IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTIONAPPELLATE SIDE
B E F O R E :
The Hon’ble Justice SAHIDULLAH MUNSHI
C.O. No. 622 of 2019
With
C.O. No. 1094 of 2019
Dipika Agarwal @ Dipika Khaitan
… Petitioner
-VersusRishi Agarwal
… Opposite Party
Mr. Shaktinath Mukherjee ...Sr. AdvocateMr. Joydeep Kar ...Sr. Advocate
Mr. Swapan Banerjee
Mr. Siddharta Banerjee
Mr. Kunal Ganguly
… For the petitioner
Mr. S.K. Kapoor ...Sr. Advocate
Mr. Saptangshu Basu ...Sr. Advocate
Mr. Aniruddha Chatterjee
Mr. Ayan Kumar Boral
... For the Opposite Party
Heard on : 18.02.2019, 04.04.2019, 11.06.2019 & 18.06.2019.
Judgment on : July 4, 2019
Sahidullah Munshi, J.:-
This is an application by the mother of the minor girl child, Sambhuti
Agarwal under Section 24 of the Code of Civil Procedure seeking transfer of Act
VIII case no.17 of 2019 filed by the father, now pending before the learned
District Judge, South 24-Parganas at Alipore and has allegedly for the best
interest and welfare of the minor.
From the plaint of Act VIII case no.17 of 2019
filed on 5th February, 2019 by the father under Section 25 of the Guardians and
Wards Act, 1890 read with Section 6(a) of the Hindu Minority and Guardianship
Act, 1956, it appears that the father has made out a case that the girl child,
Sambhuti Agarwal, was born on 23rd October, 2013 out of the wedlock between
the husband and his wife. In the plaint the father/petitioner has made out a case
that sometime in May, 2017, the wife/opposite party went to her parental house
when the petitioner and his family members were unwilling to send the child
along with the opposite party/wife in view of her alleged mental disorder. But,
however, the opposite party took the child with her against the will of the
petitioner and his family members stating that her parents wanted to meet the
said child. The petitioner has stated that after the child was taken to the parental
house of the opposite party/wife at Mallarpur in Birbhum District, the opposite
party/wife left the child alone unattended and since the mother/petitioner was
not vigilant enough for the child, the child met a severe accident. It is further
alleged that the opposite party consulted a local doctor who prescribed pain
killers to the small child and in respect thereof, a copy of the prescription of the
doctor at Birbhum dated 27th May, 2017 has been annexed to the said plaint. It
is the further case of the petitioner that after coming to know of the said incident
he immediately rushed to Mallarpur, District Birbhum and at the first sight of
the swollen elbow of his daughter understood that she had suffered a fracture in
the left hand. He immediately brought his daughter to Kolkata and consulted
good orthopaedic doctor and got the relevant tests done. It was found that the
child had suffered a severe fracture of the left elbow, leading to dislocation of
bone. The child was admitted in Apollo Gleneagles Hospital where an operation
was held on 28.05.2017 under general anaesthesia. The opposite party has also
brought on record the medical reports regarding consultation of doctor of Apollo
Gleneagles Hospital, Kolkata and the discharge summary being Annexure “D” to
the said plaint. It is the further case of the opposite party that he got the child
admitted being an alumnus of the school having considerable repute, namely, La
Martiniere School for boys. The opposite party got his daughter admitted in the
La Martiniere School for girls. Documents annexed to the plaint reveal that the
petitioner was in the school for the sessions 2018-19.
Mr. Mukherjee learned Senior Advocate appearing for the
husband/opposite party, however, producing a document in original, submits
that his client’s daughter was attending the school till December, 2018 but
school communicated to him that the child was not attending the school since
January, 2019. Records produced before this Court reveal that the child was
admitted in La Martiniere School for girls on 20th June, 2016 and she attended
the school last on 14th December, 2018.
Learned counsel appearing for the petitioner/mother, submits that the
child is only of 5 years of age and it is not possible for her to continue her study
in La Martiniere School where it is the admitted position that the petitioner has
left matrimonial home at Calcutta and shifted to her parental house at
Mallarpur. According to his client’s estimation, the girl child has been admitted
in a school of repute and the opposite party need not worry about the future of
the child. Learned counsel submits that if the child is kept not with the mother,
it will be more injurious for the child concerning her mental health than the
prospect of education. Therefore, learned counsel submits that if the father is
duly concerned with the welfare of the child, he should sacrifice for the interest of
the child and allow her to be retained by the mother and should not pray for
custody of the child. Learned counsel further submits that there are criminal
cases and counter criminal cases both by the wife’s side and the husband’s side
and some of such cases are pending in the district of Birbhum. Therefore, he
submits that the husband has to attend those cases in the district of Birbhum
and, therefore, there is no reason for the opposite party/husband to oppose his
client’s prayer for transfer of the Act VIII case to the Court of Birbhum. He
further submits that it is the child who will be the worst sufferer if the Act VIII
case is kept in Alipore jurisdiction. For all practical purposes, the child has to do
her schooling at Mallarpur in the district of Birbhum, staying with her mother at
Mallarpur. Therefore, he submits that his prayer for transfer of the Act VIII case
should be allowed. In support of such contention Learned Counsel has relied on
a decision in the case of K.C. Sashidhar – Vs. – Roopa, reported in AIR 1993
Kar 120. In the said decision a Hon’ble Single Judge, while dealing with a
petition for transfer of a custody matter, held that the word ‘resides’ in the
Statute must be the actual place of residence and not a local or constructive
residence. The learned Judge has also clarified that this should not connote the
place of origin and it should be the actual residence of the wife at the
commencement of the proceeding that had to be considered, for jurisdiction. The
child’s custody was in question was about 10 to 11 months and Court held it was
accepted that her custody should be of the mother. Therefore, Court held that the
words and expressions “ordinarily resides” should be construed as the place
where the mother resides before the presentation of the petition. The Court held
that the place where the mother resided before the custody matter was initiated
would be the Court having jurisdiction to entertain the application.
Learned counsel has also relied on a decision in the case of Ruhi Sahina –
Vs. – Syed Masidur Rahman, reported in (2018) 4 CHN 379 of which I am the
author. In the said decision he has relied on the interpretation of the words
“ordinarily resides” as mentioned in Section 9(1) of the Guardians and Wards Act,
1890. From the fact narrated in the said decision it appears that it was admitted
(emphasis given by me) by the father/opposite party in his application that the
minor child was residing with his mother and having regard to such admission
this Court held that it would be on such admission of the place where the minor
was residing, the Court would have jurisdiction. Here, in this case, no such
admission is available that the minor child was residing with the mother at
Mallarpur on the day when the application was filed.
To resolve the dispute certain dates are very much important those are as
follows :
• 23.10.2013 – Child Born;
• 26.06.2016 – Admitted in La Martiniere School;
• 14.12.2018 – Attended last in La Martiniere School;
• 15.01.2019 – Admitted in St. Paul’s School, Rampurhat;
• 05.02.2019 – Act VIII case no. 17 of 2019 was filed;
• 15.01.2019 - La Martiniere School reopened after Christmas vacation
but child did not attend the school.
It is undisputed that the plaint for custody in Act VIII case no.17 of 2019
was filed on 5th February, 2019. On an application filed by the husband, an order
of injunction was granted by the Court below on 5th February, 2019 whereby the
learned District Judge passed the following order :
“Accordingly, by an order of ad-interim injunction the opposite party is
restrained from taking transfer certificate of the child from La Martiniere
School to any other school till 5.3.2019.
Issue notice to the opposite party directing her to show cause by
5.3.2019 as to why the application u/s 12 of the Guardians and Wards Act
shall not be granted in favour of the petitioner.”
Learned counsel submits that the child was admitted in St. Paul’s,
Rampurhat on 15.01.2019. Therefore, before the order of injunction was passed
the child got admission in the District of Birbhum. It is undisputed fact that the
petitioner/mother was ordinarily residing temporarily with her father Dipchand
Khaitan at South City Residency, 375, Prince Anwar Shah Road, Tower III, Flat
No. 5B, Jadavpur, Kolkata – 700068. He submits that since the petitioner for an
unavoidable circumstance had to leave the said premises and has permanently
shifted to Mallarpur in the district of Birbhum, Act VIII case which was initiated
before the District Judge at Alipore, should now be transferred to the district
Court within whose jurisdiction the minor child is allegedly residing with the
mother. According to him, if this petition is not allowed, the child will be
separated from the mother.
Mr. Kapoor, learned Senior Counsel for the opposite party submits that
there is no logic for the petitioner to take the child from a school of really good
repute (La Martiniere for girls) to a school at Rampurhat. He submits that the
welfare of the child is the paramount consideration in a case of this kind.
Question arises where an Act VIII case is to be filed? According to the
Statute, an Act VIII proceeding is to be lodged before the District Judge within
whose jurisdiction the minor ordinarily resides. 5th February, 2019, when the
custody was sought for and the Act VIII proceeding was filed before the District
Judge at Alipore, according to the learned counsel, the minor was residing at a
place within the jurisdiction of Alipore Court, that is, Prince Anwar Shah Road.
Therefore, there cannot be any illegality in filing the Act VIII case in the Court at
Alipore but from the submission made by the learned counsel for the petitioner
that the child was not in Kolkata when the proceeding was initiated before the
Alipore Court.
From the petition under Section 24 of Code of Civil Procedure filed by the
wife/petitioner it appears that she has made out a ground for transfer of the
instant Act VIII case no. 17 of 2019 filed on 5th February, 2019 for her
inconvenience to attend the Court at Alipore inasmuch as to attend such custody
matter she has to travel more than 225 kilometres from her present place of
residence at Mallarpur in the district of Birbhum. The other ground for seeking
transfer is that Mallarpur P.S. Case No. 29 of 2019 dated 30th January, 2019 is
pending at Rampurhat Court where the opposite party has to attend. Therefore,
according to her Act VIII case may also be transferred to the Court at Birbhum.
From the Application for custody of the minor daughter under Section 25
of the Guardians and Wards Act, 1890 read with Section 6(a) of the Hindu
Minority and Guardianship Act, 1956 appearing at page 119 of the application
under Section 24, it appears that the father/opposite party made out a case that
the petitioner herein forcibly took the minor daughter with her despite protest
and objection of the opposite party and his family members. It has been stated by
the opposite party in the said application that his daughter was attending ‘La
Martiniere School’ till the middle of December, 2018. However, after the school
closed for Christmas vacation the petitioner took the minor daughter and shifted
to her parental house at Mallarpur in the district of Birbhum. Because of such
shifting of the residence of the petitioner from Kolkata to Mallarpur the minor
daughter could not attend school after it reopened on 15th January, 2019.
According to the petitioner her stay at the matrimonial home at Kolkata was
terminated by the opposite party on and from 24th November, 2018 but with
regard to her daughter’s attending the school at Kolkata till closing of Christmas
vacation the petitioner says that a few days after her termination from the
matrimonial home, the daughter attended the school with her grand-mother for a
few days (emphasis given by me) as has been stated in the reply of the
mother/petitioner to the affidavit-in-opposition filed by the opposite party to
Section 24 application. It is not clarified as to how the daughter could attend the
school even after the petitioner left the matrimonial home on 24th November,
2018 and further while she denied her stay at Flat No.5B, Tower III, 375, Prince
Anwar Shah Road, Kolkata-700068. However, she says that even the child
attended the school with her grand-mother for few days does not mean that she
has got a permanent residence at Kolkata to contest the case at Alipore Court. In
the rejoinder filed by Rishi Agarwal a categorical statement has been made
stating that his daughter attended school till closed for winter vacation and the
petitioner stayed at the south city flat. This fact has not been denied by the
petitioner. In her reply affirmed on 14th June, 2019 the petitioner has annexed a
document purportedly issued by ‘St. Paul’s School’ showing admission of child in
Class UKG on 15th January, 2019. She has also annexed a document being R-1
at page 9 which shows payment of a sum of Rs.20,200/- on various heads
including admission fee but nothing has been disclosed in the said document
about the name of the child, class, admission number. Date of admission has
also not been disclosed. The name of the school in the said document appears to
be ‘St. Paul’s International School, Munsuba’. Logo appearing on the said two
documents also are not identical. The second document does not disclose any
date, as a result a suspicion arises firstly, about the genuineness of the
admission on the basis of those two documents and the date when, if at all, such
admission has been granted by the school. It is undisputed that on 5th February,
2019 when Act VIII case was filed the opposite party moved an application for ad
interim injunction and Court granted an order on 5th February, 2019 itself.
By the said order the learned District Judge, Alipore, restrained the
present petitioner (Dipika Agarwal nee Khaitan) from taking transfer certificate of
the child from ‘La Martiniere School’ to any other school till 5th March, 2019. By
the said order this petitioner was also directed to show cause by 05.03.2019 as
to why the application under Section 12 of the Guardians and Wards Act, 1890
shall not be granted in favour of the opposite party (Rishi Agarwal). Undisputedly,
the said order was never challenged nor any application was made for vacating
the same. In the written statement it has been stated by the opposite party that
the application under Order XXXIX Rules 1 and 2 of Code of Civil Procedure was
served upon the petitioner and on receiving the same the petitioner herein
affirmed the present petition on 14th February, 2019 without making any
endeavour to appear before the Court of the Learned District Judge at Alipore.
The disclosure made by the petitioner in her affidavit that the child was admitted
allegedly in ‘St. Paul’s School’ does not appear to be bona fide as a natural course
of action. The act is tainted with mala fide to create jurisdiction of Court at
Mallarpur at the cost of the invaluable future of minor Sambhuti which may not
be realized by anyone but the mother should have. The petitioner has disclosed
the application under Order XXXIX Rules 1 and 2 in her petition under Section
24 but it has not made any whisper as to its fate, save and except ground no.1
where she has stated that she was not in a position to attend the Court at
Alipore.
Learned counsel for the petitioner has submitted that having regard to the
provision of Section 9 of the Guardians and Wards Act, 1890 it is the ordinary
residence of the minor which is to be considered for the purpose of jurisdiction in
a custody petition or Act VIII case. According to Mr. Mukherjee the child was
residing at Kolkata; it is undisputed that she attended the school at ‘La
Martiniere School’ till the end of December, 2018 but after termination of the
petitioner’s stay at her matrimonial home she took the child with her at
Mallarpur and therefore, Mallarpur should be considered to be the place where
the minor ordinarily resides.
Learned counsel for the father/opposite party submitted that the petition
for transfer under Section 24 should be rejected as no ground has been made out
for transfer. According to him it is the welfare of the child should always be given
preference to consider a case for custody of a child and since the child was
admitted in ‘La Martiniere School’ the mother had no right to take her away
without the consent of the father. More so, when it is on record that the child
was promoted to the next class in the school and further that no transfer
certificate has yet been issued by the school authority of ‘La Martiniere School’.
According to him the petitioner has acted illegally in getting the child at
Mallarpur if it is true and if the document relied on by the petitioner worth
believable. He further submitted that his client is agreeable to bear all cost
relating to the study of child at ‘La Martiniere School’. He submitted that his
client is an alumnus of the said school and it will be better for the child to grow
in that school where he had occasion to grow up. He submitted on instruction
from his client that even for the better prospect of the child she should continue
the study in ‘La Martiniere School’. The father/opposite party is agreeable even to
bear all incidental cost for separate accommodation charges for the girl child
and her mother. Learned counsel relied on the following two decisions
• Pravik Guha Thakurta – Vs. – Smt. Sharmistha Guha Thakurta
(C.O. No. 3841 of 2018) (unreported) decided on 19th March, 2019
and
• Tejaswini Gaud –Vs. – Shekhar Jagdish Prasad Tewari (decided on
6th May, 2019)
The decisions cited by the learned counsel are distinguishable on fact and
are not applicable in the facts situation of the present case.
It is important to note that who is the natural guardian of a Hindu minor
according to Hindu Minority and Guardianship Act, 1956. Section 6 of the said
Act says that “natural guardian of a Hindu minor, in respect of the minor’s
person as well as his property – in the case of a boy or un-married girl is the
father and after him the mother; provided that the custody of a minor who has
not completed the age of five years shall ordinarily be with the mother”. The child
in this case is admittedly above five years. Therefore, the natural guardian of this
Hindu minor girl should ordinarily be the father and it should be presumed that
the child should be residing with the father. Father’s permanent residence is at
Kolkata the daughter was also residing at Kolkata. She was taken to Mallarpur
without the consent of the father and contrary to Court’s order. Even without
taking any transfer certificate the child was put in a different school and allegedly
got admitted there. In my view, the child was taken to Mallarpur to confer
jurisdiction upon the District Court at Birbhum without considering that the
child was very much in Kolkata before the Act VIII case was filed and this is
believable because nothing was communicated to the school authority by the
petitioner that the child was admitted in a different school. The presumption goes
in favour of child’s ordinary residence at Kolkata may be for a temporary stay
outside with the mother and that does not create a jurisdiction for the
application for custody of the child.
The decisions cited by either of the parties are not relevant in the fact
situation of the present case and they are distinguishable on facts. Therefore, I
do not rely on those decisions cited by the parties.
In considering that Alipore Court having jurisdiction where the Act VIII
case has been filed by the natural guardian/father, I hold as follows:
1) It is undisputed rather admitted by the mother of the child that the minor
continued the session in ‘La Martiniere School’ till Christmas vacation and
that there was an injunction from taking transfer certificate passed by the
Civil Court. No plausible reasons has been furnished as to how without
transfer certificate the child got admitted in a school at Mallarpur and that
too without the consent of the natural guardian. The admission taken in
the school at Mallarpur is, therefore, by suppressing the order of injunction
and by some other method which cannot be recognized to be legal and
valid and the child is compelled to stay with the mother against the wish of
the natural guardian under the provisions of Section 6 of the Hindu
Minority and Guardianship Act, 1956.
2) It is rather admitted by the mother/petitioner that even after alleged
termination of her stay in the matrimonial home the child used to stay with
her grand-mother and continued schooling at ‘La Martiniere School’ and
this fact is supported by the statement of the opposite party that the child
was promoted to higher class in respect of which he has furnished
documents which are on record. Ignoring such development it is
impermissible for this Court to hold that Alipore Court lacks jurisdiction
over the custody of the child.
3) This Court holds that when undoubtedly father is the natural guardian of
the minor daughter who has crossed five years, she was supposed to stay
with the natural guardian in ordinary parlance and father being a
permanent resident of Kolkata there was no wrong in instituting the Act
VIII proceeding in the Court at Alipore jurisdiction.
4) I hold that the child was shifted from Alipore jurisdiction to Mallarpur by
the mother firstly, to defeat the jurisdiction of the Court and such action is
still in conflict with Court’s order and should be condemned when this fact
has brought to the notice of the Court. Court cannot ignore the same and
direct transfer of the Act VIII case to any other place.
With these observations I hold that the learned District Judge before
whom the Act VIII proceeding is pending shall continue with the same as it has
got the jurisdiction to decide the case. The learned District Judge shall dispose of
the proceeding at an early date preferably within three months without giving
unnecessary adjournment to either of the parties. The learned District Judge
shall be free to consider the application for custody and shall pass all necessary
order for the benefit and welfare of the minor. Learned counsel for the opposite
party/father in course of his submission requested the Court to record an
undertaking on behalf of his client that he is agreeable to provide accommodation
for both the child and her mother in Kolkata at his cost apart from the
expenditure to be involved for the minor’s study in ‘La Martiniere school’. I am
not inclined to record such submission at this stage as this will tantamount to
transgression over the jurisdiction of the learned Court below. The learned Court
below shall however, be absolutely free to pass all necessary orders for the
welfare of minor Sambhuti without being swayed by any observation made
herein.
Therefore, I am not inclined to exercise my jurisdiction under Section 24 of
the Code of Civil Procedure for withdrawing the Act VIII case from the Court at
Alipore.
The learned Court below shall, however, give the petitioner full opportunity
to contest the proceeding.
Application under Section 24 of the Code of Civil Procedure stands
disposed of without any costs.
In Re: C.O. No. 1094 of 2019
This is an application under Section 24 filed by the wife/petitioner seeking
transfer of Matrimonial Suit No. 246 of 2019 currently pending before the learned
9th Additional District Judge at Alipore. This application has been filed before this
court on 18th March, 2019. In the application the petitioner has made out some
grounds for transfer namely:
1. That she has a five year old female child and is not in a position to
attend the Court at Alipore, South 24 Parganas inasmuch as she stays
at her parental home in the district of Birbhum.
2. In attending the Matrimonial Suit in the Court at Alipore she has to
travel 225 kilometres which might take five hours from Mallarpur,
Birbhum to Alipore Court.
3. Mallarpur P.S. Case No. 29 of 2019 dated 30.01.2019 is pending at
Rampurhat Court, District Birbhum where the opposite party and his
family members have to attend.
The petitioner submitted that for her inconvenience as aforesaid she is
unable to attend the Court in Alipore and for a proceeding which is pending in
the court at District Birbhum is also to be attended by the husband. Therefore,
on that consideration the Matrimonial Suit also should be transferred in the
Court at Birbhum.
In my view, simply because the wife feels inconvenient to attend Court at
Alipore is no ground for withdrawal of Matrimonial Suit from the Court at Alipore
and to transfer it in the district of Birbhum. From the averments it does not
appear that there was no cause of action for filing the Matrimonial Suit in the
Court at Alipore. Therefore, the ground of inconvenience pleaded by the
petitioner/wife has to be weighed with other attending circumstances. I have
already held that Act VIII case cannot be transferred to Birbhum. Therefore, the
wife has to contest the proceeding in the Court at Alipore. The other grounds
taken by the wife that a police case is pending in Rampurhat cannot be the sole
ground for transfer of the Matrimonial Suit in the Court at Birbhum. The
husband/opposite party is one of the accused persons in the said case. However,
from the summons it appears that such P.S. case initiated after the Matrimonial
Suit has been filed before the Alipore Court. That apart the petitioner has also
not disclosed before which Court the P.S. case has been registered and pending
and under which sections of the Indian Penal Code such complaint has been
filed. That being so such statement in the Section 24 application need not be
taken account of.
On consideration of the submissions of the learned Advocates and on
consideration of the materials disclosed in the petition, I am of the view that the
application under Section 24 deserves no order for transfer.
C.O. No. 1094 of 2019 is dismissed.
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.
(Sahidullah Munshi, J.)
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COMMENTS