Inconvenience of the wife should be treated as the prime consideration in a proceeding under Section 24 of CPC arising out of a matrimonial suit.

The Calcutta High Court reiterated the above-mentioned proposition in the matter of Sanchayita Deb vs Sustana Deb (CO No. 3963 and 3964 of 2018) published on 15.01.2020. Also, in terms of language of section 9 of the Guardians and Wards Act the benefit of the child should be ensured when the custody matter heard and it is not acceptable that the words “ordinarily residing” means the matrimonial home where the couple resided last. Therefore, for the convenience and inconvenience of the minor child in the firm opinion of the court ,the custody matter should be transferred to a Court where the minor child resides with his mother.

Facts:
The petitioner via two petitions sought for transfer of one matrimonial suit and another miscellaneous case filed by the opposite party/husband under Section 12 and 25(1) of the Guardians and Wards Act, 1890 read with Section 13 of the Hindu Minority and Guardianship Act, 1956 mainly on the ground of distance of Jalpaiguri from her paternal home at Durgapur where she was residing with her child. It was stated by the petitioner on oath that she has no income of her own. She was fully dependent upon her parents. The opposite party/husband has not paid any maintenance. Under such circumstances, the petitioner suffers inconvenience to travel Jalpaiguri from Durgapur which is situated at about 600 km away one way.
Issue:
Whether court in Durgapur has a jurisdiction to try the case?
Ratio:
In the instant case the High Court relied on the plethora of Apex Court decision wherein the Apex Court held that inconvenience of the wife should be treated as the prime consideration in a proceeding under Section 24 of the CPC arising out of a matrimonial suit.
With regard to the application under section 24 of CPC the High Court referred to the provision of section 9 of the Guardians and Wards Act which confers territorial jurisdiction to the court in the matter of Guardianship application. Two broad understanding were culled out by the High Court, first that an application in respect of the guardianship of the person of a minor is filed in the court under whose territorial jurisdiction the minor, ordinarily resides. Second, if such application relates to the property of the minor there are two fora, the applicant may choose either of the two, namely, a court under whose territorial jurisdiction the minor ordinarily resides, or under whose territorial jurisdiction the minor has property.
Further in the case of Ruhi Sahina v Syed Masidur Rehman (2018) 5 WBLR Cal 299 it was held that the for the purpose of determining the jurisdiction of the application filed under Guardians and Wards Act, 1890 the place where the minor presently residing that place should be considered. Also, in terms of language of section 9 of the Guardians and Wards Act the benefit of the child should be ensured when the custody matter heard and it is not acceptable that the words “ordinarily residing” means the matrimonial home where the couple resided last. Therefore, for the convenience and inconvenience of the minor child in the firm opinion of the court the custody matter should be transferred to a Court where the minor child resides with his mother.
In the instant case, the minor child resides with her mother in Durgapur and was a student of a school situated in Durgapur. Hence, the Court held that the learned court of Durgapur has the jurisdiction under Section 9 of the Guardians and Wards Act, 1890 to try the said miscellaneous case.