SMITA RAY SAHA Vs. DEBMALYA SAHA

JUDGEMENT

(1.) This is an application under sec. 24 of the code of Civil Procedure 1908 at the instance of the wife/petitioner seeking transfer of a proceeding under the Guardian and Wards Act, 1890 (hereinafter called as Act VIII case) being No.3 of 2022 pending before the court of learned District Judge Paschim Bardhaman at Asansol to the court of learned District Judge North 24 Parganas at Barasat. Petitioner contended that she was married with the opposite party on January 31st , 2010 under the provisions of Special Marriage Act. The parties are blessed with a male child. Petitioner alleged that since 14/8/2021, the petitioner with the minor child was constrained to leave her matrimonial residence at Durgapur and started residing at her parental home at New Town , Kolkata. She was also compelled to resign from her job at Durgapur and currently she is unemployed, having no independent income of her own. The minor child studying at DAV Model School at Durgapur and continuing his study with online classes from the petitioner's parental home at New Town. The petitioner further stated that finding no other alternative she had to prefer an application seeking dissolution of marriage under sec. 27 of the Special Marriage Act 1954 being Mat Suit No. 2342 of 2021 against opposite party which is now pending in the court of learned Additional District Judge, 1st Court Barasat. The petitioner alleged that while petitioner was in her parental home, the opposite party during the time of visiting said child had openly threatened that he shall take forcibly custody of the child. In view of above, in the said divorce proceeding, considering welfare of the child, she was constrained to file an application under sec. 38 of the Special Marriage Act 1954, seeking an order of temporary injunction, restraining opposite party and his family members from taking forceful custody of child without due process of law. Said application came up for consideration before the said court and learned court was pleased to restrain the opposite party from taking forceful custody of the child without due process of law vide order dated November 10,2021. The opposite party entered appearance and has filed an application for vacating the interim order, which is pending for disposal.

(2.) The petitioner also states that currently she is unemployed and is in acute financial distress and thus constrained to prefer an application seeking maintenance in the said suit for dissolution of marriage. The petitioner's application seeking maintenance came up for consideration before the said court on March 9th, 2022, when the learned court was pleased to direct both the parties to file affidavit of assets.

(3.) The petitioner submits that pending said application for dissolution of marriage against the opposite party in Barasat court, opposite party has filed aforesaid Act VIII case seeking custody of child in the court of District Judge, Paschim Bardhaman at Asansol. In the said proceeding the opposite party has also filed application seeking production of minor child before the said court. The petitioner argued that the petitioner is a resident of New Town within the judgeship of Barasat Court and petitioners aforesaid suit for dissolution of marriage as well as application under sec. 38 of the Special Marriage Act is pending where the opposite party has appeared and contesting but the opposite party with evil motive and in order to harass the petitioner has deliberately initiated aforesaid separate proceeding before the court at Asansol, Paschim Bardhaman. In this context, her further case is that under the provisions of sec. 9 (1) of the Guardians and Wards Act 1890, the court at Asansol, Paschim Bardhaman cannot have any jurisdiction to hear the said proceeding as the ward is ordinarily residing with the petitioner within the jurisdiction of Barasat Court. Furthermore the issue involved in the application under sec. 38 of the Special Marriage Act 1954 filed by the petitioner in the said suit for divorce is similar and identical to the proceeding initiated by the husband /opposite party in Act VIII case. Under such circumstance, if two contradictory orders are passed in two separate proceedings having similar identical issue, there shall be traversity of justice. The petitioner further submits that it is extremely inconvenient for her and the minor child to attend the proceeding before the learned court at Asansol, which situates at a distance of 250 k.m. from the petitioners parental home. The petitioner has no relative or alternative accommodation at Asansol, where she can stay overnight. Accordingly the petitioner has prayed for aforesaid transfer.