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2015 Supreme(Cal) 86
High Court of Judicature at Calcutta
HARISH TANDON, J.
Dr. Avijit Ghosh @ Dr. Abhijit Ghosh - Appellant
Versus
Dr. Jayita Ghosh (nee Chatterjee) - Respondent
C.O. No. 303 of 2015 (Appellate Side)
Decided on: 16-02-2015
For the Petitioner:Amal Krishna Saha, Debnath Mahata, Advocates.
For the Respondent:Biswajit Basu, S. Banik, S. Mukhopadhyay, Advocates.
The interpretation of the expression "ordinarily resides" in Section 9 of the Guardians and Wards Act, 1890, should be based on the intention of the parties, not just the grammatical meaning of the words.
Headnote:
GUARDIAN AND WARDS ACT, 1890 - SECTION 9 - JURISDICTION - ORDINARILY RESIDES - INTENTION OF PARTIES - INTERPRETATION
Fact of the Case:
In a guardianship proceeding under Section 24 of the Guardians and Wards Act, 1890, the wife sought custody of her minor son and the right to meet him in India, while the husband claimed that a compromise decree in an earlier proceeding allowed him to take the child to Malaysia for his welfare and granted the wife visitation rights there. The wife challenged the maintainability of the current proceeding, arguing that it sought to set aside the compromise decree.
Finding of the Court:
The court held that the instant proceeding was independent of the compromise decree and did not attempt to set it aside. It further held that the expression "ordinarily resides" in Section 9 of the Act should be interpreted by considering the intention of the parties, not just the grammatical meaning.
Issues: 1. Whether the current proceeding was maintainable despite the existence of a compromise decree in an earlier proceeding. 2. Whether the minor son "ordinarily resided" in Malaysia, as claimed by the husband, thus depriving the court of jurisdiction under Section 9 of the Guardians and Wards Act, 1890.
Ratio Decidendi: 1. The court relied on the Supreme Court's decision in Ruchi Majoo v. Sanjeev Majoo, which held that the expression "ordinarily resides" should be interpreted based on the parties' intention, not merely on its ordinary or grammatical meaning. 2. The court found that the intention of the parties could not be determined solely based on the averments in the application and objection, and that evidence was necessary to ascertain their true intentions.
Final Decision: The court dismissed the husband's revisional application, holding that the impugned order rejecting the challenge to the maintainability of the proceeding was valid. It directed the trial court to proceed with the case and dispose of it expeditiously within six months.
This revisional application is directed against the order no. 29 dated December 10, 2014 passed by the learned Additional District Judge, 10th Court, Alipore, South 24-parganas in Act-VIII Case No. 116 of 2013, by which an application raising a question of maintainability of the proceeding is rejected on contest.
The aforesaid case originates from an application under Section 24 of the Guardians and Wards Act, 1890 at the instance of the wife/opposite party praying for her appointment as guardian of the minor son till he attains the majority and to allow her to meet the said minor son in India with a direction upon the opposite party/husband to produce the child at the interval of every two months.
The husband is contesting the said proceeding by taking a plea that a compromise was entered into in an earlier proceeding, being Miscellaneous Case No. 362 of 2012, whereby and whereunder the husband/petitioner was allowed to take the minor child in Malaysia for his better future and welfare; and the wife/opposite party was given a right to visit the minor son in every three months in Malaysia. Several instances and details have been narrated in the objection filed by the husband/petitioner showing that the wife, in fact, visited Malaysia and interacted with the child.
Challenging the maintainability of the proceeding filed by the wife, which gave rise to the registration of the above case, an application was taken out, wherein the challenge was restricted on the said compromise decree and it is contended that by initiating the said proceeding, the wife is trying to set aside the compromise decree passed by the Court.
This is how the impugned order came to be passed by the Trial Court. The Trial Court categorically held that the instant proceeding is independent of the said compromise decree and a meaningful reading of the averments made therein would hardly suggest that any attempt to thwart the compromise decree is taken. Mr. Amal Krishna Saha on his usual eloquence attacks the impugned order from a different angle. By relying upon the provision contained under Section 9 of the Guardians and Wards Act, 1890 he submits that the Trial Court did not have the jurisdiction to entertain such application, as admittedly the minor son resides ordinarily in Malaysia. According to him, the Court can usurp the jurisdiction, provided the minor son resides within its territorial jurisdiction and if it is an admitted position that he resides in Malaysia, the application filed by the wife/opposite party is liable to be dismissed.
To impress the Court what the expression “ordinarily resides” means, he relies upon a judgment of a Privy Council rendered in case of Annie Besant vs. G. Narayaniah reported in AIR 1914 PC 41. Taking a clue therefrom Mr. Saha submits that “ordinarily resides” means where the son is currently living and is pursuing his studies and not the place where he used to reside. He strongly submits that the child was taken on consent for pursuing better studies in Malaysia and, therefore, the application is not maintainable before the Court.
Mr. Basu, learned counsel appearing for the wife/opposite party, opposes the submission of Mr. Saha in contending that mere temporary residence or studying in some other place does not mean that he was not ordinarily residing at a place, which is still the permanent address of the minor child. He further submits that the intention can be gathered from the averments made in the application that the staying of the minor child in Malaysia was temporary inasmuch as he was sent to pursue his studies and, therefore, cannot be interpreted to say that he ordinarily resides in Malaysia.
Mr. Basu heavily relies upon a judgment of the Supreme Court in case of Ruchi Majoo vs. Sanjeev Majoo reported in (2011) 6 SCC 479. According to him, the expression “ordinarily resides” has been interpreted by the Supreme Court in the said Report and held that it is to be interpreted taking into account the intention o
