Calcutta High Court (Appellete Side)
CO-2606-2016 on 23 August, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
1 23.08.2016 Item No.18 aks C.O. 2606 of 2016 Re : Anamika Koley alias Anamika Bagchi ... Petitioner.
Mr. Prabhat Kumar Singh ... for the petitioner.
Mr. Debjit Mukherjee Ms. Susmita Chatterjee Ms. Dipanwita Ganguly .. for the opposite party.
This is an application under Section 24 of the Code of Civil Procedure wherein the mother/petitioner has prayed for transfer of Act VIII, Case No. 2 of 2016 now pending before the learned District Judge, Hooghly at Chinsurah to the court of learned District Judge, 24-Parganas (North) at Barasat.
Heard both sides.
It is submitted by Mr. Singh, learned Advocate, appearing on behalf of the petitioner that this child is residing within the jurisdiction of Barasat Court and in view of Section 9(1) of the Guardians and Wards Act, the District Judge, 24-Parganas (North) has only jurisdiction over the matter.
This is disputed by Mr. Mukherjee, learned Advocate, appearing on behalf of the husband/father who submits that this case may be transferred either at Barrackpore or even at Sealdah. It is true that Mr. Singh at first agreed to such transfer at Sealdah.
Mr. Mukherjee further submitted by taking me to G. D. Entry no. 506 of 2016 dated 09-08-2016 (running page no. 8 of the affidavit in opposition) to convince this court that if this transfer order is made, then the life of the opposite party will at stake. He further submitted that Barrackpore is also a district court as there are Additional District Judges. This court does not want to rely much on the G. D. Entry and only that evidence is not enough to show that the life of the opposite party will be at stake if he is asked to go to Barasat. There is recital in the petition that one case under Sections 498A/406 of the Indian Penal Code is pending at Barasat court. So, this opposite party/husband must be attending that court. No transfer motion was filed before any Bench of this court for withdrawal of that case from Barasat to any other court on the ground of threat on his life. Thus, the fact remains that the husband/opposite party is very much attending the court at Barasat.
Myself is not at one with Mr. Mukherjee that Barrackpore court can be treated as the 'District Court'. The 'District Court' means sitting of the principal Civil Judge of the District and the principal Civil Judge is not less a Judge other than the District Judge. If I say that Barrackpore is a District Court, then this court will have to swallow the argument that Datan, which is a Chowki Court within the district of Paschim Medinipore, can also be treated as District Court and there is one Additional District Judge there.
2Admittedly, the child is now residing in the custody of her mother within the jurisdiction of Barasat Court. Section 9(1) of the Guardians And Wards Act, 1890 has given a clear direction that only the District Court will have the jurisdiction where the minor ordinarily resides.
Thus, in view of discussion so long made and the legislative prescription in this regard, this court prefers to allow this application under Section 24 of the Code of Civil Procedure. Act VIII, Case No. 2 of 2016 now pending before the learned District Judge, Hooghly at Chinsurah is hereby withdrawn and transferred to the court of learned District Judge, 24-Parganas (North) at Barasat.
The said transferee court will have the option to get it transferred to any other court having jurisdiction within Barasat. Such decision must be taken within seven days from the receipt of the record.
Learned District Judge, Hooghly at Chinsurah is directed to transmit the case records to the learned District Judge, 24-Parganas (North) within seven days from the receipt of the order.
With the aforesaid observations, this application under Section 24 of the Code of Civil Procedure stands disposed of.
There will, however, be no order as to costs.
Office is directed to communicate this order to both the learned courts below. The parties will also be at liberty to communicate this order to the learned courts below along with a server copy of this order.
Affidavit in opposition and supplementary affidavit filed by the opposite party and the petitioner respectively be taken on record.
Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.
(Indrajit Chatterjee, J.)