Decided on July 04,2019

Dipika Agarwal Appellant
Rishi Agarwal Respondents


Sahidullah Munshi, J. - (1.) 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.
(2.) 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.
(3.) 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, 1993 AIR(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.;

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