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IN THE HIGH COURT OF CALCUTTA
Bibek Chaudhuri, J.
Dipika Agarwal Nee Khaitan - Appellant
Versus
Rishi Agarwal - Respondent
Civil Order No. 249 of 2020
Decided On : 10-02-2020
Section 9(1) - Guardianship of Minor - Guardians and Wards Act, 1890 - [Section 9(1)] - The judgment discusses the scope of the expression 'the place where the minor ordinarily resides' in Section 9(1) of the Act and the determination of territorial jurisdiction of the Court in respect of an application for guardianship of a minor. The court emphasizes the importance of the minor's ordinary place of residence and the intention of the mother in determining jurisdiction. Key legal provisions discussed include Section 9(1) of the Guardians and Wards Act, 1890 and Section 6(a) of the Hindu Minority and Guardianship Act, 1956. The court's decision is influenced by the interpretation of 'ordinary residence' and the paramount consideration of the welfare of the child.
Fact of the Case:
The petitioner, a mother, sought transfer of a guardianship application to a different court, arguing that her paternal home was the ordinary residence of her minor child. The court analyzed the factual background, legal provisions, and previous judgments to determine the territorial jurisdiction for the guardianship application.
Finding of the Court:
The court found that the minor's ordinary place of residence was within the jurisdiction of the learned District Judge, South 24 Parganas at Alipore, based on the minor's birthplace, schooling, and the intention of the mother. The court dismissed the revision on contest, leaving the issue of the paramount interest and welfare of the child open for independent adjudication by the lower court.
Issues: The issues involved the determination of the minor's ordinary residence, the interpretation of legal provisions, and the jurisdiction of the court for the guardianship application.
Ratio Decidendi: The court emphasized the importance of the minor's ordinary place of residence, the intention of the mother, and the paramount consideration of the welfare of the child in determining jurisdiction. The court also considered previous judgments and legal provisions, including Section 9(1) of the Guardians and Wards Act, 1890 and Section 6(a) of the Hindu Minority and Guardianship Act, 1956.
Final Decision: The court dismissed the revision on contest, affirming the jurisdiction of the learned District Judge, South 24 Parganas at Alipore for the guardianship application, and left the issue of the paramount interest and welfare of the child open for independent adjudication by the lower court.
JUDGMENT
Bibek Chaudhuri, J. - Section 9(1) of the Guardians and Wards Act, 1890 (hereafter the said Act) states that if the application for guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Thus, Section 9 contemplates the territorial jurisdiction of the Court in respect of an application for guardianship of a minor and the only test for determining jurisdiction of the Court is the "ordinary residence" of the minor.
2. What is the scope of the expression "the place where the minor ordinarily resides" in Section 9(1) of the Act? Does it mean the ordinary residence of the natural guardian of the minor where he/she was born or any other place where the minor resides with her mother after the martial discord has arisen between the parents of the minor? These are the issues for determination in the instant revision.
3. The opposite party herein filed an application under Section 25 of the said Act read with Section 6(a) of the Hindu Minority and Guardianship Act 1956 before the learned District Judge, South 24 Parganas at Alipore seeking custody of the person of the female child born in the wedlock of the petitioner and the opposite party. The said application was registered as Act VIII of the Case No.17 of 2019. It is ascertained from the averment made by the petitioner in the application that her marriage was solemnized with the opposite party as per Hindu rites and customs on 24th November, 2012. After marriage both of them started residing at her matrimonial home at 11A, Ballygunge Circular Road, Kolkata-19. In the said wedlock, petitioner gave birth to a female child on 23rd October, 2013. It was alleged by the opposite party that the petitioner is a patient of chronic depression and obsessive compulsive disorder. In or about May, 2017, the petitioner went to her paternal home along with her minor child against the will of the opposite party. It was further alleged that the petitioner failed to take due care and attention of her minor child as a result of which she suffered a fracture in the left hand and had to undergo surgery on 28th May, 2017 at Apollo Gleneagles Hospital. Subsequently the minor was admitted in La Martiniere School for Girls at Kolkata. The opposite party also made certain allegations against the petitioner of leading adulterous life which facts are, however, not relevant for the purpose of determining jurisdiction of aforesaid Act VIII case and accordingly those are not recorded in the instant order. It is pertinent to state that the opposite party has alleged that the petitioner forcibly took the minor away from the residence of the opposite party to South City Residency at Prince Anwar Shah Road. The minor of the family attended La Martiniere School for Girls till middle of December 2018. When the school was closed for Christmas Vacation in 2018, the petitioner went to her paternal house at Mallarpur in the district of Birbhum along with the said minor child. Therefore, the child was unable to attend school after it reopened on 15th January, 2019. The opposite party further alleged that La Martiniere School for Girls is one of the premier academic institutions of the State and there is no such academic institution at Mallarpur, Birbhum which could match the academic standard of La Martiniere School for Girls at Kolkata. It was also alleged that the petitioner never took due care to rear and maintain the said minor child. The opposite party is capable to maintain his child and for best interest and welfare of the child, her custody may be handed over to him.
4. Immediately upon getting the information about institution of Act VIII Case No.17 of 2019, the petitioner filed an application under Section 24 of the Code of Civil Procedure before this Court with a prayer to transfer the said case to the Court of the learned District Judge, Birbhum on the ground that the petitioner was compelled to leave her matrimo
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