IMPORTANT POINT
Jurisdiction for guardianship applications is determined by the minor's ordinary residence prior to any recent removal, not the residence at the time of application.

JUDGMENT :

(Mridul Kumar Kalita, J.)

1. Heard Mr. S.H. Rahman, learned counsel for the petitioner. Also heard Mr. S. Hoque, learned counsel for the respondent.

2. This application under Section 24 of the Code of Civil Procedure, 1908 read with Section 151 of the said code has been filed by the petitioner, namely, Smti Usma Sultana praying for transferring of the Misc. Guardianship Case No. 03/2022 from the Court of the learned District Judge, Kamrup at Amingaon to the Court of the learned District Judge, Barpeta.

3. The facts relevant for consideration of the instant transfer petition, in brief, are as follows: -

i. That the petitioner and the respondent were married to each other on 24.07.2016 as per Islamic rites and rituals. Out of the said wedlock, a male child was born on 04.05.2018, who has been named as Master Omar Faruk Jaman, and was about five years old at the time of filing of this transfer application.

ii. After about 4 ½ years of the marriage, the respondent and his family members started torturing the petitioner and there arose matrimonial differences between both the parties and it became impossible for the petitioner to continue her conjugal life with the respondent. As a result of the aforesaid circumstances, the petitioner left the house of respondent in the month of May, 2022 along with her child and was staying at her parent's house in the district of Barpeta.

4. Mr. S. H. Rahman, learned counsel for the petitioner has submitted that the petitioner ultimately decided to dissolve her marriage with the respondent and accordingly she made a declaration to that effect before notary, Darrang, Mangaldai on 26.07.2022 and the respondent was informed about the same by sending a copy of the said declaration to him.

5. It is also submitted by the learned counsel for the petitioner that thereafter the petitioner married one Habibar Rahman, son of Samsul Hoque, who is the resident of village Bhatnapaity Charunder Alopati, Police Station in the district of Barpeta on 12.09.2022 by executing a marriage agreement on the said date.

6. It is further submitted by the learned counsel for the petitioner that after her marriage with the said Habibar Rahman, the petitioner started living as his wife along with her minor child in the house of said Habibar Rahman at village Bhatnapaity Charunder Alopati Police Station in the district of Barpeta.

7. It is also submitted by the learned counsel for the petitioner that the son of the petitioner, namely, Master Omar Faruk Jaman, who was also staying with her, was admitted in “Ankur” class at Nava-Nur Jatiya Vidyalaya, Bhatnapaity Char on 01.11.2022.

8. The learned counsel for the petitioner has submitted that the petitioner has delivered a girl child on 06.08.2023 from your new husband.

9. The learned counsel for the petitioner has submitted that in the meanwhile, the respondent has filed an application under Sections 9 and 12 of the Guardians and Wards Act, 1890, in the Court of learned District Judge, Kamrup, Amingaon seeking custody of her minor child, namely, Master Omar Faruk Jaman. The said guardianship case has been registered as Misc. Guardianship Case No. 03/2022.

10. It is also submitted by the learned counsel for the petitioner that in connection with the said guardianship case, a Misc. Case being Misc. (J) Case No. 5/2023 was also registered, wherein an interim order was passed against the present petitioner to bring the minor child at Atal Udyan, Adabari, Guwahati to meet the respondent on the first Sunday of every month.

11. The learned counsel for the petitioner has submitted that the Court of learned District Judge, Kamrup, Amingaon does not have the jurisdiction to entertain the application under Sections 9 and 12 of the Guardians and Wards Act, 1890. It is submitted that the appropriate Court having jurisdiction to entertain such an application would be a Court having jurisdiction over the place where the minor ordinarily resides. However, he submits that in the inst