Bibek Chaudhuri, J
1. Section 9(1) of the Guardians and Wards Act, 1890 (hereafter the said Act) states that if the application for 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. Thus, Section 9 contemplates the territorial
jurisdiction of the Court in respect of an application for guardianship of a minor and the only test for determining jurisdiction of the Court is the
“ordinary residence†of the minor.
2. What is the scope of the expression “the place where the minor ordinarily resides†in Section 9(1) of the Act? Does it mean the ordinary
residence of the natural guardian of the minor where he/she was born or any other place where the minor resides with her mother after the martial
discord has arisen between the parents of the minor? These are the issues for determination in the instant revision.
3. The opposite party herein filed an application under Section 25 of the said Act read with Section 6(a) of the Hindu Minority and Guardianship Act
1956 before the learned District Judge, South 24 Parganas at Alipore seeking custody of the person of the female child born in the wedlock of the
petitioner and the opposite party. The said application was registered as Act VIII of the Case No.17 of 2019. It is ascertained from the averment
made by the petitioner in the application that her marriage was solemnized with the opposite party as per Hindu rites and customs on 24th November,
2012. After marriage both of them started residing at her matrimonial home at 11A, Ballygunge Circular Road, Kolkata-19. In the said wedlock,
petitioner gave birth to a female child on 23rd October, 2013. It was alleged by the opposite party that the petitioner is a patient of chronic depression
and obsessive compulsive disorder. In or about May, 2017, the petitioner went to her paternal home along with her minor child against the will of the
opposite party. It was further alleged that the petitioner failed to take due care and attention of her minor child as a result of which she suffered a
fracture in the left hand and had to undergo surgery on 28th May, 2017 at Apollo Gleneagles Hospital. Subsequently the minor was admitted in La
Martiniere School for Girls at Kolkata. The opposite party also made certain allegations against the petitioner of leading adulterous life which facts are,
however, not relevant for the purpose of determining jurisdiction of aforesaid Act VIII case and accordingly those are not recorded in the instant
order. It is pertinent to state that the opposite party has alleged that the petitioner forcibly took the minor away from the residence of the opposite
party to South City Residency at Prince Anwar Shah Road. The minor of the family attended La Martiniere School for Girls till middle of December
2018. When the school was closed for Christmas Vacation in 2018, the petitioner went to her paternal house at Mallarpur in the district of Birbhum
along with the said minor child. Therefore, the child was unable to attend school after it reopened on 15th January, 2019. The opposite party further
alleged that La Martiniere School for Girls is one of the premier academic institutions of the State and there is no such academic institution at
Mallarpur, Birbhum which could match the academic standard of La Martiniere School for Girls at Kolkata. It was also alleged that the petitioner
never took due care to rear and maintain the said minor child. The opposite party is capable to maintain his child and for best interest and welfare of
the child, her custody may be handed over to him.
4. Immediately upon getting the information about institution of Act VIII Case No.17 of 2019, the petitioner filed an application under Section 24 of the
Code of Civil Procedure before this Court with a prayer to transfer the said case to the Court of the learned District Judge, Birbhum on the ground
that the petitioner was compelled to leave her matrimonial home on being treated with cruelty by her husband, opposite party herein and other
matrimonial relations. The minor child of the family has been residing ordinarily with the petitioner. Therefore, the said Case No.17 of 2019 may be
transferred to the Court of the learned District Judge, Birbhum. The application under Section 24 of the Code of Civil Procedure was registered as
CO No.622 of 2019. Vide order dated 4th July, 2019 a Coordinate Bench of this Court dismissed the said revisional application holding, inter alia, that
the learned District Judge, South 24 Parganas at Alipore had territorial jurisdiction to entertain the said application.
5. The said judgment/order passed in CO No.622 of 2019 was assailed by the petitioner before the Hon’ble Supreme Court in Special Leave
Appeal (C) No.18641 of 2019. The aforesaid special leave appeal petition came up for hearing before the Hon’ble Supreme Court on 4th October,
2019 and upon hearing the learned Counsels for the parties the Hon’ble Supreme Court passed the following order:-
“We are not inclined to interfere with the judgment of the High Court. The Special Leave Petitions are, accordingly, dismissed. Pending
application(s), if any, stand disposed of. However, the question of jurisdiction is left open.â€
6. In view of the aforesaid order passed by the Hon’ble Supreme Court, the petitioner filed an appeal before the learned Additional District Judge,
10th Court at Alipore where Act VIII Case No.17 of 2019 was transferred for trial and disposal. Under Order XIV Rule 1 read with Section 21 and
151 of the Code of Civil Procedure and Section 9 of the said Act raising a preliminary issue as regards the territorial jurisdiction of the said court on
the ground that the petitioner has been residing with her minor child at her paternal home at Mallarpur, Birbhum. Therefore, the petitioner took shelter
at her paternal home with her child. As the minor child of the family ordinarily resides with the petitioner, the learned District Judge, Birbhum has
territorial jurisdiction to try and dispose of the application for guardianship of the person of the minor and the learned District Judge, South 24 Parganas
or the Additional District Judge, 10th Court, South 24 Parganas at Alipore has no jurisdiction to try the said proceeding.
7. The application was contested by the opposite party and by an order dated 10th January, 2020 the learned Additional District Judge, 10th Court at
Alipore rejected the said application under Order XIV Rule 1 read with Section 21 and 151 of the Code of Civil Procedure and Section 9 of the said
Act on contest.
8. The said order dated 10th January, 2020 passed in Act VIII Case No.17 of 2019 is under challenge in the instant revision at the instance of the
mother of the minor/petitioner.
9. Mr. Joydeep Kar, learned Senior Counsel on behalf of the petitioner submits that the petitioner hails from Mallarpur in the district of Birbhum where
her paternal home is situated. Her marriage with the opposite party was solemnized on 24th November, 2012. A girl child was born to the petitioner in
the said wedlock on 23rd October, 2013. Now, she is aged about six years. On 5th October, 2018 when the petitioner was staying at her matrimonial
home, her mother-in-law lodged an FIR against her. On 24th November, 2018, she was compelled to leave her matrimonial home and took shelter in a
transit flat situated at South City Residency at Prince Anwar Shah Road, before she moved to her paternal home, primarily to complete her
daughter’s academic session at La Martiniere School for Girls. Then she started to stay at her paternal home since December, 2018. Sometimes
in January, 2019, the opposite party filed a suit for dissolution of marriage by decree of divorce against the petitioner. Only then the petitioner lodged
an FIR against her husband and other matrimonial relations at Mallarpur PS in Birbhum under Section 498A and other cognate penal provisions of the
Indian Penal Code. The opposite party filed Act VIII Case No.17 of 2019 praying for custody of the minor child of the family before the learned
District Judge, South 24 Parganas. The petitioner immediately filed an application under Section 24 of the Code of Civil Procedure praying for transfer
of the said guardianship application to the Court of the learned District Judge, Birbhum which was registered as CO 622 of 2019. The said application
was dismissed on contest by a Coordinate Bench of this court by a judgment dated 4th July, 2019. The petitioner challenged the said judgment/order
passed by the Coordinate Bench of this Court in CO 622 of 2019 before the Hon’ble Supreme Court by filing a special leave petition. The special
leave petition was dismissed by the Hon’ble Supreme Court, however, leaving determination of the question of territorial jurisdiction of the court of
trial open. This led the petitioner to file an application under Order XIV Rule 2 read with Sections 21 and Section 151 of the Code of Civil Procedure
and Section 9 of the said Act disputing territorial jurisdiction of the learned District Judge, South 24 Parganas at Alipore to try the said guardianship
application. The application was dismissed on contest by the learned Additional District Judge, 10th Court at Alipore by an order dated 10th January,
2020.
10. It is submitted by Mr. Kar being ably assisted by Mr. Siddhartha Banerjee that Section 9(1) of the said Act is absolutely clear and explicit that the
District Court having jurisdiction in the place where the minor ordinarily resides has the territorial jurisdiction to try an application for custody of the
minor filed by a guardian.
11. In Ruchi Majoo vs. Sanjeev Majoo reported in (2011) 6 SCC 479, it is observed by the Hon’ble Supreme Court, inter alia, that whether the
minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of
law and fact, but unless the jurisdictional facts are admitted, it can never be a pure question of law, capable of being answered without an enquiry into
the factual aspects of the controversy. In the instant case it is not disputed that the petitioner was compelled to leave her matrimonial home following a
matrimonial dispute resulting in filing of a criminal complaint by her mother-in-law on 5th October, 2018. The petitioner/mother took her daughter with
her because at the relevant point of time she was only five years old. It is submitted by Mr. Kar that statutory provision contained in Section 6(a) of
the Hindu Minority and Guardianship Act, 1956 obviously contains that father is the natural guardian of the minor child aged five years. Till attainment
of five years of age, mother is the custodian of the child. However while deciding an application as to the territorial jurisdiction of a particular court in
relation to a guardianship application, court must take into paramount consideration of the welfare of the child. The allegation of the opposite party that
the petitioner illegally removed the minor from her father’s house stealthily and without permission of the opposite party does not have any leg to
stand because the petitioner had no other ordinary place of abode except her paternal home at Mallarpur in the district of Birbhum where she could
stay after she was compelled to leave her matrimonial home or was driven out from there.
12. According to Mr. Kar when a lady experiences matrimonial discord and suit for dissolution of marriage by a decree of divorce as well as criminal
case are filed against her, it is not possible for her to stay at her matrimonial home and under such factual background the parental home of the
petitioner should be treated as her ordinary residence. When the minor of the family resides with the petitioner, her ordinary place of residence is the
place where her mother resides.
13. Mr. Kar also draws my attention to certain documents annexed with the application being annexure R-2 and submits that the minor is already
admitted to an ICSE affiliated school under the name St. Paul’s School situated at Vidyadanga, Rampurhat. She has been pursuing her studies at
St. Paul’s School, Rampurhat. Thus there is no scope to hold that the minor temporarily resides at or that she was temporarily and stealthily
removed from her ordinary place of residence at Kolkata to by the petitioner.
14. Mr. Kar submits that in order to determine the territorial jurisdiction in respect of a guardianship application, the rough and ready workable test that
is required to be applied is, whether shifting of the child from his father’s residence to somewhere else where his/her mother takes him is
occasioned in the normal run of events or by design to create jurisdiction in any particular District Court of her choice or not. If such test is applied in
the instant case, it is found that the mother/petitioner had no other place to take shelter except in her father’s house due to the reason of marital
discord between her and her husband. It is not an unnatural feature that the minor has been residing with her mother at her matrimonial grand-
father’s residence. In view of such circumstances, it is submitted by Mr. Kar, that the learned District Judge, Birbhum has the territorial
jurisdiction to entertain the application for guardianship filed by the opposite party. In support of his contention, Mr. Kar refers to a decision of this
Court in the case of Subhadip Laskar vs. Sanjukta Laskar reported in 2011(3) CHN (CAL) 575.
15. Mr. S.K Kapoor, learned Senior Counsel on behalf of the opposite party, on the other hand, submits that the term “ordinary residence†implies
something more than a causal stay at a particular place. In the instance case the mother of minor left her maternal home with the minor on 24th
November, 2018 and took shelter in a flat situated at South City Residency till commencement of Christmas Vacation of the minor’s school at
Kolkata. The minor attended La Martiniere School for Girls from her mother’s temporary residence. The petitioner did not take permission and
consent of the father of the minor before shifting her to Mallarpur in the district of Birbhum. Mr. Kapoor heavily relies on an email sent by the
petitioner to the Secretary of La Martiniere School for Girls on 16th January, 2020. In the said email, the petitioner informed the school authority that
she and her husband are leaving separately due to personal reasons which are yet to be sorted out by Law. In between, she is residing at her paternal
house in in the district of Birbhum along with her minor daughter. She further stated, “it is just the matter of time that we will shift to Kolkata soon
once the ongoing family dispute is sorted, as a matter has come to my child’s safty, I cannot take riskâ€. With the aforesaid statement, the
petitioner prayed for 15 days leave for her daughter. She also asked for a new school escort card in her favour in the mean time. The principal of the
school received the said email on 27th January and granted leave to her child.
16. It is strenuously argued by Mr. Kapoor that the petitioner wanted to return Kolkata with her child to continue her child’s education at La
Martiniere School for Girls at Kolkata. However, in order to establish that the petitioner and her minor child have been ordinarily residing at , she has
filed photostat copies of school fees purportedly issued by one St. Paul’s School, Vidyadanga, Rampurhat on 15th January, 2019 and another
receipt purportedly issued by St. Paul’s International School, Munsuba for a sum of Rs.20,200/-. Mr. Kapoor raises a question as to how the said
minor was admitted in St. Paul’s School, Vidyadanga, Rampurhat or St. Paul’s School International School, Munsuba without taking transfer
from La Martiniere School for Girls at Kolkata. It is also pointed out by the learned Senior Counsel on behalf of the opposite party that the conduct of
the petitioner appears to be suspicious, inconsistent and mala fide because she try to impress upon the court that the minor of the family has been
residing at by showing a receipt of admission fees issued by the St. Paul’s School on 15th January, 2019 and again on the very next day she sent
an email to La Martiniere School authority requesting the authority to grant her daughter 15 days leave. In the said email she clearly mentioned that
she will return Kolkata immediately after the dispute between her and her husband is sorted out by Law. According to Mr. Kapoor this double
standard adopted by the petitioner shows her mala fide and she herself is not sure where the minor of the family will ordinarily reside.
17. Mr. Kapoor further submits that while disposing CO 622 of 2019, Hon’ble Sahidullah Munshi, J had dealt with the question of jurisdiction in
detail. Practically the application under Section 24 of the Code of Civil Procedure was filed by the petitioner challenging the jurisdiction of the learned
District Judge, South 24 Parganas at Alipore to try the guardianship application filed by the opposite party. The Hon’ble Judge took into
consideration of factual aspects of the matter and legal provisions involved therein and held that the learned District Judge, South 24 Parganas at
Alipore has jurisdiction to try the said application. The said judgment/order passed in CO 622 of 2019 was affirmed by the Hon’ble Supreme
Court. In view of such circumstances, jurisdictional question cannot be reopened in the instant proceeding.
18. In reply thereto Mr. Kapoor submits that while dismissing the special leave petition, the Hon’ble Supreme Court clearly left the question as to
the jurisdiction of the court of the learned District Judge, South 24 Parganas open. The order of the Hon’ble Supreme Court in Special Leave
Appeal (C) No.18641 of 2019 has to be given a reasonable meaning and the finding of jurisdiction in the judgment passed in CO 622 of 2019 cannot be
held to be sustained in view of the Hon’ble Supreme Court’s order permitting the parties to raise the question of jurisdiction of guardianship
application afresh. It is further argued by Mr. Kar that the scope of Section 24 of the Code of Civil Procedure and that of Section 9 of the said Act is
altogether different. Mr. Kar refers to page 13 of the Judgment passed by the Hon’ble Sahidullah Munshi, J and submits that the Hon’ble
Judge was pleased to hold that in view of Section 6 of the Hindu Minority and Guardianship Act, 1956 the opposite party is the natural guardian of the
minor, permanent residence of the opposite party is at Kolkata and the daughter was also residing at Kolkata. She was taken to without 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. The Hon’ble Judge was pleased to hold further that child was taken 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 held that the presumption goes in favour of the 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.
19. It is submitted by Mr. Kar that Section 6 of the Hindu Minority and Guardianship Act, 1956 cannot be pressed into action on the aid of Section
9(1) of the said Act.
20. Mr. Kar once again called upon this Court to consider that when marital dispute starts between husband and wife and the wife is compelled to
stay at her paternal home, the said place is considered as ordinary residence of the petitioner. Since the minor has been residing with her mother, her
mother’s place of residence is the place where the minor ordinarily resides. In such view of the matter, the District Court at Birbhum has the
territorial jurisdiction to try the guardianship application filed by the opposite party.
21. Similar question came up for consideration before the Division Bench of the High Court at Kerala in the case of Divya J. Nair vs. S.K Sreekanth
reported in (2018) 4 KLT 620 : 2018 SCC Online KER 3375. Paragraph 9 and 10 of the said report is important and relevant in order to decide the
issue involved in the instant revision:-
“9. The question as to 'ordinary residence' of a minor is always to be decided on the facts and particulars of each case. The expression 'where the
minor ordinarily resides' excludes places to which the minor may be removed at or about the time of the filing of the application for the enforcement of
the guardianship and custody of the minor. Where the application is filed soon after such removal, the place of such removal has to be ignored for the
purpose of determining the jurisdiction of the court to entertain the application. The new place, to which the minor may have gone or may have been
removed, can become the place of ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period.
Actual place of residence of the minor at the time of filing the application does not necessarily determine the jurisdiction of the court. Mere factual
residence at a place at the time of the proceeding is not sufficient to confer jurisdiction. Ordinary residence means more than a temporary residence,
even though such residence is spread over a long period (See Sarada Nayar v. Vayankara Amma, 1957 KLT 466).
10. ""Residence"" has a connotation in law. It is not meant to take in places of temporary stay, however long the stay may be. Though a casual
residence is also residence in a way, such transitory residence is not meant to be included within the purview of residence in law, unless a particular
context justifies its inclusion. Permanent residence is the place where a person is expected to be ordinarily found. The place where mere physical
presence is found may not necessarily be the place where he ordinarily resides. The expression ""ordinarily resides"" connotes a regularly settled home
and not a place of stay where the children are obliged to dwell by force of circumstances or compulsion of the employment of parents (See Chandy v.
Mary 1988 (1) KLT 611).â€
22. A close reading of the observation of the Division Bench of Kerala High Court as quoted above suggests that the word “Ordinarily residesâ€
do not have the same meaning as “residence at the time filing of an applicationâ€. The mere fact that a minor child has to temporarily go outside
the ordinary residence due to marital dispute between the husband and wife does not confer the jurisdiction upon a District Court where the child
temporarily resides. The expression “the place where the minor ordinarily resides,†in my opinion, means the place where the minor generally
resides and would be expected to reside but for a special circumstance. I am not unmindful to note, rather, I am in agreement with the learned Senior
Counsel on behalf of the petitioner that in case of marital dispute between husband and wife paternal home of the wife is the only place where she
can take shelter when she leaves her matrimonial home with her minor child, the mother’s residence should be considered as the ordinary
residence of the minor. However, in such a case, intention of the mother is required to be looked into from the factual background of each and every
case. Act VIII Case No.17 of 2019 was filed by the opposite party on 5th February, 2019. It is alleged in the said guardianship application that on 24th
November, 2018 the petitioner left her matrimonial home voluntarily without the permission of the opposite party with the minor child of the family and
took shelter in a flat at South City Residency, Prince Anwar Shah Road, Kolkata. Subsequently, during Christmas Vacation of the minor the petitioner
left her Kolkata residence and went to , Birbhum with the child. On 16th January, 2019 she wrote to the La Martiniere School authority to grant 15
days leave to her child. Therefore, it was the intention of the petitioner at least on 16th January, 2019 that the minor would continue her studies in La
Martiniere School for Girls, Kolkata. Thus, taking into consideration the aforesaid facts, it appears that immediately before the institution of Act VIII
case by the opposite party, the minor was taken to by her mother. While she was staying at , she expressed her desire to continue her child’s
education at Kolkata. Well settled is the law that if a child is removed to a place, the place of such removal will be ignored for the purpose of
determining the jurisdiction of the Court to entertain the application and in spite of such removal, the minor will be deemed to have her residence at the
place where he or she was ordinarily residing and the new place to which the minor may have gone or may have been removed will become the place
of ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period and the residence passed the test of
casual or temporary residence. The expression “where the minor ordinarily resides†in Section 9(1) of the said Act appears to have been
deliberately used to exclude places to which the minor may be removed at or about the time of filing of the application for the enforcement of
guardianship and custody of the minor. The phrase “ordinarily resides†indicates minor residence even at the time of presentation of the
application. The emphasis is undoubtedly on the minor’s ordinary place of residence.
23. In the instant case the minor was born in Kolkata. She used to stay at Kolkata till the last week of December, 2018. She was admitted in La
Martiniere School for Girls. She continued her studies in the school till December, 2018. After the petitioner left her matrimonial home with the minor
she took shelter in a flat at South City Residency, Prince Anwar Shah Road, Kolkata. Till date the petitioner did not make any formal application for
transfer of her minor child from La Martiniere School for Girls to . This Court is not in a position to rely upon two money receipt purportedly issued by
one St. Paul’s School, Vidyadanga, Rampurhat and one St. Paul’s International School at Munsuba. In the money receipt issued by the School
at Munsuba, even the name of the minor or date of admission are not mentioned. Therefore, this Court has every reason to hold that those documents
were created for the purpose of creating jurisdiction of the District Court at Birbhum. Since the minor was ordinarily residing at Kolkata since her
birth and she was pursuing her studies in a premier school at Kolkata, I cannot but to hold that the minor’s ordinary place of residence is within the
jurisdiction of the learned District Judge, South 24 Parganas at Alipore. In view of what has been stated above, I do not find any illegality or material
irregularity in the impugned order dated 10th January, 2020.
24. The instant revision under Article 227 of the Constitution of India is accordingly dismissed on contest, however without cost.
25. It is made clear that while disposing of the instant application, this Court had no scope to consider the question of paramount interest and welfare
of the child. This issue is left open for independent adjudication by the learned Court below. The learned Court below will of course decide such issue
without being influenced in any manner on the observation made by this Court while deciding territorial jurisdiction of a particular District Court.
