DIPIKA AGARWAL NEE KHAITAN Vs. RISHI AGARWAL

JUDGEMENT

(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.