1 08.4.13 C.O. 2481 Of 2012 Sandip ... vs Mili Ghosh Mr. Anirban Roy Ms. ...

on 8 April, 2013

Kolkata High Court (Appellete Side)

Kolkata High Court (Appellete Side)
1 08.4.13 C.O. 2481 Of 2012 Sandip ... vs Mili Ghosh Mr. Anirban Roy Ms. ... on 8 April, 2013
Author: Harish Tandon
1
08.4.13 C.O. 2481 of 2012
Sandip Ghosh
-vsMili Ghosh
Mr. Anirban Roy
Ms. Micky Chowdhury ... For Petitioner
Mr. Tarun Kanti Halder
Mr. G.S. Kaderi ... For Opposite Party
This revisional application is directed against Order dated June 1, 2012, passed by the District Judge, Barasat,
District North 24 Parganas, in Miscellaneous ac Case No. 4 of 2012, by which an application for transfer of
the said proceeding is allowed.
After falling apart from their mutual trust, the parties have taken a shelter under the law by initiating several
proceedings.
The husband/petitioner filed the Matrimonial Suit No. 150 of 2011 before the 2nd Court of the Additional
District Judge, Barasat praying for dissolution of marriage by divorce under Section 13 of the Hindu Marriage
Act, 1955.
In the said proceeding, the wife/opposite party filed an application under Section 24 of the Hindu Marriage
Act, 1955 praying for alimony pendente lite as well as litigation expenses.
The aforesaid proceedings are still pending. The husband/petitioner thereafter filed an application under
Section 10 of the Guardians and Wards Act, 1890 for an order appointing him as the guardian of the minor
children, being the father and the natural guardian.
From the said application it appears that the two children, namely a daughter and a son, are born of the
matrimonial wedlock and are in the custody of the husband/petitioner.
2
The wife/opposite party took out an application in the said proceeding, originated under the Guardians and
Wards Act, 1890, before the District Judge, praying for the transfer of the said proceeding from Barasat Court
to Bongaon Court on the allegation that threat is being made to her life from the husband/petitioner and the
same has been duly reported before the police station.
The tenet of the said application, as would appear from the allegations made therein, is that if the wife is
allowed to attend the said proceedings in the Court of Barasat, where the husband/petitioner has influence
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1 08.4.13 C.O. 2481 Of 2012 Sandip ... vs Mili Ghosh Mr. Anirban Roy Ms. ... on 8 April, 2013

because of his avocation as a promoter, there is risk on her life.

It appears from the impugned order that the parties restricted their arguments to the provisions of Section 4A
of the Guardian and Wards Act, 1890 which deals with the power to confer jurisdiction on subordinate
judicial officers and to transfer the proceedings to such officers.
Sub-section (1) of Section 4A of the said Act provides that the High Court may, by general or special order,
empower any officer, exercising the original civil jurisdiction subordinate, to the District Court or authorise
the District Court to empower any such officer subordinate to it to dispose of any proceeding under the Act or
transfer to such officers under the provisions of the said Act.
The trial Court relied upon a judgment of this Court rendered in this regard that Additional District Judge is
not subordinate to District Judge and, therefore, is competent to consider the applications under the Guardian
and Wards Act, 1890 and on such score alone, allowed the application.
There is a distinction between existence power of the Court to pass an order for transfer of a 3
proceeding from one Court to another than to transfer the proceeding from one Court to another upon
considering the fact involved therein. Mere existence of power to transfer does not mean that whenever an
application for transfer is made such power is to be exercised mechanically and in a routine manner. Even if
the power to transfer exits upon the District Judge but such power should be exercised on consideration of
merit of each case.
From perusal of the impugned order, this Court does not find that there is any whisper with regard to the merit
of the said application and the entire determination is proceeded on the scope and power conferred upon the
District Judge under Section 4A of the said Act.
The District Judge, while discharging his judicial functions, must do so on the facts of each case and the
reasons, for which such determination is reached at, must reflect in the order.
This Court finds that there is lack of reasoning in the impugned order, so far as the merit of the application is
concerned, and, therefore, feels that the matter should be reconsidered by the Court below. Purely on the
above consideration the impugned order is set aside.
The District Judge, Barasat is directed to reconsider the said application on merit and shall dispose of the
same by passing a reasoned order in accordance with law.
It is expected that the Court below would make all endeavour to dispose of the said application within four
weeks from the date of communication of this order.
Needless to mention that this Court had no occasion to go into the merit of the said application and this order
shall not have any persuasive effect upon the 4
Court below at the time of reconsideration of the said application on merit.
The revisional application is disposed of. However, there shall be no order as to costs. Urgent photostat
certified copy be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.)

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