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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SAHIDULLAH MUNSHI, J.
Dipika Agarwal @ Dipika Khaitan – Petitioner
Versus
Rishi Agarwal – Respondent
C.O. Nos. 622, 1094 of 2019
Decided On : 04-07-2019
Transfer of Act VIII Case - Jurisdiction - Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956 - Section 24 of the Code of Civil Procedure - [CUSTODY] - [Guardians and Wards Act, 1890, Section 9(1), Hindu Minority and Guardianship Act, 1956, Section 6(a)] - The court discussed the jurisdictional issue of the Act VIII case and the custody of the minor child. It emphasized the importance of the child's ordinary residence and the natural guardian's rights under the Hindu Minority and Guardianship Act, 1956, in determining jurisdiction and custody.
Fact of the Case:
The mother sought transfer of Act VIII case from Alipore to Birbhum, citing inconvenience and the child's welfare. The father opposed, emphasizing the child's schooling and his willingness to bear expenses.
Finding of the Court:
The court found that the child's ordinary residence was in Kolkata, and the Act VIII case was rightfully filed in Alipore. It dismissed the transfer application, emphasizing the father's rights as the natural guardian and condemning the mother's actions to confer jurisdiction on the Birbhum court.
Issues: Jurisdictional issue of the Act VIII case, custody of the minor child, inconvenience of the mother, and the child's welfare.
Ratio Decidendi: The child's ordinary residence and the natural guardian's rights under the Hindu Minority and Guardianship Act, 1956, are crucial in determining jurisdiction and custody.
Final Decision: The court dismissed the transfer application, upholding the jurisdiction of the Alipore court and emphasizing the father's rights as the natural guardian.
JUDGMENT :
1. This is an application by the mother of the minor girl child, Sambhuti Agarwal under Section 24 of the Code of Civil Procedure seeking transfer of Act VIII case no. 17 of 2019 filed by the father, now pending before the learned District Judge, South 24-Parganas at Alipore and has allegedly for the best interest and welfare of the minor. From the plaint of Act VIII case no. 17 of 2019 filed on 5th February, 2019 by the father under Section 25 of the Guardians and Wards Act, 1890 read with Section 6(a) of the Hindu Minority and Guardianship Act, 1956, it appears that the father has made out a case that the girl child, Sambhuti Agarwal, was born on 23rd October, 2013 out of the wedlock between the husband and his wife. In the plaint the father/petitioner has made out a case that sometime in May, 2017, the wife/opposite party went to her parental house when the petitioner and his family members were unwilling to send the child along with the opposite party/wife in view of her alleged mental disorder. But, however, the opposite party took the child with her against the will of the petitioner and his family members stating that her parents wanted to meet the said child. The petitioner has stated that after the child was taken to the parental house of the opposite party/wife at Mallarpur in Birbhum District, the opposite party/wife left the child alone unattended and since the mother/petitioner was not vigilant enough for the child, the child met a severe accident. It is further alleged that the opposite party consulted a local doctor who prescribed pain killers to the small child and in respect thereof, a copy of the prescription of the doctor at Birbhum dated 27th May, 2017 has been annexed to the said plaint. It is the further case of the petitioner that after coming to know of the said incident he immediately rushed to Mallarpur, District Birbhum and at the first sight of the swollen elbow of his daughter understood that she had suffered a fracture in the left hand. He immediately brought his daughter to Kolkata and consulted good orthopedic doctor and got the relevant tests done. It was found that the child had suffered a severe fracture of the left elbow, leading to dislocation of bone. The child was admitted in Apollo Gleneagles Hospital where an operation was held on 28.05.2017 under general anesthesia. The opposite party has also brought on record the medical reports regarding consultation of doctor of Apollo Gleneagles Hospital, Kolkata and the discharge summary being Annexure "D" to the said plaint. It is the further case of the opposite party that he got the child admitted being an alumnus of the school having considerable repute, namely, La Martiniere School for boys. The opposite party got his daughter admitted in the La Martiniere School for girls. Documents annexed to the plaint reveal that the petitioner was in the school for the sessions 2018-19.
2. Mr. Mukherjee learned Senior Advocate appearing for the husband/opposite party, however, producing a document in original, submits that his client's daughter was attending the school till December, 2018 but school communicated to him that the child was not attending the school since January, 2019. Records produced before this Court reveal that the child was admitted in La Martiniere School for girls on 20th June, 2016 and she attended the school last on 14th December, 2018.
3. Learned counsel appearing for the petitioner/mother, submits that the child is only of 5 years of age and it is not possible for her to continue her study in La Martiniere School where it is the admitted position that the petitioner has left matrimonial home at Calcutta and shifted to her parental house at Mallarpur. According to his client's estimation, the girl child has been admitted in a school of repute and the opposite party need not worry about the future of the child. Learned
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