Child-Custody Case Cannot Be Transferred To Family Court Without Jurisdiction Over Children’s Place Of Residence: Gujarat High Court

The Court was hearing two applications under Section 24 of the CPC seeking transfer of child-custody proceedings and a matrimonial suit from the Family Court, Himmatnagar, to the Family Court, Rajkot.

A Bench of Justice Maulik J. Shelat observed: “It is not disputed by Ms. Desai, learned advocate for the applicant, as per the provisions of the Act, 1890, the applications seeking custody is required to be filed before the Court where the children are residing, i.e., Family Court, Himmatnagar.”

The Court added: “If such would be the case, according to my view, the proceeding instituted by the applicant under the provisions of the Act, 1890 cannot be transferred from Family Court, Himmatnagar to Family Court, Rajkot, which has no jurisdiction to decide the lis between the parties. Apart from the aforesaid dispute between the parties, so far as the welfare of child is concerned, it is always a paramount consideration for any Court.”

Advocate Dipmala S. Desai appeared for the applicant. Advocate Manish S. Shah appeared for the opponent.

Background

The applicant-wife had instituted proceedings under Sections 7 and 25 of the Guardians and Wards Act before the Family Court, Himmatnagar, seeking custody of the children, who were residing with their father within that court’s jurisdiction.

The opponent-husband had separately instituted a matrimonial suit under Section 13 of the Hindu Marriage Act, 1955, before the same Family Court.

The applicant, who was residing with her parents in Rajkot, sought transfer of both proceedings to Rajkot. She submitted that the distance of approximately 300 kilometres between Rajkot and Himmatnagar caused her hardship and inconvenience.

She also submitted that maintenance proceedings, a domestic-violence complaint and a criminal case under Section 498A IPC were pending against the opponent before the competent courts at Rajkot.

The opponent opposed the transfer applications. He submitted that the applicant had herself instituted the custody proceedings at Himmatnagar, that she could attend the proceedings by video conference and that he was willing to pay reasonable travelling expenses whenever her personal presence was required.

Court’s Observations

Custody Case Could Not Be Transferred To Court Lacking Jurisdiction

The Court observed that the applicant did not dispute that an application seeking custody under the Guardians and Wards Act had to be filed before the court within whose jurisdiction the children resided.

The Court held that the custody proceedings could not be transferred to the Family Court at Rajkot because that court lacked jurisdiction to decide the dispute.

The Bench further stated that Section 24(5) CPC prevented it from transferring the proceedings to a court that lacked jurisdiction.

Court Where Children Reside Better Placed To Interact With Them

The Court observed that the child’s welfare was always the paramount consideration in a custody dispute. It further noted that the court deciding the application might be required to interact with the children before passing an order.

The Bench explained: “Since the application was instituted by the applicant under the Act, 1890 and to adjudicate such application, the Court concerned who has jurisdiction is required to interact with the child before passing any order, it is more desirable that it should be heard and adjudicated by the Court within whose jurisdiction the children are residing, i.e., Family Court, Himmatnagar.”

The Court consequently held that the custody proceedings should remain before the Family Court, Himmatnagar.

Transferring Matrimonial Suit Alone Would Serve No Purpose

The Court observed that the applicant would have to attend the custody proceedings at Himmatnagar because they could not be transferred to Rajkot. It therefore found that no purpose would be served by transferring only the matrimonial suit instituted by the husband.

The Court instead directed that both the custody application and matrimonial suit should be heard by the same Family Court at Himmatnagar. It requested the Principal Judge to ensure that both proceedings were assigned to one Family Court and listed on a common date.

Travelling Expenses And Video-Conference Facility

The Court took note of the husband’s statement that he would pay ₹1,500 towards the applicant’s travelling expenses whenever her personal attendance was required at Himmatnagar. The Bench found that amount reasonable for meeting her travel expenses.

The Court further directed: “It is open for the applicant to request the Court concerned to allow her to attend both the proceedings through video conference. As and when such request will be made, the same shall be accepted by the Family Court concerned, unless her physical presence is required for her cross-examination or otherwise.”

The Court thus permitted virtual attendance while preserving the Family Court’s authority to require the applicant’s physical presence for cross-examination or another necessary purpose.

Conclusion

The High Court rejected both transfer applications and retained the custody proceedings and matrimonial suit before the Family Court, Himmatnagar.

The Court directed that both cases be heard by the same Family Court and listed on common dates. It permitted the applicant to attend virtually unless her physical presence was required and took note of the opponent’s undertaking to pay ₹1,500 towards travel expenses on each occasion when she personally attended.

Subject to the parties’ cooperation, the Family Court was requested to decide both proceedings as early as possible, preferably within one year from receiving the order. The rule was discharged with no order as to costs.

Cause Title: XX v. YY

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