Calcutta High Court (Appellete Side)
Shantanu Moitra vs Ankana Moitra on 22 November, 2022
22.11.2022
154
Ct. no. 652
sb
C.O. 511 of 2022
Shantanu Moitra
Vs.
Ankana Moitra
Mr. Amitesh Banerjee, Sr. Adv.
Ms. Munmun Tiwari
Ms. Sohini Adhikari
Mr. Abhishek Mondal
Mr. Arif Quraishi
Ms. Chumki Chowdhury ...for the petitioner
Mr. Prabal Mukherjee, Sr. Adv.
Mr. Rajib Ghosh
Ms. Gargi Mukherjee
...for the opposite party
This is an application under Section 24 of the Civil
Procedure Code, seeking transfer of Act VIII case no. 31
of 2022 presently pending before the court of learned
District Judge, Barasat to the court of the learned
Additional District Judge, 13th Court, Alipore.
The petitioner contended that the marriage
between the parties was solemnised on 22.4.2005. the
parties are blessed with a male child who is now aged
about 10 years and is under the custody of the
petitioner/father. The petitioner is residing at
Bidhannagar within the district of North 24 parganas.
The petitioner alleged that from 2012 the
respondent/wife increased degree of torture both
physical and mental upon petitioner herein and for 2 which the criminal proceeding has been initiated by the petitioner before the learned Additional Chief Judicial Magistrate, Barasat. As a counter blast opposite party/wife also initiated criminal proceeding against petitioner and his mother with the Bidhannagar police station, which is now pending before Additional Chief Judicial Magistrate, Bidhannagar.
In the meantime, the opposite party has filed a suit for dissolution of marriage before the learned District Judge, Alipore which is now pending before the court of learned Additional District Judge, 13th Court, Alipore. The petitioner has also filed an application for custody of the child being Misc. case no. 331 of 2021 in the said matrimonial proceeding pending before the learned Additional District Judge, 13th Court, Alipore.
The petitioner further states that aforesaid application being Act VIII case no. 31 of 2022 filed by petitioner herein is pending before the learned District Judge, Barasat. Now in order to avoid conflict of judicial opinion and that the residence of the petitioner is near to Alipore court, petitioner seeks the aforesaid transfer.
The learned counsel for the opposite party raised vehement objection and contended that admittedly the child resides with the father/petitioner and the father is residing within the jurisdiction of leaned District Judge, Barasat and accordingly Barasat court has only territorial jurisdiction to try the case. In this context, 3 learned counsel for the opposite party relied upon a judgment passed by a co-ordinate bench of this court in Soumendra Malik Vs. Smt. Tumpa Malik reported in (2018) 1 CAL 314 (HC) wherein it was held that only the court within the jurisdiction of which the minor ordinarily resides has the jurisdiction to entertain proceedings under the said act. A coordinate bench of this court in the case of Ruhi Sahina Vs. Syed Masidur Rahaman reported in 2018 (4) SCC 166 (Cal) relying on the decision of Subhadip Laskar Vs. Sanjukta Laskar reported in 2011 (3) CHN 575 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 filed.
Section 9 of the Guardians and Wards Act 1890 deals with Court having jurisdiction to entertain application which runs as follows:-
" 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."4
Having considered the facts and circumstances of the case, this court finds that it is not in dispute that the minor child of the parties at present residing with his father/petitioner within the jurisdiction of the learned District Judge, North 24 parganas, which is the place where the "child ordinarily resides". Accordingly, when a statue fixes up jurisdiction of a particular court, it would not be proper to allow the petitioner's present prayer for transfer to a court not having territorial jurisdiction by invoking power under Section 24 of the Civil Procedure Code.
In view of the above, I am not inclined to allow the instant application under Section 24 of the Code.
Accordingly, C.O. 511 of 2022 is hereby dismissed. Since the affidavit-in-opposition has not been filed, the allegation levelled in the application shall be deemed to have not been admitted by the opposite party.
Urgent photostat certified copy of this order, duly applied for, be given to the parties upon compliance of all requisite formalities.
(Ajoy Kumar Mukherjee, J.)