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In The High Court At Calcutta
18-04-2017
sh-7
Civil Revisional Jurisdiction
.
CO 747 of 2017
Smt. Baisakhi Acharya(Chakraborty)
v.
Sri Sanjib Acharya
Mr. Nisith Mukhopadhyay
… for the petitioner.
Mr. Nirbanesh Chatterjee
Mr. Anjan Banerjee
… for the opposite party.
In this application under Section 24 of the Code of Civil
Procedure, 1908 the petitioner-wife has prayed for, transfer of the Act
VIII Miscellaneous Case No. 80 of 2015 filed by the opposite party-
husband under Section 12 of the Guardian and Wards Act, 1890 (in
short “the Act of 1890”) and pending before the Court of the learned
District Judge at Barasat to the Court of the learned Additional District
Judge at Alipore, South 24 Parganas.
Being prima facie satisfied with the case made out by the
petitioner in this application, on March 7, 2017 this Court passed an
interim order directing stay of all further proceedings in Act VIII
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Miscellaneous Case No. 80 of 2015 pending before the Court of the
learned District Judge at Barasat till the disposal of the application. A
copy of the application, together with a copy of the said order dated
March 7, 2017 were served upon the opposite party. Mr. Nirbanesh
Chatterjee, learned advocate appeared for the opposite party and
submitted that there is no merit in this application and the petitioner
shall suffer no inconvenience to contest the Act VIII Miscellaneous
Case No. 80 of 2015 before the learned District Judge at Barasat.
It is the case of the petitioner that after being compelled to the
matrimonial home at Barasat, she along with her minor son are
presently residing at South Garia, the minor son is studying in a school
at Champahati and she has no independent source of income, nor is she
receiving any maintenance from the opposite party-husband. She is
facing great hardship to travel the long distance between her residence
and the Court of the learned District Judge at Barasat to contest the
case filed by the opposite party-husband under the Act of 1890.
Mr. Nisith Mukhopadhyay, learned advocate appearing for the
petitioner submitted that admittedly the minor son, whose custody the
opposite party has claimed is residing with the petitioner-mother for
some time now and he cannot be held to be ordinarily residing within
the District North 24-Parganas. It was, therefore, contended that in
view of the provisions contained in Section 9 of the Act of 1890 the
learned District Judge at Barasat, North 24 Parganas lacks the
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jurisdiction to entertain the Act VIII Miscellaneous Case No. 80 of
2015 filed by the opposite party. He drew the attention of this Court to
the application filed by the opposite party, that is the Act VIII
Miscellaneous Case No. 80 of 2015 and submitted that in the said
application the present opposite party has not made any statement
disclosing the fact that the learned District Judge at Barasat, North 24
Parganas has the jurisdiction to entertain the said application.
The above grounds urged on behalf of the petitioner could not
be disputed by the opposite party. Considering the materials on record,
I find force in the submission raised on behalf of the petitioner-wife
that the learned District Judge at Barasat, North 24 Parganas lacks the
jurisdiction to entertain the application filed by the opposite party,
being Act VIII Miscellaneous Case No. 80 of 2015. Further, the
petitioner has also substantiated the hardship to be faced by the minor
child to travel the long distance between Barasat and Alipore for the
purpose of attending the Court.
The opposite party is already contesting the matrimonial suit
filed by the petitioner under Section 22 of the Special Marriage Act,
1954 claiming a decree for restitution of conjugal rights pending before
the learned District Judge at Alipore, South 24 Parganas as well as the
proceedings initiated against him under Section 12 fo the Protection of
Women from Domestic Violence Act, 2005 pending before the learned
Additional Chief Judicial Magistrate at Alipore, South 24 Parganas
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without any grievance of any hardship faced by him.
For the reasons as aforesaid, application of the petitioner
succeeds. Accordingly, the Act VIII Miscellaneous Case No. 80 of
2015 [ Sri Sanjib Acharya v. Smt. Baisakhi Acharya(Chakraborty)] is
withdrawn from the Court of the learned District Judge at Barasat,
North 24 Parganas and the same is transferred to the Court of the
learned District Judge at Alipore, South 24 Parganas.
The learned District Judge at Barasat, North 24 Parganas is
directed to forthwith transmit all the records of the Act VIII
Miscellaneous Case No. 80 of 2015 [ Sri Sanjib Acharya v. Smt.
Baisakhi Acharya(Chakraborty)] to the Court of the learned District
Judge at Alipore, South 24 Parganas.
With the above directions, CO 747 of 2017 stands allowed.
However, there shall be no order as to costs.
Certified website copies of the order, if applied for, be urgently
made available to the parties on usual undertaking.
(Ashis Kumar Chakraborty, J)
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