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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SAHIDULLAH MUNSHI, J.
RUHI SAHINA - Petitioner
Versus
SYED MASIDUR RAHMAN - Opposite Party
C.O. No.2086 of 2017
Decided on : 28-08-2018
Transfer of Case - Guardians and Wards Act - Sections 7, 8, 25 - The court considered the provisions of Section 9 of the Guardians and Wards Act, 1890, which determines the jurisdiction of the court in guardianship matters. It held that the place where the minor is presently residing is to be considered for determining the jurisdiction of the application under Act VIII. The court emphasized the legislative intent to ensure the benefit of the child and directed the transfer of the case from the Court of the learned District Judge, Alipore to the Court of learned District Judge, Paschim Medinipur.
Fact of the Case:
The wife filed a complaint against her husband under various sections of the Indian Penal Code and the Dowry Prohibition Act, alleging physical and mental cruelty and demand for dowry. The husband filed an application seeking custody and guardianship of their minor child. The wife sought transfer of the case from the Court of the learned District Judge, Alipore to the Court of the learned District Judge, Paschim Medinipur, citing the distance and her inability to attend the court regularly.
Finding of the Court:
The court considered the provisions of Section 9 of the Guardians and Wards Act, emphasizing the importance of the place where the minor is presently residing in determining the jurisdiction of the application under Act VIII. It found that the legislative intent was to ensure the benefit of the child and directed the transfer of the case to the Court of learned District Judge, Paschim Medinipur.
Issues: The main issue was the determination of the jurisdiction for the application seeking custody and guardianship of a minor child under the Guardians and Wards Act.
Ratio Decidendi: The court held that the place where the minor is presently residing is to be considered for determining the jurisdiction of the application under Act VIII, emphasizing the legislative intent to ensure the benefit of the child.
Final Decision: The court directed the transfer of the case from the Court of the learned District Judge, Alipore to the Court of learned District Judge, Paschim Medinipur.
SAHIDULLAH MUNSHI, J.
1. 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).
2. 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.
3. 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.
4. 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.
5. 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 jur
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