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Smt. Baisakhi … vs Sri Sanjib Acharya on 18 April, 2017

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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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