Justice N.J. Jamadar, Bombay High Court
Not Surreptitious Removal Of Minor From Father’s Custody: Bombay High Court Allows Plea Of Deceased Woman’s Sister For Transfer Of Guardianship Case To Family Court
|The Bombay High Court said that the residence of the minor with her maternal aunt at Nashik is not a casual or fleeting residence of the minor.
The Bombay High Court allowed an Application of a deceased woman’s sister seeking transfer of a Guardian Ward Case from the Principal District Judge, Chandrapur to the Family Court, Nashik.
The Court was dealing with Applications preferred under Section 24 of the Code of Civil Procedure, 1908 for transfer of Applications for Guardianship filed under the Guardians and Wards Act, 1890 (GWA).
A Single Bench of Justice N.J. Jamadar observed, “With the unfortunate death of Monali her parents and brother in the vehicular accident in which the minor was also injured, Sonali, the Applicant came in the frame. If viewed through the prism of the bitter matrimonial discord between the mother and father of the minor and the fact that since a year prior to the death of Monali, minor had not been residing with the father, the act of Sonali in taking the responsibility of the minor and bringing her to Nashik, where she had been residing, cannot be termed as surreptitious removal of the minor from the custody of the father.”
The Bench further said that the residence of the minor with her maternal aunt at Nashik (who is probably the only relative from the side of her mother willing to take care of the minor) is not a casual or fleeting residence of the minor.
Advocate Abhijeet Kandarkar appeared for the Applicant (maternal aunt) while Advocate Daksha Punghera appeared for the Respondent (father).
Case Background
The Applicant was the sister of the deceased wife of the Respondent. The marriage of the deceased was solemnized with the Respondent in 2016 and a daughter was born to them in 2017. However, their marital life was afflicted with discord. The deceased had instituted a number of proceedings against the Respondent and subsequently, there was an effort at amicable resolution of the matrimonial dispute. The deceased withdrew the proceedings which she had instituted against the Respondent, however, the settlement proved short lived. Thereafter, she took shelter along with her minor daughter at her parental home. In 2022, she again filed a proceeding under the Protection of Women from Domestic Violence Act, 2005 (DV Act) before the Magistrate.
In 2023, the deceased, her minor daughter, her parents, and her brother met a vehicular accident at Balaghat, Madhya Pradesh. Everyone died in the said accident except for the minor daughter, who survived. The Applicant (maternal aunt) who resided at Nashik, took the custody of the minor and then filed a Petition before the Family Court for Guardianship under Sections 7 and 8 of GWA. The Respondent-father, in turn, filed an Application before the Principal District Judge, seeking custody of her daughter, asserting that he was her natural guardian. The Applicant filed an Application before the High Court seeking transfer of the Respondent’s case to the Family Court and the Respondent also filed an Application seeking transfer of the Applicant’s Petition from the Family Court to the Principal District Judge.
Reasoning
The High Court in the above regard, noted, “There is material on record to show that the minor has been enrolled in a school at Nashik. Since the death of her mother, the minor has been under the care and custody of Sonali.”
The Court was of the opinion that the residence of the minor at Nashik with her maternal aunt, brought about by the sheer weight of the grave and extraordinary circumstances, can only be said to be ordinary residence.
“The distance between Nashik and Chandrapur is incontrovertibly prohibitive. In ordinary circumstances, such distance coupled with the socio-economic consideration would tilt the scale convenience in favour of a woman. In the case at hand, there is also an element of inconvenience and trauma likely to be caused to the minor”, it added.
Moreover, the Court said that in the Petitions for guardianship and custody, the District Court may require the presence of the minor before the Court on more than one occasion and, therefore, the inconvenience to the minor also deserves to be taken into account.
“In addition, the visit of Sonali to Chandrapur to attend these proceedings, while the minor remains at Nashik, is also likely to cause inconvenience to the minor having regard to the long distance between Nashik and Chandrapur and the minor’s requirements of care and support”, it also noted.
The Court, therefore, concluded that the scale of convenience tilts in favour of the Applicant.
“The Guardian Ward Case No. 119 of 2023 stands transferred from the Court of Principal District Judge, Chandrapur to the Family Court at Nashik”, it further directed.
Accordingly, the High Court allowed the Applicant’s Application and rejected that of the Respondent.
Cause Title- Sonali Trushant Walde v. Dhananjay Pundlik Choudhari (Neutral Citation: 2025:BHC-AS:1754)
Appearance:
Applicant: Advocate Abhijeet Kandarkar
Respondent: Advocates Daksha Punghera, Karan Gajra, Mohini Rehpade, Vijay Singh, Digvijay Kachare, and Sanchita Sontakke.