Child Custody Case Must Be Heard Where Child Resides: Gujarat High Court Rejects Wife’s Transfer Plea Under Guardians & Wards Act

GUJARAT: The Gujarat High Court has rejected a woman's plea to transfer child-custody and divorce proceedings from Himmatnagar to Rajkot, holding that child-custody cases under the Guardians and Wards Act, 1890 must be heard by the court with jurisdiction over the place where the children ordinarily reside.

Justice Maulik J. Shelat, in a judgment dated 16 October 2026, emphasised that the welfare of children is the paramount consideration in custody disputes.

The case involved a separated husband and wife whose children lived with their father in Himmatnagar, while the mother lived with her parents in Rajkot.

The woman had filed a child custody application under Sections 7 and 25 of the Guardians and Wards Act, 1890, before the Family Court, Himmatnagar. The husband had also filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, before the same court.

The woman approached the Gujarat High Court under Section 24 CPC, seeking to transfer both proceedings to the Family Court in Rajkot.

Her counsel argued that she was illiterate and had to travel nearly 300 kilometres from Rajkot to Himmatnagar for court hearings, causing considerable hardship.

The woman also informed the Court that she had initiated maintenance proceedings under Section 125 CrPC, a domestic violence complaint, and an FIR under Section 498A IPC against her husband in Rajkot.

Opposing the transfer, the husband's counsel argued that the woman herself had filed the custody proceedings in Himmatnagar and was already required to attend hearings there.

He further submitted that she could attend hearings through video conferencing and that the husband was willing to pay reasonable travel expenses whenever her physical presence was necessary.

After hearing both parties, the Gujarat High Court noted that the children were residing with their father in Himmatnagar, bringing the custody proceedings within the jurisdiction of the Family Court there.

The Court held that it could not transfer the child custody case to Rajkot, as the Family Court there lacked jurisdiction to decide the dispute.

Emphasising the importance of child welfare in custody disputes, the Court observed:

"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."

The High Court further explained that the court deciding child custody must be able to interact with the children before passing appropriate orders.

Referring to Section 24(5) CPC, the Court declined to transfer the custody proceedings to Rajkot.

Since the woman would still have to attend the custody case in Himmatnagar, the Court found no practical reason to separately transfer the husband's divorce proceedings to Rajkot.

During the hearing, the husband's counsel offered to pay ₹1,500 towards the woman's travel expenses whenever she personally attended proceedings in Himmatnagar. The High Court considered the amount reasonable.

The Court directed that CMA-DC No. 7 of 2024, concerning child custody, and Family Suit No. 102 of 2024, concerning divorce, be heard and decided by the same Family Court in Himmatnagar.

It also requested the Family Court to provide common hearing dates for both proceedings to reduce unnecessary travel.

The woman was allowed to request attendance through video conferencing, which the Family Court must permit unless her physical presence was necessary for cross-examination or other reasons.

Ultimately, the Gujarat High Court dismissed both transfer applications, allowing the child custody and divorce proceedings to continue in Himmatnagar. The Court also requested the Family Court to decide both cases as early as possible, preferably within one year of receiving the order.

EXPLANATORY TABLE OF LAWS AND SECTIONS

CASE DETAILS

KEY TAKEAWAYS

• Father's Custody Rights Matter: The Court recognised that the children were residing with their father while deciding jurisdiction.
• Wife's Transfer Plea Rejected: The mother's travel difficulties could not justify shifting the custody case to Rajkot.
• Child Welfare Comes First: The Court prioritised children's welfare over the parents' convenience.
• Husband's Divorce Case Stays: Both custody and divorce proceedings will continue before the Himmatnagar Family Court.
• Fairness For Fathers Matters Too: Custody disputes must follow legal jurisdiction, not merely one parent's convenience.