Custody proceedings may be transferred to the mother’s residence where comparative hardship and child welfare favour transfer.

The applicant, an estranged wife and mother, sought transfer under Section 24 of the Code of Civil Procedure, 1908, of Civil Miscellaneous Application No. 16 of 2025 filed by the respondent-husband under Sections 7 and 9 of the Guardians and Wards Act, 1890, concerning custody of their minor son.

The proceedings were pending before the Family Court, Bhavnagar, and the applicant sought their transfer to the Family Court, Surat.

The applicant resided at Surat with the parties’ minor son and daughter, aged approximately 11 years and 4 years respectively, was dependent on her parents, and claimed that the respondent provided no financial support.

She contended that travelling approximately 370 kilometres one way from Surat to Bhavnagar, while caring for two minor children, caused substantial hardship.

She had also instituted proceedings under the Protection of Women from Domestic Violence Act, 2005, at Surat, which the respondent was required to attend.

Despite opportunities, the respondent did not file a reply, though his counsel opposed the transfer on the ground that the minor’s ordinary residence was Bhavnagar and relied on Ruchi Majoo v. Sanjeev Majoo.

Whether the proceedings under Sections 7 and 9 of the Guardians and Wards Act, 1890, pending before the Family Court, Bhavnagar, ought to be transferred to the Family Court, Surat under Section 24 of the CPC on grounds of comparative hardship and convenience.

Whether the Family Court, Surat could be said to lack territorial jurisdiction merely because the respondent alleged that the minor’s ordinary residence was Bhavnagar.

Whether the respondent’s failure to file a reply affected the Court’s consideration of the applicant’s uncontroverted averments.

The Court applied Section 24 of the Code of Civil Procedure, 1908, which empowers the High Court to transfer proceedings where such transfer is expedient in the interests of justice, including on considerations of comparative hardship and convenience.

It considered Sections 7 and 9 of the Guardians and Wards Act, 1890, under which guardianship and custody proceedings are instituted and jurisdiction is ordinarily connected with the minor’s ordinary residence.

The Court held that the question of a minor’s ordinary residence is not a pure question of law but involves questions of fact and law.

The welfare of the child remains the paramount consideration in custody matters.

The Court distinguished Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479, holding that the decision did not establish that the Family Court, Surat had no jurisdiction in the present transfer proceedings.

It also referred to Smita Singh v. Kumar Sanjay, AIR 2002 SC 396, and N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, 2022 SCC OnLine SC 1199, on the principles governing transfer of matrimonial and connected proceedings.

Uncontroverted averments in an original proceeding may ordinarily be accepted where no legal prohibition prevents such consideration.

The Court found that the applicant was residing at Surat with both minor children, had primary responsibility for their care, lacked financial support from the respondent, and would face considerable difficulty travelling approximately 370 kilometres each way to Bhavnagar.

The respondent was already required to attend the applicant’s domestic-violence and maintenance proceedings at Surat, making the comparative hardship substantially greater for the applicant if the custody proceedings remained at Bhavnagar.

Although the respondent argued that Bhavnagar was the minor’s ordinary residence, the Court held that this was a mixed question of fact and law and that the minor was presently in the custody of the mother at Surat.

The Court further observed that the respondent had not filed a reply disputing the applicant’s factual assertions, despite repeated opportunities.

Accordingly, transfer was considered expedient in the interests of justice and consistent with the welfare of the children.

The Court clarified that the respondent could raise the jurisdictional objection before the Family Court, Surat, which would decide it in accordance with law without being influenced by the observations in the transfer order.

The Rule was made absolute.

The respondent was given liberty to seek participation through video-conferencing or online mode, subject to the concerned Court requiring his physical presence at any particular stage.

The question of territorial jurisdiction was expressly left open for determination by the Family Court, Surat.