MANU/WB/0199/2020

IN THE HIGH COURT OF CALCUTTA

CO 249 of 2020
Decided On: 10.02.2020
Appellants: Dipika Agarwal nee Khaitan
Vs.
Respondent: Rishi Agarwal
Hon'ble Judges/Coram:
Bibek Chaudhuri, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Joydeep Kar, Sr. Adv., Siddhartha Banerjee, Kunal
Ganguly and Arunava Ganguly, Advs.
For Respondents/Defendant: S.K. Kapoor, Saptangshu Basu, Sr. Advs., Aniruddha
Chatterjee and Ayan Kumar Boral, Advs.
JUDGMENT
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

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 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."
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

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 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 MANU/SC/0621/2011 : (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,

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 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.
1 3 . 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 MANU/WB/0868/2011 : 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

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 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 softy, I cannot
take risk". 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.
1 6 . 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.
1 7 . 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.
1 8 . 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

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 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
MANU/KE/2564/2018 : (2018) 4 KLT 620. 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, MANU/KE/0084/1957 : 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

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 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
MANU/KE/0574/1988 : 1988 (1) KLT 611)."
22. A close reading of the observation of the Division Bench of Kerala High Court as
quoted above suggests that the word "Ordinarily resides" do not have the same
meaning as "residence at the time filing of an application". 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

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 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.
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