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2019 Supreme(Cal) 606
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
BIBEK CHAUDHURI, J.
Soumi Mukherjee - Petitioner
Versus
Manas Mukherjee - Respondent
CO. No. 671 of 2019
Decided On : 21-06-2019
For the Petitioner:Debjit Mukherjee, Susmita Chatterjee, Advocates.
For the Opposite Party :Avijit Bardhan, Avik Ghatak, Salman Hasan, Advocates.
The welfare of the minor child and the determination of the ordinary residence as per Section 25 of the Guardians and Wards Act, 1890 are the central legal points established in the judgment.
Headnote:
Section 24 - Transfer of Cases - Code of Civil Procedure - Section 25 of the Guardians and Wards Act, 1890 - Summary of Acts and Sections: The court discussed Section 24 of the Code of Civil Procedure and Section 25 of the Guardians and Wards Act, 1890. The court analyzed the jurisdictional aspects and the welfare of the minor child in determining the transfer of cases and custody matters. Key legal provisions such as the welfare of the ward, ordinary residence, and jurisdiction of the court were interpreted and influenced the court's decision.
Fact of the Case:
The petitioner, the wife, filed an application under Section 24 of the Code of Civil Procedure seeking the transfer of two cases related to the custody of their minor son from the court in Asansol to the court in Hooghly. The petitioner alleged that the minor child ordinarily resides in Hooghly and sought the transfer for the convenience of trial and disposal.
Finding of the Court:
The court found that the minor child had been residing in Hooghly since March 2018 and was pursuing education there. The court held that the jurisdiction to entertain the application for custody of the minor child lies with the court where the child ordinarily resides, as per Section 25 of the Guardians and Wards Act, 1890. The court also emphasized the welfare of the minor child as the paramount consideration in determining the transfer of cases.
Issues: The issues involved the determination of the ordinary residence of the minor child and the jurisdiction of the court to entertain the application for custody under Section 25 of the Guardians and Wards Act, 1890.
Ratio Decidendi: The court held that the ordinary residence of the minor child is where the child resides for a considerable period of time and receives education and upbringing. The court also emphasized that the welfare of the minor child is the paramount consideration in determining the transfer of cases and custody matters.
Final Decision: The court allowed the revision and ordered the transfer of the cases to the court of the learned District Judge, Hooghly for trial and disposal.
JUDGMENT :
1. This is an application under Section 24 of the Code of Civil Procedure (hereafter the CPC) filed by the wife/petitioner against her husband/opposite party praying for transfer of Act VIII Miscellaneous Case No.3 of 2018 as well as Act VIII Miscellaneous Case No.8 of 2018 from the court of learned District Judge, Asansol, West Burdwan to the court of learned District Judge, Hooghly.
2. Factual matrix of the case leading to filing of the instant application is very short and stated below:-
3. Marriage of the petitioner with the opposite party was solemnized according to the Hindu Rites and Ceremonies on 21st April, 2014. The petitioner gave birth to a male child in the said wedlock between her and the opposite party on 10th July, 2015. So, the only son of the petitioner and the opposite party is presently aged about 4 years. During their marital life, the petitioner noticed that her husband/opposite party has been living an immoral life. It is alleged that the opposite party maintains intimate relation with another lady during the subsistence of his marriage with petitioner. As the opposite party lives an immoral life, it was not possible for her to live with her husband under one roof and she left her matrimonial home along with her minor child and took shelter at her mother's house at 455/1 TN Mukherjee Road, Makhla, Hooghly. The petitioner admitted her son in a Montessori School under the name and style of Kidzee, Uttarpara, Hooghly. Subsequently, the said child was admitted to Methodist School, Dankuni in the District of Hooghly, governed under Indian Council of Secondary Education (ICSE).
4. Sometimes in February, 2019 the petitioner came to know after receiving summons which was addressed to her, but sent to her brother's house at Santragachi in the district of Howrah that the opposite party has filed an application under Section 12 of the Guardians and Wards Act, 1890 praying for interim custody of their minor son. It is also learnt that the opposite party has filed an application before the learned District Judge, Paschim Burdwan at Asansol under Section 25 of the Guardians and Wards Act (hereafter 'the said Act') praying for custody of a minor child. It is contended by the petitioner that she does not reside with her husband due to marital discord and she along with her son has been residing at Makhla, Hooghly since the said minor son of the petitioner has been ordinarily residing in Hooghly, learned District Judge Hooghly has the territorial jurisdiction to try an application under Section 25 of the said Act filed by the opposite party. It is further pleaded by the petitioner that the petitioner and her minor son are not in a position to contest the said proceeding under Section 25 of the Guardians and Wards Act at Asansol travelling a distance of about 400 Km from her present place of residence. Therefore, the petitioner has prayed for transferring the aforesaid miscellaneous cases to the court of the learned District Judge, Hooghly for trial and disposal.
5. The opposite party has been contesting the instant proceeding by filing an affidavit-in-opposition wherein and where under he denied entire allegation made out against him in the application under Section 24 of the CPC. It is specifically pleaded by the opposite party that after the birth of their son on 10th July, 2015, the opposite party purchased a self contained residential flat for the development and wellbeing of the child in close vicinity of eminent schools in Asansol. The said child was admitted to a prep-school under the name and style of Happy Feet at Asansol. Unfortunately the petitioner has no intention to lead happy conjugal life with the opposite party. She left her matrimonial home with her child sometimes on 27th March, 2018 without any valid reason. The opposite party tried his level best to settle the marital dispute amicably, but failed. The petitioner even did not allow him to meet the child even occasionally. Finding no other altern
