Application of Guardianship of a minor is to filed in the Court under whose Territorial Jurisdiction the minor ordinarily resides.

Ronita Biswas | National Law University, Orissa | 20th January 2020

Sanchayita Deb (Guha) v. Susanta Deb (CO No. 3963 of 2018 with CO No. 3964 of 2018) 

Facts

Two applications had been filed by the petitioner under s. 24 of the Code of Civil Procedure being the legally married wife of the opposite party. The first suit filed by the wife/petitioner was regarding transfer of a matrimonial suit pending before the District Judge at Jalpaiguri to the District Judge at Durgapur.

The facts of the case are- the marriage of the petitioner was solemnized with opposite party under Special Marriage Act, on 14^th February, 2004. Thereafter, she gave birth to a child on 11^th June, 2006, who is now aged about 13 years. The child was a student of Bidhan School, Durgapur in the district of Paschim Burdwan. After the marriage, the petitioner was subjected to physical and mental torture by her husband/opposite party because of insufficient dowry given at the time of marriage. During the subsistence of marriage with the petitioner, it was alleged that the opposite party had performed a second marriage on 17^th July, 2012. However, the petitioner could not take any legal step since her husband was the Assistant Sub-Inspector of Police and his elder brother was an influential political leader of the locality. On 12^thDecember 2017, the second wife of the opposite party had come to the petitioner’s matrimonial home and physically assaulted her with a wooden bar causing injury. On the same night, the opposite party tried to commit her murder by smothering her with a pillow when he came to learn about the incident. The next day, the opposite party drove the petitioner out of his house with their son. Since then, the petitioner had been residing at her paternal home at Durgapur. 

Her husband filed a matrimonial suit against the petitioner for dissolution of marriage by a decree of divorce before the District judge, Jalpaiguri. The Petitioner was unemployed having no income of her own. She was completely dependent on her parents. Thereafter, she filed an application under s. 125 of CrPC against the opposite party but the opposite party failed and neglected to pay any maintenance of her and their minor child. It was further contended by the petitioner that distance between Durgapur and Jalpaiguri is more than 600km and it was not financially possible for her to bear such heavy expenses to contest the suit. Hence, the petioner prayed for transfer of the abovementioned matrimonial suit to the court of the Addl. District Judge at Durgapur.

Another application was filed by the petioner against the opposite party under s. 24 of CPC praying for transfer of miscellaneous case pending before the District judge, Jalpaiguri to the court of the Addl. District Judge at Durgapur. This case was filed by the opposite party under s. 12 and 25(1) of the Guardians and Wards Act, 1890 read with s. 13 of the Hindu Minority and Guardianship Act, 1956 praying for the custody of the minor child of the parties.

It was alleged by the petitioner that the minor son of the parties had been residing at Durgapur under the care of the Petitioner. He was a student of Bidhan School (Durgapur). The District Judge at Jalpaiguri had no prima facie jurisdiction to try the said miscellaneous case and according the case ought to be transferred to the court of Addl. District judge at Durgapur, who had the jurisdiction to try the said case.

Held

The Court reiterated a plethora of cases where SC held that inconvenience of the wife should be treated as the prime consideration in a proceeding under s. 24 of the CPC arising out of matrimonial dispute. Section 9 of the Guardians & Wards Act, confers territorial jurisdiction to the court in matters of Guardianship application.  Reliance was places on the case of Ruhi Sahina v. Syed Masidur Rahman (2018 5 WBLR Cal 299) wherein it was held that application with respect to guardianship of a minor must be filed in the court under whose territorial jurisdiction the minor ordinarily resided.

The Court held that since the minor child of the parties ordinarily resided at Durgapur with his mother, the court of the Addl. District Judge, Durgapur had the jurisdiction under Section 9 of the Guardians and Wards Act to try the said miscellaneous case for the benefit of the minor.