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Smt. Bipasha Banerjee vs Shri Rupam Banerjee on 14 March, 2019

1

14.03.19

Srimanta
List – S/L
Sl. No. 08
Ct. No. 25
C. O. 2358 of 2018

Smt. Bipasha Banerjee

-Vs.-

Shri Rupam Banerjee

Mr. Debjit Mukherjee, Adv.,
Mr. Kaustav Bhattacharyya, Adv.

…for the wife/petitioner.

In terms of the order dated 22nd February, 2019 the petitioner has filed
affidavit-of-service showing service of notice of the instant proceeding to the
learned Advocate for the opposite party in the Trial Court. The notice was duly
served.

The affidavit-of-service filed in Court today be kept with the record.

This is an application under Section 24 of the Code of Civil Procedure
(hereafter the C.P.C.) filed by the wife/petitioner, against her husband/opposite
party with a prayer to transfer Act VIII Case No. 8 of 2017 from the Court of the
learned District Judge at Purba Burdwan to the Court of the learned District Judge,
South 24-Parganas at Alipore.

Act VIII Case No. 8 of 2017 is filed by the opposite party praying for
custody of their minor child who is now aged about nine years and has been
residing at Kolkata with his mother, the petitioner herein.

Mr. Debjit Mukherjee, learned Advocate for the petitioner submits that
previously the petitioner filed C.O. 2356 of 2018 praying for transfer of
Matrimonial Suit No. 118 of 2017 filed by the opposite party under Section 9 of
the Hindu Marriage Act for restitution of conjugal rights against the petitioner
before the learned District Judge at Burdwan.

2

A learned Judge of this Court disposed of the above-mentioned matter
allowing the application under Section 24 of the C.P.C. with a direction to transfer
Matrimonial Suit No. 118 of 2017 to the Court of the learned District Judge, South
24-Parganas. He further submits that the wife/petitioner filed a counter-suit
praying for dissolution of marriage by decree of divorce before the learned District
Judge, South 24-Parganas which was registered as Matrimonial Suit No. 43 of
2017 and this Court directed both the above-mentioned two matrimonial suits to
be heard analogously by the learned District Judge at Alipore.

Thus, it is contended by Mr. Mukherjee, learned Advocate for the petitioner
that for convenience of both the parties Act VIII Case No. 8 of 2017 may be
transferred to the Court of learned District Judge, South 24-Parganas.

It is found from the application filed by the opposite party in the above-
mentioned case under Section 25 of the Guardians and Wards Act that the minor
child of the parties has been residing at Kolkata with her mother. In Sri
Soumendra Malik -Vs.- Smt. Tumpa Malik, reported in (2018) 1 CLT 314
(HC), a Division Bench of this Court was pleased to hold that the Principal District
Judge of the District where the minor is presently residing should be considered as
the place of ordinary residence of the minor and an application under Section 25
of the Guardians and Wards Act should be filed in such Court. Similar view has
been reiterated by a Co-ordinate Bench of this Court in Ruhi Sahina -Vs.- Syed
Mosidur Rahaman, reported in 2018 (4) ICC 166 (Cal).

Section 9 of the Guardians and Wards Act contemplates the territorial
jurisdiction of the Court in the matter of guardianship application. Firstly, when
the application is in respect of guardianship of the person of the minor, it is to be
filed at the Court under whose territorial jurisdiction the minor ordinarily resides.
Secondly, if such an application relates to the property of the minor, there are two
fora and the applicant may choose either of the two, namely, a Court under whose
territorial jurisdiction the minor ordinarily resides, or under whose territorial
jurisdiction the property of the minor situates.

3

In the instant case, application under Section 25 of the Guardians and
Wards Act was filed by the opposite party praying for custody of the person of the
minor. Admittedly, the minor has been residing within the jurisdiction of the
learned District Judge, South 24-Parganas at Alipore. Moreover, two other suits
between the parties are pending at Alipore.

In view of such circumstances, the instant application under Section 24 of
the C.P.C. is allowed. Act VIII Case No. 8 of 2017 pending before the learned
District Judge, Purba Burdwan be transferred to the Court of the learned District
Judge, South 24- Parganas at Alipore.

Let a copy of this order be sent to the learned District Judge, Purba
Burdwan and the learned District Judge, South 24-Parganas at Alipore through the
office of this Court.

Urgent photostat certified copy of this order, if applied for, be given to the
learned Advocates for the parties on the usual undertakings.

(Bibek Chaudhuri, J.)

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