IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction APPELLATE SIDE Present:

The Hon’ble Justice Shampa Dutt (Paul)

CO 4128 of 2024 With CAN 1 of 2026 Shantilal Sharma Vs Susant Vyas @ Sushanta Vyas & Ors.

For the Petitioner : Mr. Atis Kr. Biswas, Mr. Amit Singh, Mr. Ranjit Balmiki.

For the Respondents : Mr. Pratip Mukherjee (Through VC), Mr. Rahul Agarwal, Mr. Arpit Agarwal, Mr. Sk. Shakil Warsi.

Judgment reserved on : 10.03.2026 Judgment delivered on : 27.03.2026 Shampa Dutt (Paul), J.:

1. The civil revision has been preferred against an Order no. 10 dated

04.10.2024 passed by the learned Additional District Judge, 5th Court, Howrah in Misc Case No. 141 of 2023.

2. Vide the impugned order the trial Court, rejected the petitioner’s application under order 7 Rule 10 r/w Section 151 CPC and Section 9 of the Guardian and Wards Act, on the (relevant) findings as follows:-

“…………….The ordinary place of residence of a child depends on the factor where the child resides for a considerable period of time and where the child receives his initial education and upbringing. Camping here and there with the paternal relatives of the mother of the minor cannot be treated as a place of ordinary residence of the minor and considering the above factor this court is of the view that before the death of the mother of the minor Hriday Vyas his ordinary place of residence was in the house of his father where he together lived with his father and mother and has received his initial upbringing there and that place is the ordinary place of residence of the minor son of the petitioner which is situated within the jurisdiction of Golabari PS in the district of Howrah and as such this court has jurisdiction to try this application filed by the petitioner for the custody of the minor Hriday Vyas.

In the result, the petition filed by the OP u/o 7 rule 10 r/w section 151 of the CPC and section 9 of the Guardians and Wards Act, is of no merit and thus stand dismissed on contest without any order as to cost.

Fix 29.11.2024 for filing of Written Objection by the opposite party in the Misc Case against the petition filed by the petitioner praying for custody of the minor.

Dictated & Corrected by Sd/-

A.D.J., 5th Court, Howrah.”

3. Hence, the revision, praying for setting aside of the impugned order.

4. The custody case is between the father (natural guardian) and maternal grandparents, the petitioner herein, after the death of the child’s mother during the covid pandemic.

5. By virtue of a memorandum of understanding dated August 3, 2021, the child is residing with his maternal grandparents, since the death of his mother when he was aged about 8 years.

6. The child is now about 12 years of age and has lived for more than 4 years with the petitioner and his wife, his maternal grandparents.

7. The petitioner states that the child is a permanent resident of Thane, Maharasthra since June, 2022 and presently resides at Pune since April, 2024, where he has also been enrolled in a school.

8. Change of residence and intimation of the change of address has been done as per the MOU.

9. The petitioner states that the Learned trial Judge acted illegally and with material irregularity, by not considering that the present/ permanent/ordinary residence of the minor child is at Flat No. 403, 4th Floor, 18, Casita, Block- Sector Baner, Pand Card Club Road, Baner, District- Pune- 411045 and also studies there

10. The petitioner further states that as the child stays at Pune for his education, it’s in his welfare that he stays at Pune and that it will be difficult for the child and his grandparents to attend the Court at Howrah on regular basis to contest the custody case.

11. Section 9 of the Guardians and Wards Act, lays down:-

“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 jurisdiction in the place where the minor ordinarily resides.

(2) If the applicati