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Smt. Soumi Mukherjee vs Sri. Manas Mukherjee on 21 June, 2019

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

The Hon’ble JUSTICE BIBEK CHAUDHURI

CO 671 of 2019

Smt. Soumi Mukherjee
Vs.
Sri. Manas Mukherjee

For the Petitioner: Mr. Debjit Mukherjee,

Mr. Susmita Chatterjee.

For the Opposite Party: Mr. Avijit Bardhan,
Mr. Avik Ghatak,
Mr. Salman Hasan
Heard on: June 11, 2019.
Judgment on: June 21, 2019.

BIBEK CHAUDHURI, J. : –

1.

This is an application under Section 24 of the Code of Civil Procedure

(hereafter the CPC) filed by the wife/petitioner against her husband/opposite

party praying for transfer of Act VIII Miscellaneous Case No.3 of 2018 as well as

Act VIII Miscellaneous Case No.8 of 2018 from the court of learned District

Judge, Asansol, West Burdwan to the court of learned District Judge, Hooghly.

2. Factual matrix of the case leading to filing of the instant application is

very short and stated below:-

3. Marriage of the petitioner with the opposite party was solemnized

according to the Hindu Rites and Ceremonies on 21st April, 2014. The petitioner

gave birth to a male child in the said wedlock between her and the opposite party

on 10th July, 2015. So, the only son of the petitioner and the opposite party is

presently aged about 4 years. During their marital life, the petitioner noticed that

her husband/opposite party has been living an immoral life. It is alleged that the

opposite party maintains intimate relation with another lady during the

subsistence of his marriage with petitioner. As the opposite party lives an

immoral life, it was not possible for her to live with her husband under one roof

and she left her matrimonial home alongwith her minor child and took shelter at

her mother’s house at 455/1 TN Mukherjee Road, Makhla, Hooghly. The

petitioner admitted her son in a Montessori School under the name and style of

Kidzee, Uttarpara, Hooghly. Subsequently, the said child was admitted to

Methodist School, Dankuni in the District of Hooghly, governed under Indian

Council of Secondary Education (ICSE).

4. Sometimes in February, 2019 the petitioner came to know after receiving

summons which was addressed to her, but sent to her brother’s house at

Santragachi in the district of Howrah that the opposite party has filed an

application under Section 12 of the Guardians and SectionWards Act, 1890 praying for

interim custody of their minor son. It is also learnt that the opposite party has

filed an application before the learned District Judge, Paschim Burdwan at

Asansol under Section 25 of the Guardians and SectionWards Act (hereafter ‘the said

Act’) praying for custody of a minor child. It is contended by the petitioner that

she does not reside with her husband due to marital discord and she along with
her son has been residing at Makhla, Hooghly since the said minor son of the

petitioner has been ordinarily residing in Hooghly, learned District Judge

Hooghly has the territorial jurisdiction to try an application under Section 25 of

the said Act filed by the opposite party. It is further pleaded by the petitioner that

the petitioner and her minor son are not in a position to contest the said

proceeding under Section 25 of the Guardians and SectionWards Act at Asansol

travelling a distance of about 400 Km from her present place of residence.

Therefore, the petitioner has prayed for transferring the aforesaid miscellaneous

cases to the court of the learned District Judge, Hooghly for trial and disposal.

5. The opposite party has been contesting the instant proceeding by filing an

affidavit-in-opposition wherein and whereunder he denied entire allegation made

out against him in the application under Section 24 of the CPC. It is specifically

pleaded by the opposite party that after the birth of their son on 10th July, 2015,

the opposite party purchased a self contained residential flat for the development

and wellbeing of the child in close vicinity of eminent schools in Asansol. The

said child was admitted to a prep-school under the name and style of Happy Feet

at Asansol. Unfortunately the petitioner has no intention to lead happy conjugal

life with the opposite party. She left her matrimonial home with her child

sometimes on 27th March, 2018 without any valid reason. The opposite party

tried his level best to settle the marital dispute amicably, but failed. The

petitioner even did not allow him to meet the child even occasionally. Finding no

other alternative, the opposite party filed an application under Section 25 and

another application under Section 12 of the said Act, praying for permanent and

interim custody of the person of their minor child. The opposite party has
vehemently denied the allegation made by the petitioner to the effect that he has

been living an immoral life and maintaining intimate relation with other women.

It is further pleaded by the opposite party that future education and all round

development of the child would be better taken care of at Asansol in the district

of West Burdwan than Makhla, Hooghly. The opposite party further denied that

the petitioner took shelter at her mother’s house at Makhla in the district of

Hooghly. It is contended by him that the petitioner sent a draft application under

Section 13B of the Hindu Marriage Act praying for mutual divorce against the

opposite party from his brother’s residence at Satragachi in the district of

Hawrah. It is absolutely doubtful as to whether the petitioner has been residing

at Makhla in the district of Hooghly. The petitioner is an employee of Eastern

Coal Fields Limited and has been working as a staff nurse at Sanctoria Hospital,

Eastern Coal Fields Limited near Asansol. She is performing her duties from

Asansol which clearly proves that she does not reside at Makhla in the district of

Hooghly. It is not pleaded by the petitioner that she is regularly commuting to

her place of work to Asansol from Hooghly. Had it been so, the petitioner would

not face any difficulty to attend Asansol Court to contest the application under

Section 25 of the said Act filed by the opposite party. It would be evident from

financial transaction and withdrawal of money by the petitioner through ATM

Debit Card from the joint bank account maintained in the name of both the

petitioner and opposite party at State Bank of India, Sanctoria Branch. From the

transaction details of the Savings Bank Account, maintained jointly by the

petitioner and opposite party, it is found that the petitioner withdrew money from

the Savings Bank Account, Sanctoria Branch through ATM till 26th March, 2019.
Therefore, it is submitted by the opposite party that the petitioner does not reside

with her child at Makhla in the district of Hooghly. She wrongfully confined her

child under the care of her mother at Makhla and deprived him of love and

affection of both the father and/or mother. Therefore, the opposite party has

prayed for dismissal of the instant revision under Section 24 of the CPC.

6. The petitioner, in turn, has filed an affidavit-in-reply controverting the

allegation made out by the opposite party against her in the affidavit-in-

opposition. It is further contended by the petitioner that since 26th June 2018

her minor child has been residing permanently at 455/1 TN Mukherjee Road,

Makhla in the district of Hooghly with the petitioner and his grand-mother.

Therefore, the learned District Judge Hooghly has alone the jurisdiction to try an

application under Section 25 of the said Act for custody of the person of the

minor son as the said minor son ordinarily resides within the jurisdiction of the

learned District Judge Hooghly. The petitioner further pleaded that so long they

were living with the opposite party, the opposite party did not purchase any

residential flat at Asansol as alleged. The petitioner herself admitted her child to

a prep-school under the name and style of Happy Feet and there was no

contribution of the opposite party in such matter. It is, however, admitted by the

petitioner that for the purpose of her employment, the petitioner has to stay for

sometime at Asansol and whenever she gets leave, she comes to Makhla, Hooghly

to stay with her minor son. The petitioner further pleaded that she deposits her

salary in the joint account maintained in her name as well as in the name of the

opposite party. She has withdrawn money from the said joint account through

ATM Debit Card from the amount which she deposits from her salary. She never
withdrew any money belonging to the opposite party. Lastly, it is contended by

the petitioner that their minor son has been ordinarily residing within the

jurisdiction of the learned District Judge, Hooghly. He has been admitted to a

ICSE affiliated school at Dankuni and therefore, the Act VIII Miscellaneous Case

No.3 of 2018 under Section 25 of the Guardians and SectionWards Act as well as Act

VIII Miscellaneous Case No.8 of 2018 under Section 12 of the said Act may be

transferred to the court of learned District Judge, Hooghly from the court of

learned District Judge, Asansol.

7. From the pleadings of the parties, following undisputed, rather admitted,

factual circumstances can be ascertained:-

a) Petitioner is the legally married wife of the opposite party.

b) In the wedlock between the petitioner and the opposite party, the

former gave birth to a mail child who is now aged about 4 years.

c) After the birth of the child conjugal life of the petitioner and the

opposite party suffers from marital differences and discord.

d) The petitioner left her matrimonial home in March, 2018 with her

minor child and took shelter at her mother’s house at 455/1 TN

Mukherjee Road, Makhla in the district of Hooghly.

e) The petitioner is an employee of Eastern Coal Fields Limited,

Asansol and has been working as a staff nurse at Sanctoria Hospital

near Asansol.

f) Till date none of the parties has filed any matrimonial proceeding

praying for dissolution of marriage by a decree for divorce or judicial

separation against other.

g) Till date both the parties have been maintaining savings bank

account jointly in State Bank of India, Sanctoria Branch.

h) Since 2018 till date the minor son of the parties has been residing

at Makhla in the district of Hooghlly.

8. Mr. Debjit Mukherjee, learned Advocate for the petitioner at the outset

draws my attention to Section 25 of the Guardians and SectionWards Act, 1890 which

runs thus:-

“25. Title of guardian to custody of ward – (1) If a ward leaves or is
removed from the custody of a guardian of his person, the court, if it
is of opinion that it will be for the welfare of the ward to return to the
custody of his guardian, may make an order for his return and for
the purpose of enforcing the order may cause the ward to be arrested
and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the
power conferred on a Magistrate of the first class by Sectionsection 100 of
the Code of Criminal Procedure, 1882 (10 of 1882).
(3) The residence of a ward against the will of his guardian with a
person who is not his guardian does not of itself terminate the
guardianship.

9. From a plain reading of the above provision contained in Section 25 of the

said Act, it is ascertained that a court of competent jurisdiction can make an

order for return of the person of a ward and deliver into the custody of the

guardian if a ward leaves from the custody of a guardian or is removed from the

custody of such a guardian of his person. Paramount consideration for returning

the ward and delivering his/her person into the custody of the guardian is the

welfare of the ward.

10. Sub-section 3 of Section 25 clearly states that the residence of a ward

against the will of his guardian with a person who is not his guardian does not of

itself terminate the guardianship.

11. Mr. Mukherjee next leads me to Section 9 of the Guardians and SectionWards

Act. Section 9 runs thus:-

“9. Court having jurisdiction to entertain application.- (1) If the
application is with respect to the 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.

(2) If the application is with respect to the guardianship of the
property of the minor, it may be made either to the District Court
having jurisdiction in the place where the minor ordinarily resides or
to a District Court having jurisdiction in a place where he has
property.

(3) If an application with respect to the guardianship of the property
of a minor is made to a District Court other than that having
jurisdiction in the place where the minor ordinarily resides, the
Court may return the application if in its opinion the application
would be disposed of more justly or conveniently by any other
District Court having jurisdiction.”

12. Next he refers to Section 4(5) of the Guardians and SectionWards Act. It is set out

hereinbelow:-

“4.(5) “the Court” means–

(a) the District Court having jurisdiction to entertain an application
under this Act for an order appointing or declaring a person to be a
guardian; or

(b) where a guardian has been appointed or declared in pursuance of
any such application–

(i) the Court which, or the Court of the officer who, appointed or
declared the guardian or is under this Act deemed to have appointed
or declared the guardian; or

(ii) in any matter relating to the person of the ward the District Court
having jurisdiction in the place where the ward for the time being
ordinarily resides; or

(c) in respect of any proceeding transferred under Sectionsection 4A, the
Court of the officer to whom such proceeding has been transferred;”

13. Referring to the above statutory provisions, it is submitted by Mr.

Mukherjee that marriage of the petitioner and the opposite party was solemnized

on 21st July, 2014. The petitioner gave birth to a male child on 10th July, 2015.

Since March 2018, the petitioner has been residing with her minor child at

Makhla in the district of Hooghly. The petitioner has submitted documents where

from it can be found that the said minor child of the petitioner has been admitted

to Methodist School, Dankuni. In the year 2018 he used to read in a Montessori

School under the name and style of Kidzee situated at Uttarpara, Hooghly.

Therefore, it is clear that the said minor child of the petitioner and the opposite

party has been residing at Makhla in the district of Hooghly. It is strenuously

urged by Mr. Mukherjee that Section 9 read with Section 4(5)(b)(ii) of the said Act

confers jurisdiction to entertain an application with respect to the guardianship

of the person of the minor and the district court having jurisdiction in the place

where the ward for the time being ordinarily resides, as the jurisdiction to

entertain such application.

14. According to Mr. Mukherjee the term “ordinarily resides” is different from

the term “permanently resides”. Father’s residence may be the permanent

residential address of a minor child but for the purpose of the Guardians and

SectionWards Act, the District Court in the place where the child “ordinarily resides” has

the jurisdiction to entertain an application for custody of minor child. In support

of his contention, Mr. Mukherjee refers to a decision of the Division Bench of this

Court in the case of SectionSri Soumendra Malik vs. Smt. Tumpa Malik reported in
(2018) 1 CAL 314 (HC). Paragraph 12 of the aforesaid report is important for our

purpose which is quoted below:-

“12. It has to be appreciated that the role of the court does not end with
the appointment of a guardian over a minor. Nor does the responsibility of
the court cease with the appointment of a guardian. The very nature of
the provisions of the Guardians and SectionWards Act, 1890 tend to show that
the court has to supervise the work of the guardian, not to remove its
watchful eyes from the minor, ensure that the ward’s welfare is being
looked after by the guardian, his or her property is being taken care of by
him and so on. Therefore, this court cannot be far removed from the
minor. The ward has to be accessible to the court as much as the court
should be accessible to the guardian and any other interested person in
his or her welfare. Hence, the provision that only the court within the
jurisdiction of which the minor ordinarily resides has the jurisdiction to
entertain proceedings under the said Act.”

15. Mr. Mukherjee next refers to another decision of a Coordinate Bench of

this Court in the case of SectionRuhi Sahina vs. Syed Masidur Rahman reported in

2018 (4) ICC 166 (Cal). In the said report, a coordinate Bench of this Court

relying on the decision in the case of SectionSubhadip Laskar vs. Sanjukta Laskar

reported in 2011 (3) CHN 575, held that it is the place where the minor is

presently residing is to be considered for the purpose of determining the

jurisdiction where the application under Act VIII is to be filed. In the said

judgment also, this Court gave answer to the legislative intent, why the words

and expression “the child ordinarily resides” has been used, it is held that in

order to enure the benefit of the child, the legislature consciously fixes the

jurisdiction of the court to a place where “the child ordinarily resides” because

when the custody matter would be heard, the child would be brought to the

court, and, it is not expected that at every hearing day, the child would be
brought from the place where he ordinarily resides to another place where the

application is filed travelling about 400 Km in both ways.

16. Mr. Mukherjee further submits that the opposite party in his affidavit-in-

opposition has stated that the petitioner does not reside at Makhla in the district

of Hooghly, as alleged in the petition. She works as a staff nurse in Sanctoria

Hospital near Asansol. In her affidavit-in-reply, the petitioner has admitted the

said fact and further stated that whenever she gets leave, she stays with her

minor child at Makhla. According to Mr. Mukherjee, it is immaterial if the

petitioner regularly resides with the minor child or not. The matter in issue in the

instant proceeding is to find out the answer where the child ordinarily resides. It

is true that a temporary residence of a minor for few days or camping here and

there with either of the parents by the minor being the victim of marital

differences between the parties, cannot be treated as a place of ordinary

residence of the child. But if it is found that the child stays in a particular place

after being removed from her paternal home principally under the care and

protection of the mother; the child has been pursuing his/her studies from that

place, such a place should be considered as the place where “the child ordinarily

resides”.

17. Mr. Avijit Bardhan, learned Advocate for the opposite party, on the other

hand submits that the question as to whether the minor is residing at a

particular 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 controversy. In
support of his contention, he relies upon a decision of the Hon’ble Supreme

Court in the case of Ruchi Majoo vs. Sanjeev Majoo reported in (2011) 6 SCC

479. According to Mr. Bardhan, when a particular question involves a disputed

question of fact, the same cannot be decided without evidence that may be

adduced by the parties during trial of the application under Section 25 of the

said Act.

18. It is further submitted by Mr. Bardhan that the Hon’ble Supreme Court in

the judgment of Ruchi Majoo (supra) got the opportunity to examine the true

purport of the expression “ordinarily resides” appearing in Section 9(1). The

Hon’ble Supreme Court was pleased to observe as follows:-

“26…This expression has been used in different contexts and
statutes and has often come up for interpretation. Since liberal
interpretation is the first and the foremost rule of interpretation it
would be useful to understand the literal meaning of the two words
that comprise the expression. The word `ordinary’ has been defined
by the Black’s Law Dictionary as follows:

“Ordinary (Adj.)- :Regular; usual; normal; common; often recurring;
according to established order; settled; customary; reasonable; not
characterized by peculiar or unusual circumstances; belonging to,
exercised by, or characteristic of, the normal or average individual.”
The word `reside’ has been explained similarly as under:
“Reside. -live, dwell, abide, sojourn, stay, remain, lodge. (SectionWestern-
Knapp Engineering Co. V. Gillbank, F 2d at p. 136.) To settle oneself
or a thing in a place, to be stationed, to remain or stay, to dwell
permanently or continuously, to have a settled abode for a time, to
have one’s residence or domicile; specifically, to be in residence, to
have an abiding place, to be present as an element, to inhere as
quality, to be vested as a right. (Bowden v. Jensen, SW 2d at p.

349.)”

27. In Websters dictionary also the word `reside’ finds a similar
meaning, which may be gainfully extracted:

“1. To dwell for a considerable time; to make one’s home; live. 2. To
exist as an attribute or quality with in.”

19. Mr. Bardhan also refers to a judgment of this Court delivered by a

Coordinate Bench in the case of SectionDr. Avijit Ghosh @ Dr. Abhijit Ghosh vs. Dr.

Jayita Ghosh (Nee Chatterjee) reported in (2015) 3 CHN 487 (Cal). It is

necessary to state the factual aspect of the above mentioned report. The

wife/opposite party filed an application under Section 24 of the said Act praying

for her appointment as guardian of the minor son till he attains majority and

other consequential reliefs. The husband/petitioner challenged maintainability of

the said proceeding under Section 24 on the ground that on the basis of a

compromise decree, the opposite party was entitled to take the child in Malayasia

for his well being under his custody. The trial court held the said proceeding

maintainable. The husband challenged the said order passed by the learned trial

court in revision before this Court. A Coordinate Bench of this Court placing

reliance upon Ruchi Majoo (supra) and other judgments of SectionJagir Kaur vs.

Jaswant Singh reported in AIR 1963 SC 1521 and SectionKuldip Nayar vs. Union of

India reported in (2006) 7 SCC 1 held that to interpret the expression “ordinarily

resides” the intention of the parties is to be gathered on the basis of evidence and

not on the abstract narration of the facts in the application. It is further held that

the intention is essentially a question of fact, which sometime assumes the

character of mixed question of facts and law and such intention is required to be

gathered not only from the pleadings, but also from the evidence produced before

the court, both oral and documentary. This Court, therefore dismissed the
revision filed by the husband and directed the trial court to decide the issue on

full fledged trial.

20. Coming to the instant case, Mr. Bardhan submits that in order to

ascertain jurisdiction of the court to entertain an application under Section 25 of

the said Act, intention of the not only the parties but also the minor’s intention is

to be looked into and such decision cannot be taken on abstract pleading of the

parties, but on the basis of the evidence that will be adduced by the parties as

well as the minor.

21. Mr. Bardhan draws my attention to Paragraph 36 of the judgment in the

case of Sri Soumendra Malik (supra). Paragraph 36 of the said report reads

such:-

“In cases covered under Section 25, the intention of the legislature is
as I could gather is undoing the mischief of such removal of the ward
from the custody of the lawful guardian, provided of course, that the
return to the custody of the guardian is to the benefit of the minor.
Therefore, provided that the guardian applies for such return to his
custody within a reasonable time I hold that the District Court
having jurisdiction must always be the District Court which
exercises jurisdiction over the place where the ward has been staying
before being removed from the custody of the guardian provided
always that such application is made by the guardian with
reasonable alacrity and any delay in making the application
explained to the satisfaction of the learned District Judge in
question.”

22. Thus, the learned counsel for the opposite party concludes that in cases

covered under Section 25 of the said Act, the District Court having jurisdiction

must always be the District Court which exercises jurisdiction over the place

where the ward has been staying before being removed from the custody of the
natural guardian provided always that such application is made by the guardian

with reasonable alacrity and any delay in making the application explained to the

satisfaction of the learned District Judge in question.

23. There is no dispute that the question as to whether a minor ordinarily

resides in a particular place or not, is undoubtedly a question of fact. In a legal

proceeding , when a fact is asserted by one party and the same is denied by the

other, it gives rise to an issue of fact which requires to be adjudicated on the

basis of evidence. It is a settled principle of law that a fact not disputed need not

be proved. In the application under Section 24 of the CPC, it is categorically

stated by the petitioner that her minor son has been residing at Makhla in the

District of Hooghly since March, 2018. The said fact has not been disputed by the

opposite party. The opposite party has raised dispute as to the present residence

of the petitioner – whether it is at Santragachi or Makhla. The opposite party also

pleaded that the petitioner stays at Asansol for her employment. But the facts

that their minor child has been residing in Makhla and pursuing his studies at

Methodist School, Dankuni, are not challenged. The contentions of the petitioner

as to the “ordinary residence” of the minor remains uncontroverted. Order 8 Rule

5(1) of the CPC provides that every allegation in the plaint, if not denied

specifically or by necessary implication, shall be taken to be admitted except as

against the party under disability. Under Rule 5(2) of Order 8, it is open to the

Court to pronounce a judgment on facts admitted. The rule is, of course,

permissive in nature. In support of my decisions, following decisions may be

relied on:-

1. Sandhya Rani Biswas vs. Tarak Chandra Ghosh Anr :(2009)

1 CLJ 228

2. SectionStandard Chartered Bank vs. Andhra Bank Financial Services

Ltd Ors : (2010) 1 SCC 207

3. Muddasani Venkata Narsaiah (Dead) through Legal

Representatives vs. Muddasani Sarojana : (2016) 12 SCC 288.

24. Bearing the above mentioned basic principles of law relating to proof of a

controversial fact, let me consider at the outset as to whether in this case there is

any controversy with regard to the question where the minor child of the parties

“ordinarily resides”.

25. Surprisingly enough, none of the parties has annexed the application

under Section 25 of the said Act which the opposite party has filed praying for

custody of their minor child. However, in Paragraph 7 of the affidavit-in-

opposition, it is alleged by the opposite party that the petitioner left her

matrimonial home, along with the child, in March 27, 2018, even though there

had been no cogent reason or necessity for her to do so. It is also alleged that the

petitioner and her paternal relatives prevented the opposite party and his family

members from meeting and/or communicating with the said minor child. So he

was left with no option, but to file an application under Section 25 of the said Act

praying for custody of his minor child.

26. Thus it is an admitted fact that from March 27, 2018 the minor child of

the parties does not reside at her paternal home. It is also not disputed that the

said child has been residing for about 1½ years at Makhla in the district of

Hooghly. He was initially admitted to Montessori School at Uttarpara, Hooghly. In
2019, he was admitted to Methodist School, Dankuni. Admittedly since 27th

March, 2018 the minor child never visited his paternal home at Asansol. In view

of such admitted facts and circumstances, this Court can safely hold that at

present the minor child of the parties “ordinarily resides” at Makhla within the

jurisdiction of Hooghly.

27. In Ruchi Majoo (supra) the Hon’ble Supreme Court held that the question

where a minor “ordinarily resides” is a question of fact. Sometimes such question

assumes the character of a mixed question of law and fact and when a

controversy question fact arises, it can only be decided on the basis of evidence

adduced by the parties. However, in the said reported decision, the Hon’ble

Supreme Court decided the question of jurisdiction of the court on the basis of

documents in the form of e-mails exchanged between the appellant and the

respondent with regard to the custody of the child and annexed with the

application.

28. In Sri Soumendra Malik (supra) the Division Bench of this Court was

pleased to hold that ordinary place of residence of a child depends on the factor

where the child resides for a considerable period of time and where the child

receives his initial education and upbringing. Considering the above factors

amongst others, the Division Bench of this Court held that the appellant was not

able to demonstrate that the ordinary place of residence of the minor was not at

Baranagar. In the aforesaid reported decision, the minor child used to reside in

the residence of his mother’s maternal aunt (masi). The Division Bench of this

Court held that the minor ordinarily resided in the said house at Baranagar.

29. Mr. Bardhan tries to impress upon this Court that the minor child of the

parties actually does not reside under the care and protection of his mother, the

petitioner herein, because the petitioner is an employee of Eastern Coal Fields

Limited and works as a nurse at Sanctoria Hospital near Asansol. Since the

petitioner does not ordinarily reside at Makhla in the district of Hooghly with the

minor child, the said residence cannot be treated as ordinary residence of the

minor. I cannot accept such submission made by Mr. Bardhan. Requirement of

the statute is “where the ward for the time being ordinarily resides”. It does not

require that the father or mother must ordinarily reside with the ward. Such

question may be raised at the time of final hearing of the application under

Section 25 of the said Act. The opposite party may raise the question, if the said

minor normally gets love and affection, care and protection of the mother or not.

In the instant proceeding, we are concerned with the question as to whether the

minor ordinarily resides at Makhla in the district of Hooghly or not. In view of

uncontroverted facts and circumstances, irresistible answer to the question is in

the affirmative.

30. Before I part with, I must record a note of disagreement with regard to the

observation made by a learned Judge of this Court in Paragraph 36 of Sri

Soumendra Malik’s case (supra). Section 4(5)(b)(ii) read with Section 9 of the said

Act in clear and unequivocal terms confer jurisdiction upon the District Court in

the place where the minor ordinarily resides to entertain an application under

Section 25. By no stretch of imagination, the jurisdiction of the court can

otherwise be fixed considering some extraneous circumstances to the effect that

the minor was forcibly removed by one of the parents or that the minor was
wrongfully confined to some place which cannot be treated as ordinary residence

of the minor. Needless to say, a statutory provision must be interpreted in its

plain and literal meaning. Importation of certain imaginary circumstances to fix

the jurisdiction of the court at a place other than what has been stated in the

Statute, is, in my humble opinion not permissible.

31. It will not be out of place to mention here and now that in normal

circumstances, a minor child usually resides with the parents. Abnormal

situation in marital life arises out of matrimonial dispute resulting in separate

living of the husband and wife. In such cases, minor child obviously resides with

either of the parents. Under such background, applications for guardianship of a

minor under Section 24 or custody of minor child under Section 25 of the said

Act are filed. The Statute confers jurisdiction keeping in mind the benefit of the

minor so that he/she may not be troubled to travel from one place to another

being a pawn in the battle between his parents. Statutory provision as to the

jurisdiction of the court cannot be stretched out to confer the jurisdiction to

entertain such applications to the District Court having jurisdiction in the place

where the child was born or permanent residence of the lawful guardian of the

ward situates or the place from where he was allegedly removed.

32. I am also not unmindful to note that the ratio of the judgment in the case

of Dr. Avijit Ghosh (supra) is not applicable under the facts and circumstances of

this case.

33. In view of the above discussion, the instant revision is allowed on contest,

however without cost.

34. SectionThe Act VIII Miscellaneous Case No.3 of 2018 as well as Act VIII

Miscellaneous Case No.8 of 2018 be transferred to the court of the learned

District Judge, Hooghly from the court of the learned District Judge, Asansol,

Paschim Burdwan for trial and disposal.

35. The office is directed to send a copy of this order to the learned District

Judge Asansol, Paschim Burdwan and the learned District Judge Hooghly for

information and compliance.

Urgent photostat certified copy of this order, if applied for, be given to the

parties as expeditiously as possible.

(Bibek Chaudhuri, J.)

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