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2018 DIGILAW 839 (CAL)

Subir Sarkar v. Bhaskar Ghosh

2018-11-27

SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. The present two revisional applications arise from the same proceeding, being one for custody of a minor girl, namely, Ms. Parnika Ghosh, who was born on September 28, 2011 of the wedlock between the opposite party Bhaskar Ghosh and Smt. Soma Sarkar (since deceased), by the opposite party Bhaskar Ghosh, who is the father of the said minor. The petitioners are the parents and sister of the said deceased. By the order dated June 1, 2018, which has been challenged in C.O. No. 1931 of 2018, the Trial Court rejected the petitioners’ application challenging the jurisdiction of the Court to take up the matter. 2. The ground of challenge to the territorial jurisdiction was that the minor child, whose custody was sought in the parent proceeding under the Guardians and Wards Act, 1890, ordinarily resided at Krishnanagar with the petitioners, which fell within the territorial jurisdiction of the District Court at Nadia, whereas the proceeding for custody, bearing Miscellaneous Case No. 74 of 2017, was filed before the District Court at Barasat which, according to the petitioners, did not have territorial jurisdiction to entertain the matter. 3. Subsequently, when the petitioners prayed for an adjournment for moving this Court against the aforesaid order dated June 1, 2018, the Additional District Judge, before whom the matter is pending, vide order dated July 23, 2018, closed further cross- examination of the petitioners/opposite party and directed the miscellaneous case to be proceeded with ex-parte against the respondents/present petitioners. Such subsequent order dated July 23, 2018 has been challenged in C.O. No. 3818 of 2018. 4. Thus, the moot question which arises for consideration in the present revisional applications is, as to whether the District Court at Barasat had territorial jurisdiction to entertain the proceeding under the said Act. 5. In this context, both sides rely on the language of Section 9 of the Guardians and Wards Act, 1890. The provisions of the said section are set out below: “Section 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. The provisions of the said section are set out below: “Section 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.” 6. Learned senior counsel for the petitioners argues that the minor child has been residing with the petitioners at Krishnanagar for almost two years now and thus can be said to ‘ordinarily’ reside, as contemplated in Section 9(2) of the said Act, within the jurisdiction of the District Court at Nadia. As such, the Barasat Court has no jurisdiction to entertain the matter and the Trial Court acted without jurisdiction in turning down the objection as to territorial jurisdiction, raised by the petitioners. 7. Countering such arguments, it is submitted on behalf of the opposite party that the residence of the minor in the house of the petitioners was by compulsion and hence could not be treated as ‘ordinary residence’ for the purpose of Section 9 of the said Act. In this context, learned senior counsel for the opposite party places reliance on a judgment reported at [Konduparthi Venkateswarlu and others vs. Ramavarapu Viroja Nandan and others, AIR (1989) Orissa 151]. In this context, learned senior counsel for the opposite party places reliance on a judgment reported at [Konduparthi Venkateswarlu and others vs. Ramavarapu Viroja Nandan and others, AIR (1989) Orissa 151]. In the said judgment, the learned Single Judge of the Orissa High Court held, inter alia, that the purpose of using the expression “where the minor ordinarily resides” was probably to avoid the mischief that a minor may be stealthily removed to a distant place and even if he is forcibly kept there, the application for the minor’s custody could be filed within the jurisdiction of the District Court from where he had been removed or in other words, the place where the minor would have continued to remain but for his removal. In the said case, the in-laws of the father of the minor had retained the child and his mother for better treatment. However, when the father subsequently approached his in-laws to get back his son, the said request was refused and the father was compelled to file an application under Section 25 of the Guardians and Wards Act. In such a scenario, the single Bench of the Orissa High Court held that the permanent residence of the father and the minor was the place, the District Court of which had jurisdiction to hear the matter and passed orders accordingly. 8. The opposite party next cites a judgment reported at [V. Ravi Chandran vs. Union of India and others, (2010) 1 SCC 174 ]. In the said case, a conflict of Private International Law was discussed in the case of a habeas corpus petition under Article 32 of the Constitution of India before the Supreme Court for tracing a minor child. There it was held, inter alia, that although the minor child was in India for almost two years, since he was removed by the mother contrary to the custody orders of an US Court passed by the consent of parties, it was in the interest of the child that an application for custody was made promptly after removal of the child. Ultimately, it was directed that the minor be returned to the United States of America for the time being, from where he was removed. 9. Ultimately, it was directed that the minor be returned to the United States of America for the time being, from where he was removed. 9. By placing reliance on the above judgments, learned senior counsel for the opposite party argues that the forcible custody of the child with the petitioners, who are maternal grand-parents of the child, could not amount to the ‘ordinary residence’ of the child as envisaged in Section 9 of the said Act of 1890. It is further submitted that a proceeding under Section 97 of the Code of Criminal Procedure was also initiated at the behest of the opposite party-father promptly after removal of the child and the opposite party father left no stone unturned, at the earliest after removal of the child, to get the child back. As such, it is argued that the present custody of the minor daughter of the opposite party with the petitioners is unlawful, forcible and thus partakes a temporary character, which does not confer jurisdiction on the Nadia District Court to entertain the matter. 10. Upon hearing both sides, the following facts are brought to light: Date Incidents September 28, 2011 Minor child Parnika born. September 16. 2016 Mother of the child died. December 3, 2016 The child was removed from the custody of the opposite party-father and taken to the petitioners. December 3, 2016 General Diary Entry lodged by opposite party- father in respect of removal of the child. December 9, 2016 A proceeding under Section 97, Criminal Procedure Code initiated for issuing a search warrant against the petitioners in respect of the minor child. March 10, 2017 An order was passed in the proceeding under Section 97, Criminal Procedure Code retaining custody of the child with the petitioners. 11. It is argued by the petitioners that such custody order, passed by the Magistrate in the proceeding under Section 97 of the Criminal Procedure Code, was never challenged by the opposite party-father and as such, the custody of the child with the present petitioners cannot be labelled as unlawful or temporary. 12. However, it is the admitted position that a trial for alleged wrongful confinement of the child by the petitioners is going on at present. 13. 12. However, it is the admitted position that a trial for alleged wrongful confinement of the child by the petitioners is going on at present. 13. The question which arises for consideration is, as to whether the custody of the child with the petitioners for about two years can be termed as ‘forcible’ and thus, temporary, as per the ratio laid down by the Orissa High Court in the cited judgment. The said judgment of the Orissa High Court is directly on the point and has persuasive value on this Court. Without any doubt, the ratio laid down therein is logical and is acceptable to this Court. 14. However, the cited judgment of the Supreme Court was on a different footing altogether and no proposition was laid down therein specifically on the question involved in the present lis. In the said case, the matter arose from a habeas corpus proceeding and the child had been removed in violation of the order of a Court of the United States of America. The roots of the child having formed in a different country than India was considered by the Supreme Court and the judgment rendered in such context. The territorial jurisdiction as contemplated under Section 9 of the 1890 Act was never considered in such judgment and as such, the said judgment is not a binding precedent on the facts of the present case at all. 15. The facts of the present case make it clear that the child resided with the opposite party father (and her mother, since deceased) for more than five years from her birth. Thereafter, for the subsequent two years till date, the minor child Parnika has been residing with the petitioners. The order dated March 10, 2017, passed by the Magistrate in connection with the proceeding under Section 97 of the Code of Criminal Procedure, was only of an interim nature and could not have any binding effect on a Civil Court. Coupled with such order, it cannot be ignored that a search warrant was issued in respect of the minor girl and a proceeding for wrongful confinement is also continuing at the behest of the opposite party-father. Coupled with such order, it cannot be ignored that a search warrant was issued in respect of the minor girl and a proceeding for wrongful confinement is also continuing at the behest of the opposite party-father. The father wasted no time in initiating a proceeding under Section 97 of the Criminal Procedure Code, at the earliest after removal of the child, preceded by a General Diary Entry lodged by the father on the alleged date of removal itself. 16. When the child was removed from the custody of the father by the petitioners the child had not attained the age of forming an intelligent preference. In fact, even as of today, the child is only about seven years old and could not have a conscious opinion in law as to a choice of her custody. Hence, even if the child is amenable to residence with the petitioners, such fact ipso facto cannot be an indicator as to the residence of the child with the petitioners being forcible or willful. 17. To adjudge the nature of the residence, the efforts of the father/opposite party, who is the natural guardian of the daughter, in attempting to recover the child, have to be factored in. It is seen from the records that the father ran from pillar to post to recover the child. The isolated fact of an order passed under Section 97 of the Criminal Procedure Code, pertaining to an interim arrangement as to the custody of the child, could not stand in the way of the residence of the child being held to be forcible on the face of it. More so, since the said order was passed only on March 10, 2017, that is after the child was kept by the petitioners for a considerable period. 18. Even if the nature of the residence of the child, respectively at its paternal home for a period of five years and at the home of the petitioners for two years only, is taken into consideration, the period of residence at the paternal home would far outweigh that with the petitioners. 19. 18. Even if the nature of the residence of the child, respectively at its paternal home for a period of five years and at the home of the petitioners for two years only, is taken into consideration, the period of residence at the paternal home would far outweigh that with the petitioners. 19. Taking in conjunction with the legal position that the father-opposite party is the natural guardian of the minor and took out all efforts to regain custody of the minor in the interregnum, and the fact that the petitioners have not been appointed as legal guardian of the child by any competent Court of law, the unerring conclusion would be that the nature of the residence of the minor child with the petitioners is of a temporary nature, in consonance with the ratio laid down by the cited judgment of the Orissa High Court. 20. Since Section 9(2) of the 1890 Act envisages that the District Court having jurisdiction in a place where the minor ordinarily resides will have the jurisdiction to entertain applications in respect of the guardianship of the person of the minor, and since the District Court at Barasat is the Court having territorial jurisdiction to entertain the matter in view of the minor ‘ordinarily residing’ within the territorial jurisdiction of the District Court at Barasat, the Trial Court was justified in turning down the objection of the petitioners as to territorial jurisdiction. 21. Accordingly, C.O. No. 1931 of 2018 is dismissed on contest, thereby affirming the impugned order, being Order No. 44 dated June 1, 2018 and holding that the Barasat Court has jurisdiction to entertain and dispose of Miscellaneous Case No. 74 of 2017. 22. As far as C.O. No. 3818 of 2018 is concerned, since a challenge was preferred against the order turning down the objection of the petitioners as to territorial jurisdiction, and if the petitioners participated in the proceedings, it might have been construed as an acquiescence to the jurisdiction of the Court, it would be unfair to close the evidence of the petitioners and the cross-examination of P.W. 1 and to fix the matter for ex parte hearing. 23. 23. In such view of the matter, C.O. No. 3818 of 2018 is allowed on contest, thereby setting aside the impugned order, being Order No. 47 dated July 23, 2018 and directing the Additional District Judge, Fifth Court at Barasat to take up the matter from the stage at which Miscellaneous Case No. 74 of 2017 was pending before it, prior to the date of passing the said impugned order. It is made clear that the petitioners will now be permitted to complete the cross-examination of P.W. 1 and thereafter the matter will proceed in its own course. However, in view of the implicit urgency involved in the matter, the Additional District Judge, Fifth Court at Barasat is requested to make an endeavour to take up for hearing and dispose of the said miscellaneous case as expeditiously as the business of the said Court permits. 24. There will be no order as to costs. 25. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.