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Judgments of Supreme Court of India and High Courts

Unknown vs Syed Masidur Rahman on 28 August, 2018

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

BEFORE:

The Hon’ble Justice SAHIDULLAH MUNSHI

C.O. No.2086 of 2017

RUHI SAHINA
… Petitioner (wife)

– Versus-

SYED MASIDUR RAHMAN
… Opposite Party (husband)

Ms. Ujjaini Chatterjee,
Mr. Pinak Mitra

… For the petitioner

Mr. Supratim Laha,
Mr. Parvez Hossain

… For the opposite party

Heard on : 01.08.2018 and 02.08.2018

Judgment on : August 28, 2018.

Sahidullah Munshi, J.:-

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

Procedure seeking transfer of Act VIII case No.18 of 2017 arising out of

Sections 7, 8 and 25 of the Guardians and Wards Act from the Court of

the learned District Judge, Alipore to the Court of the learned District
Judge, Paschim Medinipur. The petitioner herein is the wife who

contends that she was married to the opposite party under the Muslim

rites and rituals on 14.01.2012 and out of their wedlock a male child

was born on 10.02.2015 who is presently aged about three and half

years. The petitioner has filed a complaint against her husband on 26th

February, 2016 under Sections 498A/323/427/34, I.P.C. read with

Sections 3 and 4 of the Dowry Prohibition Act. Such complaint was

lodged with Kotwali Police Station being Kotwali Police Station Case

No.189 of 2016. (Owing to the physical and mental cruelty caused by

the husband particularly stemmed out of demand for more dowry, she

had to leave her matrimonial home at Diamond Harbour and presently

residing at her parental residence at West Medinipur along with her

said minor child below the age of five years).

The husband/opposite party has filed an application on 8th

February, 2017 under Sections 7, 8 and 25 of the Guardians and Wards

Act in the Court of the learned District Judge at Alipore which has been

registered as Act VIII Case No.18 of 2017, seeking custody and

guardianship of the said minor child. A copy of the said application has

been annexed to the petition. The wife/petitioner submitted that the

distance between the Court of the learned District Judge, Alipore and

the place Mirza Bazar where she has been residing with the minor and

the parents in the district of Paschim Medinipur is 135 Kilometers

which is impossible for her being a single lady to attend the Court on
regular basis. Therefore, she has prayed for transfer of the said

proceeding.

That apart, it has also been submitted that at present the

petitioner is having the custody of the said minor child with her at the

said address, Mirza Bazar in the district of Paschim Medinipur.

Learned Counsel appearing for the opposite party/husband

submitted that in the application being Act VIII Case No.18 of 2017, the

petitioner has mentioned that the minor child was residing with his

father at Diamond Harbour whose custody has been taken by the

mother illegally. However, while making such statement no date has

been mentioned since when the said custody has been removed from

the father to the petitioner/mother. Learned Counsel further submitted

that from the revisional application it appears that the petitioner is an

employee under the Life Insurance Corporation of India and is presently

posted at Garhbeta, Paschim Medinipur. Therefore, he submits that

since the petitioner was in custody of the father prior to filing of the Act

VIII case and further that she is employed in Garhbeta, Paschim

Medinipur, being a working lady, she can travel from Paschim

Medinipur to Alipore Court. Learned Counsel submitted that since the

child was in the custody of the father before the application was filed

and since the husband’s residence is at Diamond Harbour which comes

within the jurisdiction of the learned District Judge Alipore, therefore,

he has rightly filed the Act VIII case in the Court of learned District
Judge, Alipore and her prayer for transfer of the said Act VIII case

should be turned down.

After hearing the parties and considering the provisions of Section

9 of the Guardians and Wards Act, 1890, it appears that where the

minor ‘ordinarily resides’ shall be the determining factor for the purpose

of jurisdiction of the Court to entertain an application under the said

provision. Section 9 of the Guardians and Wards Act is set out below :-

“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.”

Section 9 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 a 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 minor has

property.

Learned Counsel appearing for the opposite party/husband has

cited two decisions in the case of –

• Shri Amal Saha – Vs. – Smt. Basana Saha, reported

in (1987) 2 Gauhati Law Reports 84 and

• Konduparthi Venkateswarlu Ors. – Vs. –

Ramavarapu Viroja Nandan Ors., reported in AIR

1989 Ori 151.

Drawing attention to paragraph 8 of the decision in Shri Amal

Saha (supra) learned Counsel submitted that Court shall take into

account of the words and expression “ordinarily resident” which has got

a different meaning than ‘residence’ at the time of application. In the

Statute neither the word ‘residence’, nor the word “ordinarily resident”

is available. What has been mentioned in the Statute is where the

“minor ordinarily resides”. Therefore, no separate interpretation is
necessary. The judgment referred to has no application in the present

case.

Drawing attention to paragraph 6 of the other decision in the case

of Konduparthi Venkateswarlu (supra) the petitioner has sought to

make a submission that the place where the minor was residing earlier

with his father has to be taken into consideration but on going through

the decision it does not appear so rather, the Court observed that where

the minor ordinarily resides means the place of residence of the natural

guardian that gives a jurisdiction to the Court under Section 9(1) but it

is the place of ordinary residence of the minor. The Court further held

that “the question as to the ordinary residence of the minor must be

decided on the facts of each particular case and generally, the length of

residence at a particular place determines the question. The expression

‘the place where the minor ordinarily resides’ means the place where the

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

circumstances.”

Therefore, the ratio of the decision if taken into consideration to

the fact of the present case it will show that the jurisdiction cannot be

taken into consideration to be of learned District Judge, Alipore, but the

place where the minor has been residing now with his mother /

petitioner.

Learned Counsel appearing for the petitioner has relied on a

judgment in the case of Subhadip Laskar – Vs. – Sanjukta Laskar,

reported in 2011(3) CHN 575. Applying the ratio decided in the said

judgment it can be 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 lodged. It may

be the case that the minor was residing with her parents at the

matrimonial home at Diamond Harbour at one point of time but owing

to the matrimonial discord and particularly mental and physical cruelty,

the wife had to leave her matrimonial home from Diamond Harbour to

Paschim Medinipur under compulsion and she had to carry the minor

child with her.

From the averments made in the petition it appears that when the

wife left her matrimonial home, the child was barely two years old.

Therefore, a man of ordinary prudence cannot believe that a mother

would leave such a small baby with the custody of his father and in

fact, that is not the case. From the petition of the husband filed before

the Alipore Court it does not appear when the mother took the child

from her matrimonial home, nor does it appear how long the father

retained the custody of the child and where. On the contrary, it has

been stated by the husband in his application – “that the said son of the

petitioner namely Syed Mahir Rahman has been residing in the custody

of his mother namely Ruhi Sahina. Who cannot properly care her son as

she is an L.I.C.I. employee and she has to travel approx 100 km from her
residence. As such she cannot able to care the child of the petitioner. As

well as there is no male member in her family after her father’s death. So

all responsibility goes to the mother-in-law of your petitioner who is aged,

weak and mentally not sound in all sense.” From such a statement

made by the husband in his petition it can be safely held that the

mother was having the custody and that the minor was residing with

the mother and not the father as has been sought to be argued by the

learned Counsel appearing for the husband/opposite party.

Apart from all these, the legislative intent, why the words and

expression “the child ordinarily resides” has been used, is nothing but

to enure the benefit of the child 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

Paschim Medinipur to Alipore Court travelling 100 Kms. Therefore, this

logic is not acceptable that “ordinarily residing” means the matrimonial

home where the couple resided last. Looking at the convenience and

inconvenience of the minor child I am of the firm opinion that the

custody matter should be transferred to a Court where the minor child

is residing now with his mother which has been admitted by the

opposite party / father in his application. Therefore, I direct that the Act

VIII Case No.18 of 2017 be transferred from the Court of the learned

District Judge, Alipore to the Court of learned District Judge, Paschim

Medinipur. The learned District Judge, Alipore is directed to transmit

records of the Act VIII Case No.18 of 2017 before the learned District
Judge, Paschim Medinipur. After such transfer is made the learned

District Judge, Paschim Medinipur will issue a notice afresh to both the

parties.

Revisional application is disposed of.

Urgent Photostat certified copy of this judgment, if applied for, be

delivered to the learned advocates for the respective parties upon

compliance of all usual formalities.

(Sahidullah Munshi, J.)

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