In a significant ruling on transfer petitions in matrimonial disputes, the Punjab and Haryana High Court has held that the welfare of the child and the convenience of the mother must prevail when deciding applications for transfer of proceedings. The Court emphasized that while the custody of the child is a relevant factor, it is not an absolute thumb rule, and other circumstances such as the mother's financial dependence and the distance between courts must also be considered.
Background & Facts
The Dispute
The applicant, Roohi Babbar, sought the transfer of a guardianship petition (GW-19-2022) from the Family Court, Jalandhar, to SAS Nagar, Mohali. The parties, married since 2014 and separated for six years, have an 11-year-old son in the custody of the respondent-husband, Suresh Babbar. The applicant, a post-graduate with a B.Ed. qualification, is financially dependent and has no independent source of income.
Procedural History
The dispute has spawned multiple litigations:
- Guardianship Petition: Filed by the applicant at Jalandhar (GW-19-2022)
- Maintenance Petition: Under Section 125 Cr.P.C., pending at SAS Nagar, Mohali
- Domestic Violence Petition: Under Section 12 of the Protection of Women from Domestic Violence Act, pending at Jalandhar
- Criminal Trial: FIR No. 29/2021 under Sections 406 and 498-A IPC, pending at Jalandhar
- Transfer Applications: CRM-M-35066-2025 and CRM-M-35074-2025 for transferring the domestic violence petition and criminal trial to Mohali
The applicant, residing in SAS Nagar, travels 142 km to Jalandhar twice weekly to exercise visitation rights granted by the Court. Her aged parents are unable to accompany her, exacerbating her difficulties.
Positions Before This Court
The applicant argued that:
- She lacks financial means to travel frequently
- The respondent has withdrawn a divorce petition earlier transferred to Mohali (TA-222-2022)
- The child’s welfare is better served if proceedings are closer to her residence
The respondent contended that:
- The child has been in his custody for six years
- The applicant’s guardianship petition and domestic violence petition are already pending in Jalandhar
- Consolidating proceedings in Jalandhar would minimize inconvenience
The Legal Issue
The central question was whether the guardianship proceedings should be transferred from Jalandhar to Mohali, considering:
- The welfare of the child in the custody of the respondent
- The convenience of the mother, who lacks financial independence
- The distance between the courts and its impact on visitation rights
Arguments Presented
For the Applicant
- The applicant’s financial dependence and lack of support make frequent travel burdensome
- The child’s interaction with the mother is hindered by the distance
- Earlier transfer of a divorce petition (TA-222-2022) demonstrates the feasibility of transfer
For the Respondent
- The child’s long-term custody with the respondent favors retaining proceedings in Jalandhar
- Consolidation of multiple litigations in Jalandhar would serve judicial efficiency
- The applicant’s visitation rights are already being exercised without hindrance
The Court's Analysis
The Court examined the competing interests of the parties and the best interests of the child. While acknowledging that the child’s custody with the respondent is a relevant factor, it held that it is not a thumb rule for denying transfer. The Court observed:
"When there is a child born from the estranged marriage, it is essential to take note of, as to which spouse is having the custody of the child and also about the capacity of the said spouse to raise the child. However, the same is not a thumb rule. Various other factors also ought to be taken into consideration."
The Court noted the arduous journey the applicant undertakes twice weekly to meet her child, compounded by her financial dependence and lack of support. It also considered that:
- The respondent has joined proceedings in the maintenance petition at SAS Nagar
- The child, being 11 years old, does not require constant parental supervision
- The applicant’s transfer applications for other proceedings are pending before a coordinate bench
Balancing these factors, the Court concluded that the convenience of the mother and the practical difficulties she faces outweigh the respondent’s objections.
The Verdict
The Punjab and Haryana High Court allowed the transfer application. The guardianship petition (GW-19-2022) stands transferred from the Family Court, Jalandhar, to the Family Court, SAS Nagar, Mohali. The parties are directed to appear before the transferee court within one month. The Court also granted the respondent the option to seek appearance through virtual mode, subject to the transferee court’s discretion.
What This Means For Similar Cases
Welfare of the Child Is Not an Absolute Rule
- Courts must consider multiple factors beyond custody, including the financial capacity and convenience of the non-custodial parent
- The distance between courts and its impact on visitation rights are relevant considerations
Financial Dependence of the Applicant Is a Key Factor
- Lack of independent income can tilt the balance in favor of transfer, especially when the applicant must travel frequently
- Practitioners should highlight practical hardships faced by financially dependent spouses in transfer petitions
Virtual Appearance as a Mitigating Measure
- Courts may allow virtual appearance for the custodial parent to minimize inconvenience
- This option is particularly useful in long-distance transfers where physical presence may be burdensome
