Shantanu Moitra vs Ankana Moitra
2022 Latest Caselaw 7740 Cal

Citation : 2022 Latest Caselaw 7740 Cal
Judgement Date : 22 November, 2022

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

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,

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."

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.