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Smt. Riya Das Ghosh @ Smt. Riya … vs Sri Arghya Ghosh on 20 February, 2019

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20.02.19

Srimanta
List – S/L
Sl. No. 23
Ct. No. 25
C. O. 3893 of 2018

Smt. Riya Das Ghosh @ Smt. Riya Ghosh Nee Das

-Vs.-

Sri Arghya Ghosh

Mr. Chittapriya Ghosh, Adv.,
Mr. Samir Kumar Adhikari, Adv.,
Ms. Priyanka Saha, Adv.

…for the petitioner.

In terms of order dated 5th December, 2018, learned Advocate for the petitioner served
the copy of the application under Section 24 of the Code of Civil Procedure to the learned
Advocate for the opposite party by personal service. The affidavit-of-service has been filed
and be kept with the record.

Application under Section 24 of the Code of Civil Procedure praying for transferring Act
VIII Case No. 110 of 2018 pending before the 15th Court of learned Additional District Judge,
Alipore, South 24-Parganas to the Court of the learned District Judge at Suri.

It is stated by the petitioner that her marriage with the opposite party was solemnized
according to Hindu Rights and Customs on 13th December, 2012. In the wedlock between the
petitioner and the opposite party, a male child was born on 27th January, 2015 who is now
aged about four years.

Following a matrimonial dispute, the petitioner filed a complaint under Section
498A/406/506 against the opposite party at P.S.- Suri on the basis of which Suri P.S. Case No.
194 of 2018 was registered against the opposite party on 4th May, 2018. The opposite party
entered appearance in the said case. The petitioner also filed another proceeding under
Section 12 of the Protection of Women from Domestic Violence Act, 2015 praying for monetary
relief in the Court of the learned Chief Judicial Magistrate, Birbhum at Suri. The said case is
also pending. Now only to harass the petitioner, the opposite party has filed a case under the
Guardians and Wards Act, 1890 with a prayer to hand over their minor male child permanently
to the custody of the opposite party on the ground that he is the legal guardian of the child.

It is submitted by the learned Advocate for the petitioner that in view of the provision
of Section 9(1) of the Guardians and Wards Act an application for guardianship and other
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consequential reliefs like custody ought to have been filed in the Court of competent
jurisdiction where the child permanently resides. In the instant case the child has been
residing at Suri under the custody of his mother so Act VIII Case No. 110 of 2018 ought to
have been filed at Suri. It is further submitted by the learned Advocate for the petitioner that
the opposite party has been attending Suri Court to defend the cases instituted against him
under Indian Penal Code and Protection of Women against Domestic Violence Act, 2005.
Therefore, for all practical purposes the Act VIII Case No. 110 of 2018 should be transferred to
the Court of the learned District Judge, Birbhum for disposal.

It is an undenying fact that a case under Guardianship and Wards Act is to be filed in a
competent Court in whose jurisdiction the minor child resides. Though according to legal
interpretation, the opposite party is the lawful guardian of the child, the child being four years
of age, mother/petitioner should be regarded as the lawful custodian. The child has been
residing with her mother at Suri in the district of Birbhum. Therefore, for the sake and
convenience of the minor child, Act VIII Case No. 110 of 2018 ought to be transferred to the
Court of the learned District Judge, Birbhum.

For the reasons recorded above, the application under Section 24 of the Code of Civil
Procedure is allowed.

Act VIII Case No. 110 of 2018 pending in the 15th Court of the learned Additional
District Judge, Alipore be transferred to the Court of the learned District Judge, Birbhum at
Suri for disposal.

Office is directed to send a copy of this order to the 15th Court of the learned Additional
District Judge, Alipore and the learned District Judge, Birbhum at Suri for information and
necessary action.

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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