Custody of Minor Child -Section 9 of the Guardians and Wards Act, 1890, it is the place where the minor child “ordinarily resides” is the paramount consideration for deciding the jurisdiction of the Court.
CALCUTTA HIGH COURT
Anamika Dutta (Das) Vs. Sri Sandip Das
C.O. 2189 of 2018
ACTS: Sec 24 of the Code of Civil Procedure read with Secs 9 of the Guardians and Wards Act, 1890
Advocate Petitioner : Syed Arif Ahamed and Mr. Sajal Kumar Ghosh
Affidavit of service filed in Court today be taken on record. Despite service no one appears for the opposite party although affidavit of service discloses that the registered article was delivered on 12th September, 2018.
This is an application under section 24 of the Code of Civil Procedure seeking transfer of Misc. Case no. 3 of 2018, pending in the Court of the learned Distort Judge at Suri, Birbhum.
From the petition, it appears that the husband of the petitioner has filed the said miscellaneous case in the Court of the learned District Judge at Suri, Birbhum seeking custody of the minor child of the petitioner. From the petition under section 24 of the Code of Civil Procedure, it appears that the marriage between the petitioner and the opposite party was solemnized in the year 2010 and for the purpose of showing cause of action for the miscellaneous case the opposite party stated that the wife came to her in law’s house at Suri and has started to live as husband and wife, although in the cause title of the said petition the petitioner has shown Raniganj to be the residence of the wife.
It is the case of the petitioner that the minor child is residing ordinarily with the petitioner all-through-out and the minor child is presently residing with mother/ petitioner at Raniganj. From the petition in Miscellaneous case no of 2018 it also does not appear that the minor child after her birth on 28th June, 2012 has ever resided with the 0.P. If that be so, it can be presumed that the minor child, Rachana, is residing with her mother at her place i.e. at Raniganj, which is admitted in the cause title of the miscellaneous case. According to Section 9 of the Guardians and Wards Act, 1890, it is the place where the minor child “ordinarily resides” is the paramount consideration for deciding the jurisdiction of the Court which win hear the application for Guardianship in the said miscellaneous case no of 2018. Section 9 of the Guardianship and Wards Act, 1890 is set out below:
“Section 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 maybe 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 e disposed of more justly or conveniently by any other District Court having jurisdiction.
Therefore, this Court is prim facie, satisfied that Suri Court does not have the jurisdiction to entertain the application under section 9 of the Guardians and Wards Act, 1890 as bees been sought to be filed by the opposite party in the Court at Suri, Birbhum.
Accordingly, this Court directs stay of all further proceedings in Miscellaneous Case no of 2018, pending in the Court of the learned District Judge, Suri at Birbhum for a period of 8 weeks from date and the petitioner is directed to serve a copy of this application upon the opposite party within a week by registered cover with acknowledgement due and to file affidavit of service on the next date of hearing.
Let this matter be returnable two weeks hence.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
SAHIDULLAH MUNSHI, J
November 19, 2018-R.C.