Calcutta High Court (Appellete Side)
Rukhsar Parveen vs Md. Sirajuddin on 6 September, 2023
06.09.2023
Item no.170
CP
C.O. No. 1543 of 2023
Rukhsar Parveen
Vs.
Md. Sirajuddin
Mr. Debjit Mukherjee
Ms. Susmita Chatterjee
Ms. Dipanwita Ganguly
Mr. Kaustav Bhattacharya
Ms. S. Chakraborty
.....for the petitioner.
This is the third occasion that an affidavit-of-
service has been filed indicating that the opposite
party has been served with the copy of the revisional
application as also notices indicating that this matter
would appear before this court today.
The petitioner (mother) seeks transfer of Act
VIII Case No. 50 of 2023, which is pending before the
learned Additional District Judge, 8th Court at
Barasat to any court of competent jurisdiction at
Howrah.
Mr. Mukherjee, learned advocate, refers to the
provisions of Section 9(1) of the Guardians and
Wards Act, 1890 in order to substantiate the ground
for transfer. It is submitted that the law provides that
the district court within whose jurisdiction the minor
child ordinarily resides shall have the jurisdiction to
hear out the matter. Referring to Section 4(5)(b)(ii) of
the said Act, learned Advocate submits that the
residence of the minor child would be the prime
consideration for determination of the jurisdiction of
the court, where the Act VIII Case should be filed.
Reliance has been placed on several decisions.
The decision in Sri Soumendra Malik vs. Smt. Tumpa
Malik, reported in (2018) 1 CAL 314 (HC), is
discussed hereunder:-
"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."
Reliance has also been placed on a decision in
the matter of Soumi Mukherjee vs. Sri Manas
Mukherjee, reported in (2019) 4 CHN 480. Paragraph
22 of the said decision is quoted below:
22. There is no dispute that the question
as to whether a minor ordinarily resides in a
particular place or not, is undoubtedly a
question of fact. In a legal proceeding, when a
fact is asserted by one party and the same is
denied by the other, it gives rise to an issue of
fact which requires to be adjudicated on the
basis of evidence. It is a settled principle of law
that a fact not disputed need not be proved. In
the application under Section 24 of the CPC, it
is categorically stated by the petitioner that her
minor son has been residing at Makhla in the
District of Hooghly since March, 2018. The said
fact has not been disputed by the opposite
party. The opposite party has raised dispute as
to the present residence of the petitioner -
whether it is at Santragachi or Makhla. The
opposite party also pleaded that the petitioner
stays at Asansol for her employment. But the
facts that their minor child has been residing
in Makhla and pursuing his studies at
Methodist School, Dankuni, are not
challenged. The contentions of the petitioner as
to the "ordinary residence" of the minor
remains uncontroverted. Order 8 Rule 5(1) of
the CPC provides that every allegation in the
plaint, if not denied specifically or by necessary
implication, shall be taken to be admitted
except as against the party under disability.
Under Rule 5(2) of Order 8, it is open to the
court to pronounce a judgment on facts
admitted. The rule is, of course, permissive in
nature. In support of my decisions, following
decisions may be relied on:- * * * * *"
In the applications filed by the opposite party
before the learned court, there are admissions that
the child is residing with the mother. The mother
resides at Shibpur, Howrah.
As the opposite party has been served thrice,
but he has not shown any inclination to contest this
proceeding, the court is of the view that no useful
purpose will be served keeping the revisional
application pending. It also appears that my
Predecessors in Office, being satisfied with the
grounds as pleaded by the mother, had stayed the
proceedings, before the learned court below.
Having discussed the laws applicable, there is
no doubt that any competent court within the district
of Howrah would have jurisdiction to hear the
matter. The learned District Judge, 24-Parganas
North at Barasat, is directed to transfer the Act VIII
Case No. 50 of 2023 along with the pending
applications, if any, to the court of the learned
District Judge at Howrah.
The leaned District Judge, Howrah shall issue
notices upon the parties, upon receipt of the records
and proceed with the hearing of the Act VIII Case
along with pending applications, if any, and dispose
of the same expeditiously.
The revisional applications are accordingly
disposed of.
There shall be no order as to costs.
Parties are to act on the server copy of this
order.
(Shampa Sarkar, J.)
