Court rejects transfer of custody and matrimonial cases to Rajkot, emphasizing child welfare and directing coordinated hearings with travel expense provisions and video conferencing
In a significant ruling on October 16, 2026, the Gujarat High Court, presided by Justice Maulik J. Shelat, dismissed the transfer applications filed by Ratiben seeking to move child custody and matrimonial proceedings from the Family Court in Himmatnagar to the Family Court in Rajkot. The judgment reinforces the legal principle that custody matters must be adjudicated by the court within whose territorial jurisdiction the children reside, thereby prioritizing the welfare of the child above procedural convenience.
The dispute involves Ratiben (applicant), wife of Vishnubhai @ Vastabhai Thobhanbhai Banbhava (opponent), who filed custody proceedings under Sections 7 and 25 of the Guardians and Wards Act, 1890 before the Family Court, Himmatnagar. Simultaneously, the husband initiated a matrimonial suit under Section 13 of the Hindu Marriage Act, 1955, also before the same Family Court. Ratiben, residing in Rajkot, sought to transfer both cases to the Family Court in Rajkot citing hardship due to distance (approximately 300 kilometers) and inconvenience.
Justice Shelat examined the submissions from both parties. Ms. Dipmala S. Desai, advocate for Ratiben, emphasized her client's illiteracy, the physical distance from her children, and her ongoing maintenance and domestic violence proceedings pending in Rajkot. Conversely, Mr. Manish S. Shah, advocate for the opponent, argued that since Ratiben herself initiated the custody proceedings in Himmatnagar, the jurisdiction was proper and transfer to Rajkot was legally impermissible. He also underscored that the applicant could attend hearings via video conferencing and that the husband was willing to bear reasonable travel expenses if personal attendance was necessary.
The Court held that the Guardians and Wards Act mandates custody applications to be filed in the court within whose jurisdiction the children reside, affirming that the Family Court, Himmatnagar, had exclusive jurisdiction over the custody dispute. The Court cited Section 24(5) of the Civil Procedure Code, 1908, to state that transferring custody proceedings to a court without jurisdiction would be improper and detrimental to the child's welfare, which is paramount.
Furthermore, the Court declined to transfer the matrimonial suit filed by the husband from Himmatnagar to Rajkot, reasoning that since the custody case would remain at Himmatnagar, moving the matrimonial suit would serve no purpose and could complicate proceedings. Instead, the Court directed that both the custody and matrimonial cases be heard by the same Family Judge in Himmatnagar on common dates to facilitate the applicant's attendance.
Recognizing the applicant's hardship, the Court ordered that the husband shall pay Rs. 1,500 per occasion as travel expenses for the wife's personal attendance. The Court also permitted the wife to request attendance via video conference, which shall be granted unless her physical presence is critical for cross-examination or other essential proceedings.
Finally, the Court urged the Family Court, Himmatnagar, to expedite both matters and preferably conclude them within one year from the date of the order, emphasizing cooperation between parties.
This judgment provides clarity on jurisdictional issues in family law, balancing procedural convenience with the substantive welfare of children. It also exemplifies judicial pragmatism by allowing technological means like video conferencing to ease litigants' burdens.
Bottom Line:
Transfer of matrimonial and child custody proceedings - Where wife herself filed custody proceedings under Guardians and Wards Act before Family Court having jurisdiction where children reside, such proceedings cannot be transferred to another Court lacking jurisdiction - In such circumstances, no purpose would be served in transferring husband's matrimonial suit pending before same Family Court - Court may instead direct both matters to be heard by same Family Court on common dates, permit video conference appearance and award travelling expenses.
Statutory provision(s):
Civil Procedure Code, 1908 Section 24(5), Guardians and Wards Act, 1890 Sections 7 and 25, Hindu Marriage Act, 1955 Section 13
