Calcutta High Court (Appellete Side)
Smt. Arpita Manna (Bera) vs Sahadev Bera on 5 December, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1
05.12.19
C.O 1154 of 2018
+
CAN 1905 of 2019
+
CAN 1906 of 2019
Smt. Arpita Manna (Bera)
-Versus-
Sahadev Bera
For the petitioner: Mr. D.K Chandra
For the opposite party: Mr. Subir Ganguly
Mr. Arijit Bakshi
This is an application under Section 24 of the Code of Civil Procedure
(hereafter the CPC), filed by the wife/petitioner against her husband/opposite
party praying for transfer of Act 8 Case No.42 of 2018 from the Court of the
Learned District Judge, Barasat to the Court of the learned District Judge,
Paschim Midnapur.
In her application it is stated by the petitioner that her marriage was
solemnized with the opposite party on 12th July, 2008 and after one year of
marriage she gave birth to a female child who is now aged about nine years.
Marital life of the petitioner with the opposite party was not happy. She was
physically tortured and mentally abused by her husband. Complaining about
inferior quality of bridal gifts and streedhan articles he also used to put pressure
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upon the petitioner for money to be brought from her paternal home. The
petitioner was compelled to lodge a written complaint before the police authority
on the basis of which Baranagar P.S Case No.498A of 406 of the Indian Penal
Code was registered against the opposite party. It was not possible for the
petitioner to stay with her husband at Baranagar and she was taken to the
paternal home of the opposite party at Moyna in the district of Purba Medinipur.
She was also tortured by the family members of the opposite party at her
matrimonial home and finally her father took her to his house along with her
minor daughter at Paschim Medinipur. The petitioner has filed a case under the
Protection of Women from Domestic Violence Act, 2005 in the Court of the
learned Judicial Magistrate at Paschim Medinipur. The opposite party on the
other hand, has filed an application under Section 9 of the Hindu Marriage Act
for Restitution of Conjugal Rights before the learned District Judge, Purba
Medinipur at Tomluk. The opposite party has filed an application praying for
custody of their minor child under Section 25 of the Guardians and Wards Act,
1890 before the learned District Judge, North 24 Parganas at Barasat. The said
proceeding was registered as Miscellaneous Case No.42 of 2018. It is pleaded by
the petitioner that she is a resident of village Barbudhi within P.S Kharagpur
(local) in the district of Paschim Medinipur. She will have to travel more than 150
km from her present residence to Barasat. There is no direct communication
from Karagpur to Barasat and it takes about nine hours to reach Barasat from
her paternal home. Moreover, she has no independent source of income. There is
no other person at her paternal home to accompany her regularly to attend the
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court of the learned District Judge, North 24 Parganas at Barasat. Therefore, she
prays for transfer of case No.42 of 2018 from the court of the learned District
Judge, North 24 Parganas at Barasat to the court of the learned District Judge,
Paschim Medinipur at Medinipur.
The opposite party has been contesting the said application by filing
affidavit-in-opposition were in he has denied the material allegations made out
against him by his wife, the petitioner herein. It is specifically pleaded by the
opposite party that immediately after marriage, the petitioner disclosed that she
did not want to stay with the matrimonial relations other than her husband.
Conceding the demand of the petitioner the opposite party started to live with her
in a tenanted premises at Baranagar. In the said wedlock, the petitioner gave
birth to a girl child on 25th June, 2009. After the birth of the girl child the
petitioner started pressurising him to stay at her paternal home as a
domesticated son-in-law. The opposite party however refused to accept such
proposal and the dispute between the started thereafter. After marriage the
opposite party came to know that the petitioner is a genetically carrier of
Hereditary Haemolytic disease of Thalassemia. The petitioner and her family
members suppressed the said fact and gave her marriage with the opposite party.
Since 19th June, 2019, the petitioner has withdrawn herself from the society of
the respondent at her own volition without any reasonable excuse. The petitioner
lodge a complaint under Section 498A/406 IPC against the opposite party and the criminal case is pending at Barakpur. She also filed an application under Section 12 of the PWDV Act in the Court of the learned Chief Judicial Magistrate, 4 Paschim Medinipur, which is now pending before the learned Judicial Magistrate, 1st Court at Paschim Medinipur. In spite of institution of such criminal cases against him, the opposite party is still willing and wants to live normal marital life with the petitioner. So, he filed Matrimonial Suit No.238 of 2012 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The opposite party is regularly paying a sum of Rs.4000/- per month to the petitioner on the basis of an order passed by the learned Judicial Magistrate, 3rd Court, Paschim Medinipur on an application under Section 23(2) of the PWDV Act. The petitioner is regularly contesting the criminal case filed against the opposite party at Barakpur. Since the opposite party has been residing at Baranagar he has filed an application under Section 25 of the Guardians and Wards Act before the learned District Judge, North 24 Parganas at Barasat. He is the natural guardian of his daughter. As a natural guardian he has every right to have the custody of the child. Therefore the opposite party has prayed for dismissal of the instant revision under Section 24 of the CPC.
Learned Advocate for the petitioner submits that the petitioner has been residing in a village within P.S Kharagpur (local). The minor child of the parties is also residing with the petitioner. Therefore, the case under Section 25 of the Guardians and Wards Act ought to have been filed before the learned District Judge, Paschim Medinipur, where the said child 'ordinarily resides'. Prima facie, the learned District Judge, Barasat, North 24 Parganas has no jurisdiction to try a proceeding under Section 25 of the Guardians and Wards Act. Only on this 5 score the case ought to be transferred to he learned District Judge, Paschim Medinipur.
Mr. Subir Sanyal, learned Advocate for the opposite party has raised a pertinent question as to whether the plea of inconvenience set out by the petitioner is justified or not. It is pointed out by Mr. Sanyal that the petitioner has been contesting the criminal case instituted by her against the opposite party at Barakpur. Barakpur being a Sub-division of North 24 Parganas and barely about 10 km. away from Barasat, the petitioner ought not to have any inconvenience to contest the proceeding under Section 25 of the Guardians and Wards Act at Barasat.
Secondly, it is submitted by the learned Counsel for the opposite party that the opposite party is the natural guardian of their child. He is residing at Baranagar. So, he filed the case praying for custody of his minor child at Barasat. It is also difficult for the opposite party to contest the said proceeding at Paschim Medinipur because he apprehends of being manhandled and humiliated at Paschim Medinipur. Thirdly, it is vehemently urged by Mr. Sanyal that the instant application is liable to be dismissed in limine for making false statement by the petitioner on solemn affirmation. She left her maternal home prior to September, 2010 and filed a case under PWDV Act against the opposite party on 27th September, 2010. On the other hand, she lodged a complaint under Section 28A/406 IPC at Baranagar P.S on 4th January, 2011. The statement of fact made 6 by the petitioner in her application is false and beyond record and accordingly the application should be dismissed.
Mr. Sanyal also submits that the jurisdiction as provided in Section 9 of the Guardians and Wards Act relates to initial jurisdiction and the court while exercising power under Section 24 of the CPC, can very well transferred the case under Guardians and Wards Act to any other court considering relative convenience and inconvenience of the parties.
Section 9 of the Guardians and Wards Act runs thus:-
"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."
Sub-Section (5) of Section 4 of the Guardians and Wards Act defines:-
"4.(5) "the Court" means--
(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or
(b) where a guardian has been appointed or declared in pursuance of any such application--
(i) the Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or
(ii) in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or
(c) in respect of any proceeding transferred under section 4A, the Court of the officer to whom such proceeding has been transferred;"7
In Sri Soumendra Malik vs. Smt. Tumpa Malik reported in (2018) 1 CAL 314 (HC), the Division Bench of this Court held as follows:-
"12. It has to be appreciated that the role of the court does not end with the appointment of a guardian over a minor. Nor does the responsibility of the court cease with the appointment of a guardian. The very nature of the provisions of the Guardians and Wards Act, 1890 tend to show that the court has to supervise the work of the guardian, not to remove its watchful eyes from the minor, ensure that the ward's welfare is being looked after by the guardian, his or her property is being taken care of by him and so on. Therefore, this court cannot be far removed from the minor. The ward has to be accessible to the court as much as the court should be accessible to the guardian and any other interested person in his or her welfare. Hence, the provision 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 Rahman reported in 2018 (4) ICC 166 (Cal) relying on the decision in the case 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. In the said judgment also, this Court gave answer to the legislative intent, why the words and expression 'the child ordinarily resides' has been used, it is held that in order to enure the benefit of the child, the legislature consciously fixes the jurisdiction of the court to a place where 'the child ordinarily resides' 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 the place where he ordinarily resides to another place where the application is filed travelling a considerable distance. 8
It is not disputed that the minor child of the parties at present resides with her mother within the jurisdiction of the learned District Judge, Paschim Medinipur. Therefore, Paschim Medinipur is the place where the child 'ordinarily resides'. When a statute fixes up jurisdiction of a particular court, the said jurisdiction cannot be treated as initial jurisdiction and the court exercising power under Section 24 of the CPC can transferred the case from the jurisdiction fixed by the statute to a court situated outside the jurisdiction. On such score, I am not in a position to accept the argument advanced by Mr. Sanyal, learned Advocate for the opposite party. In view of what has been stated above, I am inclined to allow the instant application under Section 24 of the CPC.
Accordingly the instant revision is allowed on contest, however without cost.
Case No.42 of 2018 be transferred to the court of learned District Judge, Paschim Medinipur from the court of the learned District Judge, North 24 Parganas at Barasat.
Let a plain copy of this order be sent immediately to the courts of the learned District Judges, North 24 Parganas and Paschim Medinipur for information and compliance.
(Bibek Chaudhuri, J.)