The Bombay High Court has held that in custody disputes arising from matrimonial breakdown, the convenience of the mother and the welfare of the child are paramount considerations justifying transfer of proceedings under Section 24 of the Code of Civil Procedure. The Court transferred a custody petition from Sangli to Nanded, recognizing the mother’s inability to travel 400 kilometers regularly and the pendency of related proceedings in Nanded.
The Verdict
The Applicant wife won. The Bombay High Court transferred the custody petition pending before the Family Court, Sangli, to the Family Court, Nanded, under Section 24 of the Code of Civil Procedure. The Court held that the mother’s practical hardship, the child’s welfare, and the pendency of related proceedings in Nanded justified the transfer. The Respondent was permitted to appear via video conference except during witness examination.
Background & Facts
The Applicant, Supranjana Sanjay Rathod, and the Respondent, Sanjay Shankar Rathod, were married in 2017 under Hindu rites. Their son, Bheem, was born in May 2022. After initial cohabitation in Pune and later Miraj, the Applicant alleges she was forcibly evicted from the matrimonial home on 31 December 2022 and returned to her parental residence in Nanded. On 13 November 2023, the Respondent, accompanied by his mother, took the child from the Applicant’s parental home without consent.
The Applicant filed a complaint with the Nanded Police on 18 December 2023 and subsequently initiated proceedings in multiple forums. She filed a custody petition under the Guardian and Wards Act before the Family Court, Sangli, where the child was allegedly residing with the Respondent. Concurrently, she filed a petition under the Protection of Women from Domestic Violence Act, 2005, in Nanded, which resulted in an interim custody order in her favor. The Respondent challenged this order in a criminal appeal, which was partially disposed of with a direction for supervised meeting.
The Respondent also filed a restitution of conjugal rights petition under Section 9 of the Hindu Marriage Act in Nanded and a civil suit in Pune over property rights. The Applicant, residing in Nanded with her parents, faces significant logistical and safety challenges in attending hearings in Sangli, located approximately 400 kilometers away.
The Legal Issue
The central question was whether a Family Court may transfer a custody petition under Section 24 of the Code of Civil Procedure when the child is allegedly residing with one parent, but the other parent - particularly the mother - faces severe hardship in litigating at the jurisdictionally proper forum, and multiple related proceedings are pending elsewhere.
Arguments Presented
For the Petitioner
The Applicant’s counsel argued that Section 24 CPC empowers the High Court to transfer proceedings in the interest of justice, convenience, and welfare of the child. Reliance was placed on Supreme Court and Punjab & Haryana High Court precedents, including Sapna Kumari v. Rahul Kumar and Harjeet Kaur v. Jatinder Singh, which prioritized the mother’s practical difficulties and the child’s best interests over rigid territorial jurisdiction. The counsel emphasized that the child was forcibly removed from Nanded and that the mother’s ability to participate meaningfully in proceedings was compromised by distance. The pendency of the Domestic Violence and restitution petitions in Nanded further justified consolidation.
For the Respondent
The Respondent’s counsel contended that under Section 9 of the Guardian and Wards Act, jurisdiction lies exclusively with the court where the minor ordinarily resides - in this case, Sangli, where the child was allegedly living with the father. He cited Pooja Bahadur v. Uday Bahadur to argue that the child’s physical location, not the mother’s residence, determines jurisdiction. He further argued that transferring the petition would undermine the statutory framework and set a precedent that could encourage forum shopping.
The Court's Analysis
The Court acknowledged the general rule under Section 9 of the Guardian and Wards Act that jurisdiction vests in the court where the minor ordinarily resides. However, it held that this principle is not absolute and must yield to the overriding considerations of justice, convenience, and the child’s welfare under Section 24 CPC.
"While Section 9 of the Guardian and Wards Act provides the initial jurisdictional anchor, Section 24 of the CPC confers a wider, equitable power to transfer proceedings where the ends of justice demand it, particularly in sensitive matters involving children and vulnerable parties."
The Court distinguished the Respondent’s reliance on Pooja Bahadur, noting that in that case, the mother had not been forcibly separated from the child, nor were multiple proceedings pending in her place of residence. Here, the child was allegedly abducted from Nanded, and the mother was effectively barred from access. The Court further noted that the Respondent himself was actively litigating two other matters in Nanded, making it the natural hub for all related disputes.
The Court also relied on its own prior decision in Shilpa Nikhil Sharma, which had transferred custody proceedings under similar circumstances. It rejected the notion that the child’s physical location alone dictates jurisdiction when that location was secured through alleged unlawful means. The Court emphasized that "ordinarily resides" must be interpreted in light of the child’s actual living conditions and the conduct of the parents.
The Court further held that the mother’s safety concerns and the logistical burden of traveling 400 kilometers regularly were not mere inconveniences but structural barriers to effective participation in litigation, violating the spirit of Article 21 and the child’s right to a fair and accessible adjudication process.
What This Means For Similar Cases
This judgment significantly expands the scope of Section 24 CPC in custody disputes. Practitioners can now confidently invoke transfer petitions when a parent - especially a mother - is subjected to undue hardship due to distance, especially if the child was removed from her custody without legal authority. The ruling establishes that jurisdiction under the Guardian and Wards Act is not a rigid bar to transfer when equity demands otherwise.
Future litigants should document all logistical barriers, including travel costs, safety risks, and the pendency of related proceedings in the proposed transferee forum. Courts are now more likely to consolidate matters in the forum where the aggrieved parent resides, particularly if the child’s removal was contested or unlawful.
However, the judgment does not eliminate the importance of the child’s ordinary residence. It merely clarifies that unlawful removal or coercive separation cannot be used to lock proceedings into an inconvenient jurisdiction. The burden remains on the petitioner to demonstrate genuine hardship and a clear nexus between the transfer and the child’s welfare.
The Court’s allowance of video conferencing for the Respondent - except during witness examination - also sets a useful precedent for balancing accessibility with evidentiary integrity in family disputes.
