Ruhi Sahina vs Syed Masidur Rahman

Sahidullah Munshi, J.

This is an application under Section 24 of the Code of Civil Procedure seeking transfer of Act VIII case No.18 of 2017 arising out of Sections 7, 8 and

25 of the Guardians and Wards Act from the Court of the learned District Judge, Alipore to the Court of the learned District Judge, Paschim

Medinipur. The petitioner herein is the wife who contends that she was married to the opposite party under the Muslim rites and rituals on 14.01.2012

and out of their wedlock a male child was born on 10.02.2015 who is presently aged about three and half years. The petitioner has filed a complaint

against her husband on 26th February, 2016 under Sections 498A/323/427/34, I.P.C. read with Sections 3 and 4 of the Dowry Prohibition Act. Such

complaint was lodged with Kotwali Police Station being Kotwali Police Station Case No.189 of 2016. (Owing to the physical and mental cruelty

caused by the husband particularly stemmed out of demand for more dowry, she had to leave her matrimonial home at Diamond Harbour and

presently residing at her parental residence at West Medinipur along with her said minor child below the age of five years).

The husband/opposite party has filed an application on 8th February, 2017 under Sections 7, 8 and 25 of the Guardians and Wards Act in the Court of

the learned District Judge at Alipore which has been registered as Act VIII Case No.18 of 2017, seeking custody and guardianship of the said minor

child. A copy of the said application has been annexed to the petition. The wife/petitioner submitted that the distance between the Court of the learned

District Judge, Alipore and the place Mirza Bazar where she has been residing with the minor and the parents in the district of Paschim Medinipur is

135 Kilometers which is impossible for her being a single lady to attend the Court on regular basis. Therefore, she has prayed for transfer of the said

proceeding.

That apart, it has also been submitted that at present the petitioner is having the custody of the said minor child with her at the said address, Mirza

Bazar in the district of Paschim Medinipur. Learned Counsel appearing for the opposite party/husband submitted that in the application being Act VIII

Case No.18 of 2017, the petitioner has mentioned that the minor child was residing with his father at Diamond Harbour whose custody has been taken

by the mother illegally. However, while making such statement no date has been mentioned since when the said custody has been removed from the

father to the petitioner/mother.

Learned Counsel further submitted that from the revisional application it appears that the petitioner is an employee under the Life Insurance

Corporation of India and is presently posted at Garhbeta, Paschim Medinipur. Therefore, he submits that since the petitioner was in custody of the

father prior to filing of the Act VIII case and further that she is employed in Garhbeta, Paschim Medinipur, being a working lady, she can travel from

Paschim Medinipur to Alipore Court. Learned Counsel submitted that since the child was in the custody of the father before the application was filed

and since the husband’s residence is at Diamond Harbour which comes within the jurisdiction of the learned District Judge Alipore, therefore, he

has rightly filed the Act VIII case in the Court of learned District Judge, Alipore and her prayer for transfer of the said Act VIII case should be

turned down.

After hearing the parties and considering the provisions of Section 9 of the Guardians and Wards Act, 1890, it appears that where the minor

‘ordinarily resides’ shall be the determining factor for the purpose of jurisdiction of the Court to entertain an application under the said provision.

Section 9 of the Guardians and Wards Act is set out below :-

“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 application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in

the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the

place where the minor ordinarily resides, the Court may return the application if, in its opinion, the application would be disposed of more justly or

conveniently by any other District Court having jurisdiction.â€​

Section 9 contemplates the territorial jurisdiction of the Court in the matter of guardianship application. Firstly, when the application is in respect of

guardianship of the person of a minor, it is to be filed at the Court under whose territorial jurisdiction the minor ordinarily resides. Secondly, if such an

application relates to the property of the minor, there are two fora and the applicant may choose either of the two, namely, a Court under whose

territorial jurisdiction the minor ordinarily resides, or under whose territorial jurisdiction minor has property.

Learned Counsel appearing for the opposite party/husband has cited two decisions in the case of â€

• Shri Amal Saha â€" Vs. â€" Smt. Basana Saha, reported in (1987) 2 Gauhati Law Reports 84 and

• Konduparthi Venkateswarlu & Ors. â€" Vs. â€" Ramavarapu Viroja Nandan & Ors., reported in AIR 1989 Ori 151.

Drawing attention to paragraph 8 of the decision in Shri Amal Saha (supra) learned Counsel submitted that Court shall take into account of the words

and expression “ordinarily resident†which has got a different meaning than ‘residence’ at the time of application. In the Statute neither the

word ‘residence’, nor the word “ordinarily resident†is available. What has been mentioned in the Statute is where the “minor ordinarily

residesâ€​. Therefore, no separate interpretation is necessary. The judgment referred to has no application in the present case.

Drawing attention to paragraph 6 of the other decision in the case of Konduparthi Venkateswarlu (supra) the petitioner has sought to make a

submission that the place where the minor was residing earlier with his father has to be taken into consideration but on going through the decision it

does not appear so rather, the Court observed that where the minor ordinarily resides means the place of residence of the natural guardian that gives a

jurisdiction to the Court under Section 9(1) but it is the place of ordinary residence of the minor. The Court further held that “the question as to the

ordinary residence of the minor must be decided on the facts of each particular case and generally, the length of residence at a particular place

determines the question. The expression ‘the place where the minor ordinarily resides’ means the place where the minor generally resides and

would be expected to reside but for special circumstances.â€​

Therefore, the ratio of the decision if taken into consideration to the fact of the present case it will show that the jurisdiction cannot be taken into

consideration to be of learned District Judge, Alipore, but the place where the minor has been residing now with his mother / petitioner.

Learned Counsel appearing for the petitioner has relied on a judgment in the case of Subhadip Laskar â€" Vs. â€" Sanjukta Laskar, reported in

2011(3) CHN 575. Applying the ratio decided in the said judgment it can be held that it is the place where the minor is presently residing is to be

considered for the purpose of determining the jurisdiction where the application under Act VIII is to be lodged. It may be the case that the minor was

residing with her parents at the matrimonial home at Diamond Harbour at one point of time but owing to the matrimonial discord and particularly

mental and physical cruelty, the wife had to leave her matrimonial home from Diamond Harbour to Paschim Medinipur under compulsion and she had

to carry the minor child with her.

From the averments made in the petition it appears that when the wife left her matrimonial home, the child was barely two years old. Therefore, a

man of ordinary prudence cannot believe that a mother would leave such a small baby with the custody of his father and in fact, that is not the case.

From the petition of the husband filed before the Alipore Court it does not appear when the mother took the child from her matrimonial home, nor does

it appear how long the father retained the custody of the child and where. On the contrary, it has been stated by the husband in his application â€

“that the said son of the petitioner namely Syed Mahir Rahman has been residing in the custody of his mother namely Ruhi Sahina. Who cannot

properly care her son as she is an L.I.C.I. employee and she has to travel approx 100 km from her residence. As such she cannot able to care the

child of the petitioner. As well as there is no male member in her family after her father’s death. So all responsibility goes to the mother-in-law of

your petitioner who is aged, weak and mentally not sound in all sense.†From such a statement made by the husband in his petition it can be safely

held that the mother was having the custody and that the minor was residing with the mother and not the father as has been sought to be argued by

the learned Counsel appearing for the husband/opposite party.

Apart from all these, the legislative intent, why the words and expression “the child ordinarily resides†has been used, is nothing but to enure the

benefit of the child because when the custody matter would be heard the child would be brought to the Court, and, it is not expected that at every

hearing day the child would be brought from Paschim Medinipur to Alipore Court travelling 100 Kms. Therefore, this logic is not acceptable that

“ordinarily residing†means the matrimonial home where the couple resided last. Looking at the convenience and inconvenience of the minor child

I am of the firm opinion that the custody matter should be transferred to a Court where the minor child is residing now with his mother which has been

admitted by the opposite party / father in his application.

Therefore, I direct that the Act VIII Case No.18 of 2017 be transferred from the Court of the learned District Judge, Alipore to the Court of learned

District Judge, Paschim Medinipur. The learned District Judge, Alipore is directed to transmit records of the Act VIII Case No.18 of 2017 before the

learned District Judge, Paschim Medinipur. After such transfer is made the learned District Judge, Paschim Medinipur will issue a notice afresh to

both the parties. Revisional application is disposed of. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned

advocates for the respective parties upon compliance of all usual formalities.