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2019 DIGILAW 660 (CAL)

Soumi Mukherjee v. Manas Mukherjee

2019-06-21

BIBEK CHAUDHURI

body2019
JUDGMENT : 1. This is an application under Section 24 of the Code of Civil Procedure (hereafter the CPC) filed by the wife/petitioner against her husband/opposite party praying for transfer of Act VIII Miscellaneous Case No.3 of 2018 as well as Act VIII Miscellaneous Case No.8 of 2018 from the court of learned District Judge, Asansol, West Burdwan to the court of learned District Judge, Hooghly. 2. Factual matrix of the case leading to filing of the instant application is very short and stated below:- 3. Marriage of the petitioner with the opposite party was solemnized according to the Hindu Rites and Ceremonies on 21st April, 2014. The petitioner gave birth to a male child in the said wedlock between her and the opposite party on 10th July, 2015. So, the only son of the petitioner and the opposite party is presently aged about 4 years. During their marital life, the petitioner noticed that her husband/opposite party has been living an immoral life. It is alleged that the opposite party maintains intimate relation with another lady during the subsistence of his marriage with petitioner. As the opposite party lives an immoral life, it was not possible for her to live with her husband under one roof and she left her matrimonial home along with her minor child and took shelter at her mother's house at 455/1 TN Mukherjee Road, Makhla, Hooghly. The petitioner admitted her son in a Montessori School under the name and style of Kidzee, Uttarpara, Hooghly. Subsequently, the said child was admitted to Methodist School, Dankuni in the District of Hooghly, governed under Indian Council of Secondary Education (ICSE). 4. Sometimes in February, 2019 the petitioner came to know after receiving summons which was addressed to her, but sent to her brother's house at Santragachi in the district of Howrah that the opposite party has filed an application under Section 12 of the Guardians and Wards Act, 1890 praying for interim custody of their minor son. It is also learnt that the opposite party has filed an application before the learned District Judge, Paschim Burdwan at Asansol under Section 25 of the Guardians and Wards Act (hereafter 'the said Act') praying for custody of a minor child. It is also learnt that the opposite party has filed an application before the learned District Judge, Paschim Burdwan at Asansol under Section 25 of the Guardians and Wards Act (hereafter 'the said Act') praying for custody of a minor child. It is contended by the petitioner that she does not reside with her husband due to marital discord and she along with her son has been residing at Makhla, Hooghly since the said minor son of the petitioner has been ordinarily residing in Hooghly, learned District Judge Hooghly has the territorial jurisdiction to try an application under Section 25 of the said Act filed by the opposite party. It is further pleaded by the petitioner that the petitioner and her minor son are not in a position to contest the said proceeding under Section 25 of the Guardians and Wards Act at Asansol travelling a distance of about 400 Km from her present place of residence. Therefore, the petitioner has prayed for transferring the aforesaid miscellaneous cases to the court of the learned District Judge, Hooghly for trial and disposal. 5. The opposite party has been contesting the instant proceeding by filing an affidavit-in-opposition wherein and where under he denied entire allegation made out against him in the application under Section 24 of the CPC. It is specifically pleaded by the opposite party that after the birth of their son on 10th July, 2015, the opposite party purchased a self contained residential flat for the development and wellbeing of the child in close vicinity of eminent schools in Asansol. The said child was admitted to a prep-school under the name and style of Happy Feet at Asansol. Unfortunately the petitioner has no intention to lead happy conjugal life with the opposite party. She left her matrimonial home with her child sometimes on 27th March, 2018 without any valid reason. The opposite party tried his level best to settle the marital dispute amicably, but failed. The petitioner even did not allow him to meet the child even occasionally. Finding no other alternative, the opposite party filed an application under Section 25 and another application under Section 12 of the said Act, praying for permanent and interim custody of the person of their minor child. The petitioner even did not allow him to meet the child even occasionally. Finding no other alternative, the opposite party filed an application under Section 25 and another application under Section 12 of the said Act, praying for permanent and interim custody of the person of their minor child. The opposite party has vehemently denied the allegation made by the petitioner to the effect that he has been living an immoral life and maintaining intimate relation with other women. It is further pleaded by the opposite party that future education and all round development of the child would be better taken care of at Asansol in the district of West Burdwan than Makhla, Hooghly. The opposite party further denied that the petitioner took shelter at her mother's house at Makhla in the district of Hooghly. It is contended by him that the petitioner sent a draft application under Section 13B of the Hindu Marriage Act praying for mutual divorce against the opposite party from his brother's residence at Satragachi in the district of Hawrah. It is absolutely doubtful as to whether the petitioner has been residing at Makhla in the district of Hooghly. The petitioner is an employee of Eastern Coal Fields Limited and has been working as a staff nurse at Sanctoria Hospital, Eastern Coal Fields Limited near Asansol. She is performing her duties from Asansol which clearly proves that she does not reside at Makhla in the district of Hooghly. It is not pleaded by the petitioner that she is regularly commuting to her place of work to Asansol from Hooghly. Had it been so, the petitioner would not face any difficulty to attend Asansol Court to contest the application under Section 25 of the said Act filed by the opposite party. It would be evident from financial transaction and withdrawal of money by the petitioner through ATM Debit Card from the joint bank account maintained in the name of both the petitioner and opposite party at State Bank of India, Sanctoria Branch. From the transaction details of the Savings Bank Account, maintained jointly by the petitioner and opposite party, it is found that the petitioner withdrew money from the Savings Bank Account, Sanctoria Branch through ATM till 26th March, 2019. Therefore, it is submitted by the opposite party that the petitioner does not reside with her child at Makhla in the district of Hooghly. Therefore, it is submitted by the opposite party that the petitioner does not reside with her child at Makhla in the district of Hooghly. She wrongfully confined her child under the care of her mother at Makhla and deprived him of love and affection of both the father and/or mother. Therefore, the opposite party has prayed for dismissal of the instant revision under Section 24 of the CPC. 6. The petitioner, in turn, has filed an affidavit-in-reply controverting the allegation made out by the opposite party against her in the affidavit-in-opposition. It is further contended by the petitioner that since 26th June 2018 her minor child has been residing permanently at 455/1 TN Mukherjee Road, Makhla in the district of Hooghly with the petitioner and his grand-mother. Therefore, the learned District Judge Hooghly has alone the jurisdiction to try an application under Section 25 of the said Act for custody of the person of the minor son as the said minor son ordinarily resides within the jurisdiction of the learned District Judge Hooghly. The petitioner further pleaded that so long they were living with the opposite party, the opposite party did not purchase any residential flat at Asansol as alleged. The petitioner herself admitted her child to a prep-school under the name and style of Happy Feet and there was no contribution of the opposite party in such matter. It is, however, admitted by the petitioner that for the purpose of her employment, the petitioner has to stay for sometime at Asansol and whenever she gets leave, she comes to Makhla, Hooghly to stay with her minor son. The petitioner further pleaded that she deposits her salary in the joint account maintained in her name as well as in the name of the opposite party. She has withdrawn money from the said joint account through ATM Debit Card from the amount which she deposits from her salary. She never withdrew any money belonging to the opposite party. Lastly, it is contended by the petitioner that their minor son has been ordinarily residing within the jurisdiction of the learned District Judge, Hooghly. She has withdrawn money from the said joint account through ATM Debit Card from the amount which she deposits from her salary. She never withdrew any money belonging to the opposite party. Lastly, it is contended by the petitioner that their minor son has been ordinarily residing within the jurisdiction of the learned District Judge, Hooghly. He has been admitted to a ICSE affiliated school at Dankuni and therefore, the Act VIII Miscellaneous Case No.3 of 2018 under Section 25 of the Guardians and Wards Act as well as Act VIII Miscellaneous Case No.8 of 2018 under Section 12 of the said Act may be transferred to the court of learned District Judge, Hooghly from the court of learned District Judge, Asansol. 7. From the pleadings of the parties, following undisputed, rather admitted, factual circumstances can be ascertained:- (a) Petitioner is the legally married wife of the opposite party. (b) In the wedlock between the petitioner and the opposite party, the former gave birth to a mail child who is now aged about 4 years. (c) After the birth of the child conjugal life of the petitioner and the opposite party suffers from marital differences and discord. (d) The petitioner left her matrimonial home in March, 2018 with her minor child and took shelter at her mother's house at 455/1 TN Mukherjee Road, Makhla in the district of Hooghly. (e) The petitioner is an employee of Eastern Coal Fields Limited, Asansol and has been working as a staff nurse at Sanctoria Hospital near Asansol. (f) Till date none of the parties has filed any matrimonial proceeding praying for dissolution of marriage by a decree for divorce or judicial separation against other. (g) Till date both the parties have been maintaining savings bank account jointly in State Bank of India, Sanctoria Branch. (h) Since 2018 till date the minor son of the parties has been residing at Makhla in the district of Hooghly. 8. Mr. Debjit Mukherjee, learned Advocate for the petitioner at the outset draws my attention to Section 25 of the Guardians and Wards Act, 1890 which runs thus:- "25. (h) Since 2018 till date the minor son of the parties has been residing at Makhla in the district of Hooghly. 8. Mr. Debjit Mukherjee, learned Advocate for the petitioner at the outset draws my attention to Section 25 of the Guardians and Wards Act, 1890 which runs thus:- "25. Title of guardian to custody of ward - (1) If a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882). (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship. 9. From a plain reading of the above provision contained in Section 25 of the said Act, it is ascertained that a court of competent jurisdiction can make an order for return of the person of a ward and deliver into the custody of the guardian if a ward leaves from the custody of a guardian or is removed from the custody of such a guardian of his person. Paramount consideration for returning the ward and delivering his/her person into the custody of the guardian is the welfare of the ward. 10. Sub-section 3 of Section 25 clearly states that the residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship. 11. Mr. Mukherjee next leads me to Section 9 of the Guardians and Wards Act. Section 9 runs thus:- "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. 11. Mr. Mukherjee next leads me to Section 9 of the Guardians and Wards Act. Section 9 runs thus:- "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." 12. Next he refers to Section 4(5) of the Guardians and Wards Act. It is set out herein below:- "4.(5) "the Court" means-- (a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or (b) where a guardian has been appointed or declared in pursuance of any such application-- (i) the Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or (ii) in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or (c) in respect of any proceeding transferred under section 4A, the Court of the officer to whom such proceeding has been transferred;" 13. Referring to the above statutory provisions, it is submitted by Mr. Mukherjee that marriage of the petitioner and the opposite party was solemnized on 21st July, 2014. The petitioner gave birth to a male child on 10th July, 2015. Since March 2018, the petitioner has been residing with her minor child at Makhla in the district of Hooghly. The petitioner has submitted documents where from it can be found that the said minor child of the petitioner has been admitted to Methodist School, Dankuni. The petitioner gave birth to a male child on 10th July, 2015. Since March 2018, the petitioner has been residing with her minor child at Makhla in the district of Hooghly. The petitioner has submitted documents where from it can be found that the said minor child of the petitioner has been admitted to Methodist School, Dankuni. In the year 2018 he used to read in a Montessori School under the name and style of Kidzee situated at Uttarpara, Hooghly. Therefore, it is clear that the said minor child of the petitioner and the opposite party has been residing at Makhla in the district of Hooghly. It is strenuously urged by Mr. Mukherjee that Section 9 read with Section 4(5)(b)(ii) of the said Act confers jurisdiction to entertain an application with respect to the guardianship of the person of the minor and the district court having jurisdiction in the place where the ward for the time being ordinarily resides, as the jurisdiction to entertain such application. 14. According to Mr. Mukherjee the term "ordinarily resides" is different from the term "permanently resides". Father's residence may be the permanent residential address of a minor child but for the purpose of the Guardians and Wards Act, the District Court in the place where the child "ordinarily resides" has the jurisdiction to entertain an application for custody of minor child. In support of his contention, Mr. Mukherjee refers to a decision of the Division Bench of this Court in the case of Sri Soumendra Malik vs. Smt. Tumpa Malik reported in (2018) 1 CAL 314 (HC). Paragraph 12 of the aforesaid report is important for our purpose which is quoted below:- "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. 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." 15. Mr. Mukherjee next refers to another decision of a Coordinate Bench of this Court in the case of Ruhi Sahina vs. Syed Masidur Rahman reported in 2018 (4) ICC 166 (Cal). In the said report, a coordinate Bench of this Court relying on the decision in the case of Subhadip Laskar vs. Sanjukta Laskar reported in 2011 (3) CHN 575 , held that it is the place where the minor is presently residing is to be considered for the purpose of determining the jurisdiction where the application under Act VIII is to be filed. In the said judgment also, this Court gave answer to the legislative intent, why the words and expression "the child ordinarily resides" has been used, it is held that in order to enure the benefit of the child, the legislature consciously fixes the jurisdiction of the court to a place where "the child ordinarily resides" because when the custody matter would be heard, the child would be brought to the court, and, it is not expected that at every hearing day, the child would be brought from the place where he ordinarily resides to another place where the application is filed travelling about 400 Km in both ways. 16. Mr. Mukherjee further submits that the opposite party in his affidavit-in-opposition has stated that the petitioner does not reside at Makhla in the district of Hooghly, as alleged in the petition. She works as a staff nurse in Sanctoria Hospital near Asansol. In her affidavit-in-reply, the petitioner has admitted the said fact and further stated that whenever she gets leave, she stays with her minor child at Makhla. According to Mr. Mukherjee, it is immaterial if the petitioner regularly resides with the minor child or not. The matter in issue in the instant proceeding is to find out the answer where the child ordinarily resides. According to Mr. Mukherjee, it is immaterial if the petitioner regularly resides with the minor child or not. The matter in issue in the instant proceeding is to find out the answer where the child ordinarily resides. It is true that a temporary residence of a minor for few days or camping here and there with either of the parents by the minor being the victim of marital differences between the parties, cannot be treated as a place of ordinary residence of the child. But if it is found that the child stays in a particular place after being removed from her paternal home principally under the care and protection of the mother; the child has been pursuing his/her studies from that place, such a place should be considered as the place where "the child ordinarily resides". 17. Mr. Avijit Bardhan, learned Advocate for the opposite party, on the other hand submits that the question as to whether the minor is residing at a particular 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 controversy. In support of his contention, he relies upon a decision of the Hon'ble Supreme Court in the case of Ruchi Majoo vs. Sanjeev Majoo reported in (2011) 6 SCC 479 . According to Mr. Bardhan, when a particular question involves a disputed question of fact, the same cannot be decided without evidence that may be adduced by the parties during trial of the application under Section 25 of the said Act. 18. It is further submitted by Mr. Bardhan that the Hon'ble Supreme Court in the judgment of Ruchi Majoo (supra) got the opportunity to examine the true purport of the expression "ordinarily resides" appearing in Section 9(1). The Hon'ble Supreme Court was pleased to observe as follows:- "26...This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The Hon'ble Supreme Court was pleased to observe as follows:- "26...This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word 'ordinary' has been defined by the Black's Law Dictionary as follows: "Ordinary (Adj.)- :Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual." The word 'reside' has been explained similarly as under: "Reside. -live, dwell, abide, sojourn, stay, remain, lodge. (Western- Knapp Engineering Co. V. Gillbank, F 2d at p. 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as quality, to be vested as a right. (Bowden v. Jensen, SW 2d at p. 349.)" 27. In Websters dictionary also the word 'reside' finds a similar meaning, which may be gainfully extracted: "1. To dwell for a considerable time; to make one's home; live. 2. To exist as an attribute or quality with in." 19. Mr. Bardhan also refers to a judgment of this Court delivered by a Coordinate Bench in the case of Dr. Avijit Ghosh @ Dr. Abhijit Ghosh vs. Dr. Jayita Ghosh (Nee Chatterjee) reported in (2015) 3 CHN 487 (Cal). It is necessary to state the factual aspect of the above mentioned report. The wife/opposite party filed an application under Section 24 of the said Act praying for her appointment as guardian of the minor son till he attains majority and other consequential reliefs. The husband/petitioner challenged maintainability of the said proceeding under Section 24 on the ground that on the basis of a compromise decree, the opposite party was entitled to take the child in Malayasia for his well being under his custody. The trial court held the said proceeding maintainable. The husband challenged the said order passed by the learned trial court in revision before this Court. The trial court held the said proceeding maintainable. The husband challenged the said order passed by the learned trial court in revision before this Court. A Coordinate Bench of this Court placing reliance upon Ruchi Majoo (supra) and other judgments of Jagir Kaur vs. Jaswant Singh reported in AIR 1963 SC 1521 and Kuldip Nayar vs. Union of India reported in (2006) 7 SCC 1 held that to interpret the expression "ordinarily resides" the intention of the parties is to be gathered on the basis of evidence and not on the abstract narration of the facts in the application. It is further held that the intention is essentially a question of fact, which sometime assumes the character of mixed question of facts and law and such intention is required to be gathered not only from the pleadings, but also from the evidence produced before the court, both oral and documentary. This Court, therefore dismissed the revision filed by the husband and directed the trial court to decide the issue on full fledged trial. 20. Coming to the instant case, Mr. Bardhan submits that in order to ascertain jurisdiction of the court to entertain an application under Section 25 of the said Act, intention of the not only the parties but also the minor's intention is to be looked into and such decision cannot be taken on abstract pleading of the parties, but on the basis of the evidence that will be adduced by the parties as well as the minor. 21. Mr. Bardhan draws my attention to Paragraph 36 of the judgment in the case of Sri Soumendra Malik (supra). Paragraph 36 of the said report reads such:- "In cases covered under Section 25, the intention of the legislature is as I could gather is undoing the mischief of such removal of the ward from the custody of the lawful guardian, provided of course, that the return to the custody of the guardian is to the benefit of the minor. Paragraph 36 of the said report reads such:- "In cases covered under Section 25, the intention of the legislature is as I could gather is undoing the mischief of such removal of the ward from the custody of the lawful guardian, provided of course, that the return to the custody of the guardian is to the benefit of the minor. Therefore, provided that the guardian applies for such return to his custody within a reasonable time I hold that the District Court having jurisdiction must always be the District Court which exercises jurisdiction over the place where the ward has been staying before being removed from the custody of the guardian provided always that such application is made by the guardian with reasonable alacrity and any delay in making the application explained to the satisfaction of the learned District Judge in question." 22. Thus, the learned counsel for the opposite party concludes that in cases covered under Section 25of the said Act, the District Court having jurisdiction must always be the District Court which exercises jurisdiction over the place where the ward has been staying before being removed from the custody of the natural guardian provided always that such application is made by the guardian with reasonable alacrity and any delay in making the application explained to the satisfaction of the learned District Judge in question. 23. 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. 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:- 1. Sandhya Rani Biswas vs. Tarak Chandra Ghosh & Anr., (2009) 1 CLJ 228 2. Standard Chartered Bank vs. Andhra Bank Financial Services Ltd & Ors., (2010) 1 SCC 207 3. Muddasani Venkata Narsaiah (Dead) through Legal Representatives vs. Muddasani Sarojana, (2016) 12 SCC 288 . 24. Bearing the above mentioned basic principles of law relating to proof of a controversial fact, let me consider at the outset as to whether in this case there is any controversy with regard to the question where the minor child of the parties "ordinarily resides". 25. Surprisingly enough, none of the parties has annexed the application under Section 25 of the said Act which the opposite party has filed praying for custody of their minor child. However, in Paragraph 7 of the affidavit-in-opposition, it is alleged by the opposite party that the petitioner left her matrimonial home, along with the child, in March 27, 2018, even though there had been no cogent reason or necessity for her to do so. It is also alleged that the petitioner and her paternal relatives prevented the opposite party and his family members from meeting and/or communicating with the said minor child. So he was left with no option, but to file an application under Section 25 of the said Act praying for custody of his minor child. 26. It is also alleged that the petitioner and her paternal relatives prevented the opposite party and his family members from meeting and/or communicating with the said minor child. So he was left with no option, but to file an application under Section 25 of the said Act praying for custody of his minor child. 26. Thus it is an admitted fact that from March 27, 2018 the minor child of the parties does not reside at her paternal home. It is also not disputed that the said child has been residing for about 1 1/2 years at Makhla in the district of Hooghly. He was initially admitted to Montessori School at Uttarpara, Hooghly. In 2019, he was admitted to Methodist School, Dankuni. Admittedly since 27th March, 2018 the minor child never visited his paternal home at Asansol. In view of such admitted facts and circumstances, this Court can safely hold that at present the minor child of the parties "ordinarily resides" at Makhla within the jurisdiction of Hooghly. 27. In Ruchi Majoo (supra) the Hon'ble Supreme Court held that the question where a minor "ordinarily resides" is a question of fact. Sometimes such question assumes the character of a mixed question of law and fact and when a controversy question fact arises, it can only be decided on the basis of evidence adduced by the parties. However, in the said reported decision, the Hon'ble Supreme Court decided the question of jurisdiction of the court on the basis of documents in the form of e-mails exchanged between the appellant and the respondent with regard to the custody of the child and annexed with the application. 28. In Sri Soumendra Malik (supra) the Division Bench of this Court was pleased to hold that ordinary place of residence of a child depends on the factor where the child resides for a considerable period of time and where the child receives his initial education and upbringing. Considering the above factors amongst others, the Division Bench of this Court held that the appellant was not able to demonstrate that the ordinary place of residence of the minor was not at Baranagar. In the aforesaid reported decision, the minor child used to reside in the residence of his mother's maternal aunt (masi). The Division Bench of this Court held that the minor ordinarily resided in the said house at Baranagar. 29. Mr. In the aforesaid reported decision, the minor child used to reside in the residence of his mother's maternal aunt (masi). The Division Bench of this Court held that the minor ordinarily resided in the said house at Baranagar. 29. Mr. Bardhan tries to impress upon this Court that the minor child of the parties actually does not reside under the care and protection of his mother, the petitioner herein, because the petitioner is an employee of Eastern Coal Fields Limited and works as a nurse at Sanctoria Hospital near Asansol. Since the petitioner does not ordinarily reside at Makhla in the district of Hooghly with the minor child, the said residence cannot be treated as ordinary residence of the minor. I cannot accept such submission made by Mr. Bardhan. Requirement of the statute is "where the ward for the time being ordinarily resides". It does not require that the father or mother must ordinarily reside with the ward. Such question may be raised at the time of final hearing of the application under Section 25 of the said Act. The opposite party may raise the question, if the said minor normally gets love and affection, care and protection of the mother or not. In the instant proceeding, we are concerned with the question as to whether the minor ordinarily resides at Makhla in the district of Hooghly or not. In view of uncontroverted facts and circumstances, irresistible answer to the question is in the affirmative. 30. Before I part with, I must record a note of disagreement with regard to the observation made by a learned Judge of this Court in Paragraph 36 of Sri Soumendra Malik's case (supra). Section 4(5)(b)(ii)read with Section 9 of the said Act in clear and unequivocal terms confer jurisdiction upon the District Court in the place where the minor ordinarily resides to entertain an application under Section 25. By no stretch of imagination, the jurisdiction of the court can otherwise be fixed considering some extraneous circumstances to the effect that the minor was forcibly removed by one of the parents or that the minor was wrongfully confined to some place which cannot be treated as ordinary residence of the minor. Needless to say, a statutory provision must be interpreted in its plain and literal meaning. Needless to say, a statutory provision must be interpreted in its plain and literal meaning. Importation of certain imaginary circumstances to fix the jurisdiction of the court at a place other than what has been stated in the Statute, is, in my humble opinion not permissible. 31. It will not be out of place to mention here and now that in normal circumstances, a minor child usually resides with the parents. Abnormal situation in marital life arises out of matrimonial dispute resulting in separate living of the husband and wife. In such cases, minor child obviously resides with either of the parents. Under such background, applications for guardianship of a minor under Section 24 or custody of minor child under Section 25 of the said Act are filed. The Statute confers jurisdiction keeping in mind the benefit of the minor so that he/she may not be troubled to travel from one place to another being a pawn in the battle between his parents. Statutory provision as to the jurisdiction of the court cannot be stretched out to confer the jurisdiction to entertain such applications to the District Court having jurisdiction in the place where the child was born or permanent residence of the lawful guardian of the ward situates or the place from where he was allegedly removed. 32. I am also not unmindful to note that the ratio of the judgment in the case of Dr. Avijit Ghosh (supra) is not applicable under the facts and circumstances of this case. 33. In view of the above discussion, the instant revision is allowed on contest, however without cost. 34. The Act VIII Miscellaneous Case No.3 of 2018 as well as Act VIII Miscellaneous Case No.8 of 2018 be transferred to the court of the learned District Judge, Hooghly from the court of the learned District Judge, Asansol, Paschim Burdwan for trial and disposal. 35. The office is directed to send a copy of this order to the learned District Judge Asansol, Paschim Burdwan and the learned District Judge Hooghly for information and compliance. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.