inconvenience to contest the proceeding under Section 25 of the Guardians and

Wards Act at Barasat.

Secondly, it is submitted by the learned Counsel for the opposite party that

the opposite party is the natural guardian of their child. He is residing at

Baranagar. So, he filed the case praying for custody of his minor child at Barasat.

It is also difficult for the opposite party to contest the said proceeding at Paschim

Medinipur because he apprehends of being manhandled and humiliated at

Paschim Medinipur. Thirdly, it is vehemently urged by Mr. Sanyal that the

instant application is liable to be dismissed in limine for making false statement

by the petitioner on solemn affirmation. She left her maternal home prior to

September, 2010 and filed a case under PWDV Act against the opposite party on

27th September, 2010. On the other hand, she lodged a complaint under Section

28A/406 IPC at Baranagar P.S on 4th January, 2011. The statement of fact made
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by the petitioner in her application is false and beyond record and accordingly

the application should be dismissed.

Mr. Sanyal also submits that the jurisdiction as provided in Section 9 of

the Guardians and Wards Act relates to initial jurisdiction and the court while

exercising power under Section 24 of the CPC, can very well transferred the case

under Guardians and Wards Act to any other court considering relative

convenience and inconvenience of the parties.

Section 9 of the Guardians and Wards Act runs thus:-

“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.”

Sub-Section (5) of Section 4 of the Guardians and Wards Act defines:-

“4.(5) “the Court” means–

(a) the District Court having jurisdiction to entertain an application under this Act for
an order appointing or declaring a person to be a guardian; or

(b) where a guardian has been appointed or declared in pursuance of any such
application–

(i) the Court which, or the Court of the officer who, appointed or declared the
guardian or is under this Act deemed to have appointed or declared the guardian; or

(ii) in any matter relating to the person of the ward the District Court having
jurisdiction in the place where the ward for the time being ordinarily resides; or

(c) in respect of any proceeding transferred under section 4A, the Court of the officer
to whom such proceeding has been transferred;”

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In Sri Soumendra Malik vs. Smt. Tumpa Malik reported in (2018) 1

CAL 314 (HC), the Division Bench of this Court held as follows:-

“12. It has to be appreciated that the role of the court does not end with the
appointment of a guardian over a minor. Nor does the responsibility of the
court cease with the appointment of a guardian. The very nature of the
provisions of the Guardians and Wards Act, 1890 tend to show that the
court has to supervise the work of the guardian, not to remove its watchful
eyes from the minor, ensure that the ward’s welfare is being looked after by
the guardian, his or her property is being taken care of by him and so on.
Therefore, this court cannot be far removed from the minor. The ward has to
be accessible to the court as much as the court should be accessible to the
guardian and any other interested person in his or her welfare. Hence, the
provision that only the court within the jurisdiction of which the minor
ordinarily resides has the jurisdiction to entertain proceedings under the
said Act.”

A Coordinate Bench of this Court in the case of Ruhi Sahina vs. Syed

Masidur Rahman reported in 2018 (4) ICC 166 (Cal) relying on the decision in

the case of Subhadip Laskar vs. Sanjukta Laskar reported in 2011 (3) CHN

575, 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 filed. In the said judgment also, this Court gave answer to

the legislative intent, why the words and expression ‘the child ordinarily resides’

has been used, it is held that in order to enure the benefit of the child, the

legislature consciously fixes the jurisdiction of the court to a place where ‘the

child ordinarily resides’ 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 the place where he ordinarily resides to

another place where the application is filed travelling a considerable distance.
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It is not disputed that the minor child of the parties at present resides

with her mother within the jurisdiction of the learned District Judge, Paschim

Medinipur. Therefore, Paschim Medinipur is the place where the child ‘ordinarily

resides’. When a statute fixes up jurisdiction of a particular court, the said

jurisdiction cannot be treated as initial jurisdiction and the court exercising

power under Section 24 of the CPC can transferred the case from the jurisdiction

fixed by the statute to a court situated outside the jurisdiction. On such score, I

am not in a position to accept the argument advanced by Mr. Sanyal, learned

Advocate for the opposite party. In view of what has been stated above, I am

inclined to allow the instant application under Section 24 of the CPC.

Accordingly the instant revision is allowed on contest, however without

cost.

Case No.42 of 2018 be transferred to the court of learned District Judge,

Paschim Medinipur from the court of the learned District Judge, North 24

Parganas at Barasat.

Let a plain copy of this order be sent immediately to the courts of the

learned District Judges, North 24 Parganas and Paschim Medinipur for

information and compliance.

(Bibek Chaudhuri, J.)

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