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Judgments of Supreme Court of India and High Courts

Smt. Dipika Agarwal Nee Khaitan vs Sri. Rishi Agarwal on 10 February, 2020

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

The Hon’ble JUSTICE BIBEK CHAUDHURI

CO 249 of 2020

Smt. Dipika Agarwal nee Khaitan
-Versus-
Sri. Rishi Agarwal

For the petitioner: Mr. Joydeep Kar, Sr. Adv.,
Mr. Siddhartha Banerjee, Adv.,
Mr. Kunal Ganguly, Adv.,
Mr. Arunava Ganguly, Adv.

For the opposite party: Mr. S.K. Kapoor, Sr. Adv.,
Mr. Saptangshu Basu, Sr. Adv.,
Mr. Aniruddha Chatterjee, Adv.,
Mr. Ayan Kumar Boral, Adv.

Heard on: January 28, 2020.
Judgment on: February 10, 2020.

BIBEK CHAUDHURI, J. : –

1.

Section 9(1) of the Guardians and Wards Act, 1890 (hereafter the said Act)

states that if the application for 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. Thus, Section 9 contemplates the territorial jurisdiction of the
Court in respect of an application for guardianship of a minor and the only test

for determining jurisdiction of the Court is the “ordinary residence” of the minor.

2. What is the scope of the expression “the place where the minor ordinarily

resides” in Section 9(1) of the Act? Does it mean the ordinary residence of the

natural guardian of the minor where he/she was born or any other place where

the minor resides with her mother after the martial discord has arisen between

the parents of the minor? These are the issues for determination in the instant

revision.

3. The opposite party herein filed an application under Section 25 of the said

Act read with Section 6(a) of the Hindu Minority and Guardianship Act 1956

before the learned District Judge, South 24 Parganas at Alipore seeking custody

of the person of the female child born in the wedlock of the petitioner and the

opposite party. The said application was registered as Act VIII of the Case No.17

of 2019. It is ascertained from the averment made by the petitioner in the

application that her marriage was solemnized with the opposite party as per

Hindu rites and customs on 24th November, 2012. After marriage both of them

started residing at her matrimonial home at 11A, Ballygunge Circular Road,

Kolkata-19. In the said wedlock, petitioner gave birth to a female child on 23rd

October, 2013. It was alleged by the opposite party that the petitioner is a patient

of chronic depression and obsessive compulsive disorder. In or about May, 2017,

the petitioner went to her paternal home along with her minor child against the

will of the opposite party. It was further alleged that the petitioner failed to take

due care and attention of her minor child as a result of which she suffered a
fracture in the left hand and had to undergo surgery on 28th May, 2017 at Apollo

Gleneagles Hospital. Subsequently the minor was admitted in La Martiniere

School for Girls at Kolkata. The opposite party also made certain allegations

against the petitioner of leading adulterous life which facts are, however, not

relevant for the purpose of determining jurisdiction of aforesaid Act VIII case and

accordingly those are not recorded in the instant order. It is pertinent to state

that the opposite party has alleged that the petitioner forcibly took the minor

away from the residence of the opposite party to South City Residency at Prince

Anwar Shah Road. The minor of the family attended La Martiniere School for

Girls till middle of December 2018. When the school was closed for Christmas

Vacation in 2018, the petitioner went to her paternal house at Mallarpur in the

district of Birbhum along with the said minor child. Therefore, the child was

unable to attend school after it reopened on 15th January, 2019. The opposite

party further alleged that La Martiniere School for Girls is one of the premier

academic institutions of the State and there is no such academic institution at

Mallarpur, Birbhum which could match the academic standard of La Martiniere

School for Girls at Kolkata. It was also alleged that the petitioner never took due

care to rear and maintain the said minor child. The opposite party is capable to

maintain his child and for best interest and welfare of the child, her custody may

be handed over to him.

4. Immediately upon getting the information about institution of Act VIII Case

No.17 of 2019, the petitioner filed an application under Section 24 of the Code of

Civil Procedure before this Court with a prayer to transfer the said case to the
Court of the learned District Judge, Birbhum on the ground that the petitioner

was compelled to leave her matrimonial home on being treated with cruelty by

her husband, opposite party herein and other matrimonial relations. The minor

child of the family has been residing ordinarily with the petitioner. Therefore, the

said Case No.17 of 2019 may be transferred to the Court of the learned District

Judge, Birbhum. The application under Section 24 of the Code of Civil Procedure

was registered as CO No.622 of 2019. Vide order dated 4th July, 2019 a

Coordinate Bench of this Court dismissed the said revisional application holding,

inter alia, that the learned District Judge, South 24 Parganas at Alipore had

territorial jurisdiction to entertain the said application.

5. The said judgment/order passed in CO No.622 of 2019 was assailed by the

petitioner before the Hon’ble Supreme Court in Special Leave Appeal (C)

No.18641 of 2019. The aforesaid special leave appeal petition came up for

hearing before the Hon’ble Supreme Court on 4th October, 2019 and upon

hearing the learned Counsels for the parties the Hon’ble Supreme Court passed

the following order:-

“We are not inclined to interfere with the judgment of the High

Court. The Special Leave Petitions are, accordingly, dismissed.

Pending application(s), if any, stand disposed of. However, the

question of jurisdiction is left open.”

6. In view of the aforesaid order passed by the Hon’ble Supreme Court, the

petitioner filed an appeal before the learned Additional District Judge, 10th Court

at Alipore where Act VIII Case No.17 of 2019 was transferred for trial and
disposal. Under Order XIV Rule 1 read with Section 21 and 151 of the Code of

Civil Procedure and Section 9 of the said Act raising a preliminary issue as

regards the territorial jurisdiction of the said court on the ground that the

petitioner has been residing with her minor child at her paternal home at

Mallarpur, Birbhum. Therefore, the petitioner took shelter at her paternal home

with her child. As the minor child of the family ordinarily resides with the

petitioner, the learned District Judge, Birbhum has territorial jurisdiction to try

and dispose of the application for guardianship of the person of the minor and

the learned District Judge, South 24 Parganas or the Additional District Judge,

10th Court, South 24 Parganas at Alipore has no jurisdiction to try the said

proceeding.

7. The application was contested by the opposite party and by an order dated

10th January, 2020 the learned Additional District Judge, 10th Court at Alipore

rejected the said application under Order XIV Rule 1 read with Section 21 and

151 of the Code of Civil Procedure and Section 9 of the said Act on contest.

8. The said order dated 10th January, 2020 passed in Act VIII Case No.17 of

2019 is under challenge in the instant revision at the instance of the mother of

the minor/petitioner.

9. Mr. Joydeep Kar, learned Senior Counsel on behalf of the petitioner

submits that the petitioner hails from Mallarpur in the district of Birbhum where

her paternal home is situated. Her marriage with the opposite party was

solemnized on 24th November, 2012. A girl child was born to the petitioner in the

said wedlock on 23rd October, 2013. Now, she is aged about six years. On 5th
October, 2018 when the petitioner was staying at her matrimonial home, her

mother-in-law lodged an FIR against her. On 24th November, 2018, she was

compelled to leave her matrimonial home and took shelter in a transit flat

situated at South City Residency at Prince Anwar Shah Road, before she moved

to her paternal home, primarily to complete her daughter’s academic session at

La Martiniere School for Girls. Then she started to stay at her paternal home

since December, 2018. Sometimes in January, 2019, the opposite party filed a

suit for dissolution of marriage by decree of divorce against the petitioner. Only

then the petitioner lodged an FIR against her husband and other matrimonial

relations at Mallarpur PS in Birbhum under Section 498A and other cognate

penal provisions of the Indian Penal Code. The opposite party filed Act VIII Case

No.17 of 2019 praying for custody of the minor child of the family before the

learned District Judge, South 24 Parganas. The petitioner immediately filed an

application under Section 24 of the Code of Civil Procedure praying for transfer of

the said guardianship application to the Court of the learned District Judge,

Birbhum which was registered as CO 622 of 2019. The said application was

dismissed on contest by a Coordinate Bench of this court by a judgment dated

4th July, 2019. The petitioner challenged the said judgment/order passed by the

Coordinate Bench of this Court in CO 622 of 2019 before the Hon’ble Supreme

Court by filing a special leave petition. The special leave petition was dismissed

by the Hon’ble Supreme Court, however, leaving determination of the question of

territorial jurisdiction of the court of trial open. This led the petitioner to file an

application under Order XIV Rule 2 read with Sections 21 and Section 151 of the
Code of Civil Procedure and Section 9 of the said Act disputing territorial

jurisdiction of the learned District Judge, South 24 Parganas at Alipore to try the

said guardianship application. The application was dismissed on contest by the

learned Additional District Judge, 10th Court at Alipore by an order dated 10th

January, 2020.

10. It is submitted by Mr. Kar being ably assisted by Mr. Siddhartha Banerjee

that Section 9(1) of the said Act is absolutely clear and explicit that the District

Court having jurisdiction in the place where the minor ordinarily resides has the

territorial jurisdiction to try an application for custody of the minor filed by a

guardian.

11. In Ruchi Majoo vs. Sanjeev Majoo reported in (2011) 6 SCC 479, it is

observed by the Hon’ble Supreme Court, inter alia, that whether the minor is

ordinarily residing at a given place is primarily a question of intention which in

turn is a question of fact. It may at best be a mixed question of law and fact, but

unless the jurisdictional facts are admitted, it can never be a pure question of

law, capable of being answered without an enquiry into the factual aspects of the

controversy. In the instant case it is not disputed that the petitioner was

compelled to leave her matrimonial home following a matrimonial dispute

resulting in filing of a criminal complaint by her mother-in-law on 5th October,

2018. The petitioner/mother took her daughter with her because at the relevant

point of time she was only five years old. It is submitted by Mr. Kar that statutory

provision contained in Section 6(a) of the Hindu Minority and Guardianship Act,

1956 obviously contains that father is the natural guardian of the minor child
aged five years. Till attainment of five years of age, mother is the custodian of the

child. However while deciding an application as to the territorial jurisdiction of a

particular court in relation to a guardianship application, court must take into

paramount consideration of the welfare of the child. The allegation of the opposite

party that the petitioner illegally removed the minor from her father’s house

stealthily and without permission of the opposite party does not have any leg to

stand because the petitioner had no other ordinary place of abode except her

paternal home at Mallarpur in the district of Birbhum where she could stay after

she was compelled to leave her matrimonial home or was driven out from there.

12. According to Mr. Kar when a lady experiences matrimonial discord and

suit for dissolution of marriage by a decree of divorce as well as criminal case are

filed against her, it is not possible for her to stay at her matrimonial home and

under such factual background the parental home of the petitioner should be

treated as her ordinary residence. When the minor of the family resides with the

petitioner, her ordinary place of residence is the place where her mother resides.

13. Mr. Kar also draws my attention to certain documents annexed with the

application being annexure R-2 and submits that the minor is already admitted

to an ICSE affiliated school under the name St. Paul’s School situated at

Vidyadanga, Rampurhat. She has been pursuing her studies at St. Paul’s School,

Rampurhat. Thus there is no scope to hold that the minor temporarily resides at

or that she was temporarily and stealthily removed from her ordinary place of

residence at Kolkata to by the petitioner.

14. Mr. Kar submits that in order to determine the territorial jurisdiction in

respect of a guardianship application, the rough and ready workable test that is

required to be applied is, whether shifting of the child from his father’s residence

to somewhere else where his/her mother takes him is occasioned in the normal

run of events or by design to create jurisdiction in any particular District Court of

her choice or not. If such test is applied in the instant case, it is found that the

mother/petitioner had no other place to take shelter except in her father’s house

due to the reason of marital discord between her and her husband. It is not an

unnatural feature that the minor has been residing with her mother at her

matrimonial grand-father’s residence. In view of such circumstances, it is

submitted by Mr. Kar, that the learned District Judge, Birbhum has the

territorial jurisdiction to entertain the application for guardianship filed by the

opposite party. In support of his contention, Mr. Kar refers to a decision of this

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

CHN (CAL) 575.

15. Mr. S.K Kapoor, learned Senior Counsel on behalf of the opposite party, on

the other hand, submits that the term “ordinary residence” implies something

more than a causal stay at a particular place. In the instance case the mother of

minor left her maternal home with the minor on 24th November, 2018 and took

shelter in a flat situated at South City Residency till commencement of Christmas

Vacation of the minor’s school at Kolkata. The minor attended La Martiniere

School for Girls from her mother’s temporary residence. The petitioner did not

take permission and consent of the father of the minor before shifting her to
Mallarpur in the district of Birbhum. Mr. Kapoor heavily relies on an email sent

by the petitioner to the Secretary of La Martiniere School for Girls on 16th

January, 2020. In the said email, the petitioner informed the school authority

that she and her husband are leaving separately due to personal reasons which

are yet to be sorted out by Law. In between, she is residing at her paternal house

in in the district of Birbhum along with her minor daughter. She further stated,

“it is just the matter of time that we will shift to Kolkata soon once the ongoing

family dispute is sorted, as a matter has come to my child’s safty, I cannot take

risk”. With the aforesaid statement, the petitioner prayed for 15 days leave for her

daughter. She also asked for a new school escort card in her favour in the mean

time. The principal of the school received the said email on 27th January and

granted leave to her child.

16. It is strenuously argued by Mr. Kapoor that the petitioner wanted to return

Kolkata with her child to continue her child’s education at La Martiniere School

for Girls at Kolkata. However, in order to establish that the petitioner and her

minor child have been ordinarily residing at , she has filed photostat copies of

school fees purportedly issued by one St. Paul’s School, Vidyadanga, Rampurhat

on 15th January, 2019 and another receipt purportedly issued by St. Paul’s

International School, Munsuba for a sum of Rs.20,200/-. Mr. Kapoor raises a

question as to how the said minor was admitted in St. Paul’s School, Vidyadanga,

Rampurhat or St. Paul’s School International School, Munsuba without taking

transfer from La Martiniere School for Girls at Kolkata. It is also pointed out by

the learned Senior Counsel on behalf of the opposite party that the conduct of
the petitioner appears to be suspicious, inconsistent and mala fide because she

try to impress upon the court that the minor of the family has been residing at

by showing a receipt of admission fees issued by the St. Paul’s School on 15th

January, 2019 and again on the very next day she sent an email to La Martiniere

School authority requesting the authority to grant her daughter 15 days leave. In

the said email she clearly mentioned that she will return Kolkata immediately

after the dispute between her and her husband is sorted out by Law. According

to Mr. Kapoor this double standard adopted by the petitioner shows her mala fide

and she herself is not sure where the minor of the family will ordinarily reside.

17. Mr. Kapoor further submits that while disposing CO 622 of 2019, Hon’ble

Sahidullah Munshi, J had dealt with the question of jurisdiction in detail.

Practically the application under Section 24 of the Code of Civil Procedure was

filed by the petitioner challenging the jurisdiction of the learned District Judge,

South 24 Parganas at Alipore to try the guardianship application filed by the

opposite party. The Hon’ble Judge took into consideration of factual aspects of

the matter and legal provisions involved therein and held that the learned

District Judge, South 24 Parganas at Alipore has jurisdiction to try the said

application. The said judgment/order passed in CO 622 of 2019 was affirmed by

the Hon’ble Supreme Court. In view of such circumstances, jurisdictional

question cannot be reopened in the instant proceeding.

18. In reply thereto Mr. Kapoor submits that while dismissing the special leave

petition, the Hon’ble Supreme Court clearly left the question as to the jurisdiction

of the court of the learned District Judge, South 24 Parganas open. The order of
the Hon’ble Supreme Court in Special Leave Appeal (C) No.18641 of 2019 has to

be given a reasonable meaning and the finding of jurisdiction in the judgment

passed in CO 622 of 2019 cannot be held to be sustained in view of the Hon’ble

Supreme Court’s order permitting the parties to raise the question of jurisdiction

of guardianship application afresh. It is further argued by Mr. Kar that the scope

of Section 24 of the Code of Civil Procedure and that of Section 9 of the said Act

is altogether different. Mr. Kar refers to page 13 of the Judgment passed by the

Hon’ble Sahidullah Munshi, J and submits that the Hon’ble Judge was pleased

to hold that in view of Section 6 of the Hindu Minority and Guardianship Act,

1956 the opposite party is the natural guardian of the minor, permanent

residence of the opposite party is at Kolkata and the daughter was also residing

at Kolkata. She was taken to without consent of the father and contrary to

Court’s order. Even without taking any transfer certificate, the child was put in a

different school and allegedly got admitted there. The Hon’ble Judge was pleased

to hold further that child was taken to confer jurisdiction upon the District Court

at Birbhum without considering that the child was very much in Kolkata before

the Act VIII case was filed and held that the presumption goes in favour of the

child’s ordinary residence at Kolkata may be for a temporary stay outside with

the mother and that does not create a jurisdiction for the application for custody

of the child.

19. It is submitted by Mr. Kar that Section 6 of the Hindu Minority and

Guardianship Act, 1956 cannot be pressed into action on the aid of Section 9(1)

of the said Act.

20. Mr. Kar once again called upon this Court to consider that when marital

dispute starts between husband and wife and the wife is compelled to stay at her

paternal home, the said place is considered as ordinary residence of the

petitioner. Since the minor has been residing with her mother, her mother’s place

of residence is the place where the minor ordinarily resides. In such view of the

matter, the District Court at Birbhum has the territorial jurisdiction to try the

guardianship application filed by the opposite party.

21. Similar question came up for consideration before the Division Bench of

the High Court at Kerala in the case of Divya J. Nair vs. S.K Sreekanth reported

in (2018) 4 KLT 620 : 2018 SCC Online KER 3375. Paragraph 9 and 10 of the

said report is important and relevant in order to decide the issue involved in the

instant revision:-

“9. The question as to ‘ordinary residence’ of a minor is always to be
decided on the facts and particulars of each case. The expression
‘where the minor ordinarily resides’ excludes places to which the minor
may be removed at or about the time of the filing of the application for
the enforcement of the guardianship and custody of the minor. Where
the application is filed soon after such removal, the place of such
removal has to be ignored for the purpose of determining the
jurisdiction of the court to entertain the application. The new place, to
which the minor may have gone or may have been removed, can
become the place of ordinary residence of the minor only after the
minor has settled down at that place for a reasonably long period.
Actual place of residence of the minor at the time of filing the
application does not necessarily determine the jurisdiction of the court.
Mere factual residence at a place at the time of the proceeding is not
sufficient to confer jurisdiction. Ordinary residence means more than a
temporary residence, even though such residence is spread over a long
period (See Sarada Nayar v. Vayankara Amma, 1957 KLT 466).

10. “Residence” has a connotation in law. It is not meant to take in
places of temporary stay, however long the stay may be. Though a
casual residence is also residence in a way, such transitory residence
is not meant to be included within the purview of residence in law,
unless a particular context justifies its inclusion. Permanent residence
is the place where a person is expected to be ordinarily found. The
place where mere physical presence is found may not necessarily be
the place where he ordinarily resides. The expression “ordinarily
resides” connotes a regularly settled home and not a place of stay
where the children are obliged to dwell by force of circumstances or
compulsion of the employment of parents (See Chandy v. Mary 1988
(1) KLT 611).”

22. A close reading of the observation of the Division Bench of Kerala High

Court as quoted above suggests that the word “Ordinarily resides” do not have

the same meaning as “residence at the time filing of an application”. The mere

fact that a minor child has to temporarily go outside the ordinary residence due

to marital dispute between the husband and wife does not confer the jurisdiction

upon a District Court where the child temporarily resides. The expression “the

place where the minor ordinarily resides,” in my opinion, means the place where

the minor generally resides and would be expected to reside but for a special

circumstance. I am not unmindful to note, rather, I am in agreement with the

learned Senior Counsel on behalf of the petitioner that in case of marital dispute

between husband and wife paternal home of the wife is the only place where she

can take shelter when she leaves her matrimonial home with her minor child, the
mother’s residence should be considered as the ordinary residence of the minor.

However, in such a case, intention of the mother is required to be looked into

from the factual background of each and every case. Act VIII Case No.17 of 2019

was filed by the opposite party on 5th February, 2019. It is alleged in the said

guardianship application that on 24th November, 2018 the petitioner left her

matrimonial home voluntarily without the permission of the opposite party with

the minor child of the family and took shelter in a flat at South City Residency,

Prince Anwar Shah Road, Kolkata. Subsequently, during Christmas Vacation of

the minor the petitioner left her Kolkata residence and went to , Birbhum with

the child. On 16th January, 2019 she wrote to the La Martiniere School authority

to grant 15 days leave to her child. Therefore, it was the intention of the

petitioner at least on 16th January, 2019 that the minor would continue her

studies in La Martiniere School for Girls, Kolkata. Thus, taking into consideration

the aforesaid facts, it appears that immediately before the institution of Act VIII

case by the opposite party, the minor was taken to by her mother. While she was

staying at , she expressed her desire to continue her child’s education at Kolkata.

Well settled is the law that if a child is removed to a place, the place of such

removal will be ignored for the purpose of determining the jurisdiction of the

Court to entertain the application and in spite of such removal, the minor will be

deemed to have her residence at the place where he or she was ordinarily

residing and the new place to which the minor may have gone or may have been

removed will become the place of ordinary residence of the minor only after the

minor has settled down at that place for a reasonably long period and the
residence passed the test of casual or temporary residence. The expression

“where the minor ordinarily resides” in Section 9(1) of the said Act appears to

have been deliberately used to exclude places to which the minor may be

removed at or about the time of filing of the application for the enforcement of

guardianship and custody of the minor. The phrase “ordinarily resides” indicates

minor residence even at the time of presentation of the application. The emphasis

is undoubtedly on the minor’s ordinary place of residence.

23. In the instant case the minor was born in Kolkata. She used to stay at

Kolkata till the last week of December, 2018. She was admitted in La Martiniere

School for Girls. She continued her studies in the school till December, 2018.

After the petitioner left her matrimonial home with the minor she took shelter in

a flat at South City Residency, Prince Anwar Shah Road, Kolkata. Till date the

petitioner did not make any formal application for transfer of her minor child

from La Martiniere School for Girls to . This Court is not in a position to rely

upon two money receipt purportedly issued by one St. Paul’s School, Vidyadanga,

Rampurhat and one St. Paul’s International School at Munsuba. In the money

receipt issued by the School at Munsuba, even the name of the minor or date of

admission are not mentioned. Therefore, this Court has every reason to hold that

those documents were created for the purpose of creating jurisdiction of the

District Court at Birbhum. Since the minor was ordinarily residing at Kolkata

since her birth and she was pursuing her studies in a premier school at Kolkata,

I cannot but to hold that the minor’s ordinary place of residence is within the

jurisdiction of the learned District Judge, South 24 Parganas at Alipore. In view
of what has been stated above, I do not find any illegality or material irregularity

in the impugned order dated 10th January, 2020.

24. The instant revision under Article 227 of the Constitution of India is

accordingly dismissed on contest, however without cost.

25. It is made clear that while disposing of the instant application, this Court

had no scope to consider the question of paramount interest and welfare of the

child. This issue is left open for independent adjudication by the learned Court

below. The learned Court below will of course decide such issue without being

influenced in any manner on the observation made by this Court while deciding

territorial jurisdiction of a particular District Court.

(Bibek Chaudhuri, J.)

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