The Gujarat High Court has held that child custody proceedings under the Guardians and Wards Act, 1890, must be heard by the court having jurisdiction where the child resides. Justice Maulik J. Shelat rejected a wife’s applications seeking transfer of family proceedings from Himmatnagar to Rajkot.
Background
The wife had filed a child custody application under Sections 7 and 25 of the Guardians and Wards Act before the Family Court at Himmatnagar. Her husband had separately filed a matrimonial suit under Section 13 of the Hindu Marriage Act, 1955, before the same court.
Seeking transfer of the proceedings to Rajkot, where she lived with her parents, the wife submitted that travelling approximately 300 kilometres caused considerable hardship. She also pointed out that her maintenance and domestic violence proceedings were pending in Rajkot.
The husband opposed the transfer, arguing that the custody case itself had to remain at Himmatnagar. He offered to pay ₹1,500 towards her travel expenses for each personal appearance and submitted that she could attend hearings through video conferencing.
Justice Shelat observed that the custody application could not be transferred to Rajkot because the Family Court there lacked jurisdiction to decide the dispute. The Court emphasised that the child’s welfare remained the paramount consideration and that the competent court needed to interact with the child before deciding custody.
The judgment stated:
“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 further observed that transferring only the husband’s matrimonial suit would serve no purpose when the custody proceedings would continue at Himmatnagar.
The High Court rejected both transfer applications and requested the Family Court at Himmatnagar to hear both proceedings before the same Family Judge, preferably on a common date.
It directed that a request for video-conference attendance should be accepted unless physical presence was required for cross-examination or another necessary purpose.
The Family Court was requested to expedite both matters and decide them preferably within one year of receiving the judgment.
