Wife’s Custody Case Must Stay Where Children Live, So Gujarat HC Keeps Both Family Cases In Himmatnagar

The High Court heard the two transfer applications together

The wife sought transfer under Section 24 of the Code of Civil Procedure, 1908 (CPC), from the Family Court, Himmatnagar, to the Family Court, Rajkot, of proceedings concerning child custody and a matrimonial suit.

She resided with her parents in Rajkot and relied on the distance, hardship in attending court, and other proceedings pending in Rajkot.

The husband opposed transfer, noting that the wife had herself filed the custody proceeding at Himmatnagar, where the children resided; he also offered to pay her travel expenses and stated that video-conferencing was available

The Court considered Section 24 CPC, which empowers the High Court to transfer or withdraw proceedings, and Section 24(5) CPC, which concerns transfer where the court in which a suit or proceeding is instituted lacks jurisdiction.

It also considered Sections 7 and 25 of the Guardians and Wards Act, 1890, under which the wife had sought relief concerning the children.

The Court proceeded on the basis, undisputed before it, that the custody application was required to be brought before the court where the children resided.

It further treated the child’s welfare as paramount and considered the desirability of the court deciding custody matters interacting with the child.

The Court found that the wife’s custody proceeding was properly before the Family Court, Himmatnagar, because the children resided within its jurisdiction.

Transferring that proceeding to Rajkot was therefore not appropriate, particularly given the Court’s view that the Rajkot court lacked jurisdiction and that the court dealing with custody should be able to interact with the children.

Since the wife would still need to attend the custody proceeding at Himmatnagar, the Court considered that transferring the husband’s matrimonial suit alone would serve no purpose.

It instead favoured hearing both matters before the same Family Court, on common dates, while permitting video-conferencing where physical presence was not required.

It requested that both proceedings be heard and decided by one Family Court at Himmatnagar, preferably on common dates, and be expedited—preferably within one year of receipt of the order.

The wife may seek to attend by video-conference, and that request should be accepted unless her physical presence is required for cross-examination or otherwise.

The husband’s undertaking to pay Rs. 1,500 in travel expenses for each occasion on which she personally attends was recorded.