2011 Supreme(Cal) 646

IN THE HIGH COURT OF CALCUTTA
DIPANKAR DATTA, J.
Dr. Subhadip Laskar
Versus
Dr. Sanjukta Laskar
C.O. 31 of 2011
Decided On: May 10, 2011

The ordinary place of residence of the minor determines the jurisdiction of the particular court, and the question as to where the minor ordinarily resides is a question of fact to be decided in the light of the circumstances of each case. The residence of the natural guardian is not the determining factor in deciding the question of jurisdiction but could be considered as one of the circumstances in determining the ordinary place of residence of the minor.

Headnote:

GUARDIAN AND WARDS ACT - SECTION 9(1) - JURISDICTION - ORDINARILY RESIDES - INTERPRETATION - APPLICATION OF PRINCIPLES - MINOR CHILD'S RESIDENCE WITH MOTHER FOLLOWING MATRIMONIAL DISCORD - JURISDICTION OF DISTRICT COURT DETERMINED.

Fact of the Case:

The petitioner and opposite party, both doctors, were married in 2002 and had a son, Master Soham, in 2003. After marital discord, the opposite party left the matrimonial home with Master Soham in 2008. The petitioner filed an application under Section 25 of the Guardians and Wards Act, 1890 (the Act) in the Court of the District Judge, North 24 Parganas, seeking guardianship of Master Soham. The opposite party challenged the jurisdiction of the court, and the learned District Judge directed the petitioner to file the application before the Court of the District Judge, South 24 Parganas, which had territorial jurisdiction over the issue. The petitioner challenged this order in a revisional application, which was converted to a first miscellaneous appeal. The appeal was disposed of by consent of parties, with an order granting the father reasonable access to the child. The opposite party filed an application under Section 7 of the Act in the Court of the District Judge, South 24 Parganas, seeking custody of Master Soham. The petitioner objected to the maintainability of the application on the ground of lack of jurisdiction. The learned Additional District Judge rejected the objection and held that the court had jurisdiction to hear and try the application. The petitioner challenged this order in the present civil revisional application.

Finding of the Court:

The court held that the ordinary place of residence of the minor determines the jurisdiction of the particular court and that the question as to where the minor ordinarily resides is a question of fact to be decided in the light of the circumstances of each case. The court further held that the residence of the natural guardian is not the determining factor in deciding the question of jurisdiction but could be considered as one of the circumstances in determining the ordinary place of residence of the minor. The court also held that shifting of the child from his father’s residence to somewhere else where his mother takes him must be occasioned in the normal run of events or by design to create jurisdiction in any particular District Court of her choice or not.

Issues: 1. Whether the District Court of South 24 Parganas had jurisdiction to entertain the application filed by the opposite party for guardianship of Master Soham. 2. Whether the learned Additional District Judge erred in rejecting the objection of the petitioner and holding that the court had jurisdiction to hear and try the application.

Ratio Decidendi: 1. The court held that the ordinary place of residence of the minor determines the jurisdiction of the particular court and that the question as to where the minor ordinarily resides is a question of fact to be decided in the light of the circumstances of each case. 2. The court further held that the residence of the natural guardian is not the determining factor in deciding the question of jurisdiction but could be considered as one of the circumstances in determining the ordinary place of residence of the minor. 3. The court also held that shifting of the child from his father’s residence to somewhere else where his mother takes him must be occasioned in the normal run of events or by design to create jurisdiction in any particular District Court of her choice or not. 4. Applying these principles to the facts of the case, the court held that the District Court of South 24 Parganas had jurisdiction to entertain the application filed by the opposite party for guardianship of Master Soham.

Final Decision: The court dismissed the civil revisional application, holding that the District Court of South 24 Parganas had jurisdiction to entertain the application filed by the opposite party for guardianship of Master Soham.