The Punjab and Haryana High Court has held that the welfare of a minor child, coupled with the mother’s financial dependency and the pendency of a maintenance petition in the same jurisdiction, justifies the transfer of a restitution of conjugal rights petition under Section 9 of the Hindu Marriage Act. This decision reinforces the principle that forum selection in matrimonial disputes must prioritize the child’s best interests and practical access to justice.
Background & Facts
The Dispute
The applicant-wife, Gurpreet Kaur, filed an application seeking transfer of a petition under Section 9 of the Hindu Marriage Act, 1955 (HMA/89/2025), filed by her husband, respondent Varinder Singh, pending before the Family Court, Jalandhar. She sought transfer to the Family Court, Faridabad, where she and their minor daughter currently reside.
Key Facts
- The marriage between the parties took place on 14.01.2013
- A daughter was born from the marriage and is currently 11.5 years old
- The child is in the sole care and custody of the applicant-wife
- The parties have been living separately due to matrimonial discord
- The applicant has no independent source of income and is financially dependent on her brother, as her father is deceased
- The applicant has filed a petition under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for maintenance, pending in Faridabad
- The respondent is actively appearing in the BNSS proceeding in Faridabad
- The distance between Jalandhar and Faridabad is approximately 450 kilometers
- The applicant is unable to travel regularly to Jalandhar for court proceedings due to financial and custodial constraints
Procedural History
- 14.01.2013: Marriage solemnized
- 2023: Matrimonial dispute arises; parties separate
- 2023: Applicant files petition under Section 144 BNSS in Faridabad
- 2025: Respondent files petition under Section 9 HMA in Family Court, Jalandhar (HMA/89/2025)
- 2026: Applicant files transfer application before Punjab and Haryana High Court (TA-781-2025)
- 02.04.2026: High Court hears arguments and delivers judgment
The Parties' Positions
For the Applicant
- The minor daughter, aged 11.5 years, requires continuous maternal care
- The applicant has no income and cannot afford frequent travel to Jalandhar
- A maintenance petition under BNSS is already pending in Faridabad, making it the most logical forum for all related proceedings
- The respondent is already participating in litigation in Faridabad, indicating his submission to that jurisdiction
For the Respondent
- The applicant has not come to court with clean hands, as the marital breakdown was caused by her wrongful conduct
- The respondent seeks reconciliation and has filed the Section 9 petition to revive the marriage
- The matter was previously referred to the Mediation and Conciliation Centre of this Court, which reported no settlement
- Transfer would prejudice his right to pursue restitution in the forum where he initiated proceedings
Relief Sought
The applicant sought transfer of the Section 9 HMA petition from the Family Court, Jalandhar, to the Family Court, Faridabad, to ensure the child’s welfare and avoid multiplicity of proceedings.
The Legal Issue
The central question was whether the welfare of a minor child, combined with the mother’s financial vulnerability and the pendency of a related maintenance proceeding in another jurisdiction, justifies the transfer of a restitution of conjugal rights petition under Section 9 of the Hindu Marriage Act.
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel emphasized that the child’s best interests are paramount under the doctrine of parens patriae and the Juvenile Justice (Care and Protection of Children) Act, 2015. The applicant’s lack of income and dependence on her brother render her incapable of sustaining the burden of litigating 450 km away. The pending BNSS maintenance petition in Faridabad creates a natural nexus with that forum. The respondent’s active participation in Faridabad proceedings further supports jurisdictional convenience.
For the Respondent/State
The respondent’s counsel contended that the applicant’s conduct precipitated the marital breakdown and that the Section 9 petition was filed in good faith to restore the marriage. He argued that the mediation report showed no settlement, and transferring the petition would undermine the respondent’s right to litigate in the forum of his choice. He also questioned the applicant’s credibility, citing lack of clean hands.
The Court's Analysis
The Court observed that while the respondent’s desire for reconciliation is commendable, the primary consideration in matrimonial disputes involving children is the child’s welfare. The Court noted that the daughter, at 11.5 years of age, is at a critical developmental stage requiring consistent maternal presence. The applicant’s financial dependence and inability to travel to Jalandhar were not mere inconveniences but structural barriers to justice.
"Looking at the age of the child, she requires the assistance of her mother, at all the times. She is bound to be a student. Even, the applicant is not having any source of earning. As such, the applicant is bound to be facing various challenges in upbringing her daughter, more particularly, when she herself is dependent upon her brother, as her father is no more."
The Court rejected the respondent’s argument regarding the applicant’s conduct, holding that such allegations must be adjudicated by the court where the petition is pending, not by the transfer court. The Court also noted that the prior mediation attempt had failed, eliminating any basis for further conciliation efforts by this Court.
The pendency of the BNSS maintenance petition in Faridabad was decisive. The Court held that consolidating all related proceedings - maintenance, custody, and restitution - in one forum minimizes litigation burden on the child and the applicant, and promotes judicial efficiency. The respondent’s active participation in Faridabad proceedings further validated the appropriateness of that forum.
The Verdict
The applicant succeeded. The Court allowed the transfer application and directed that the petition under Section 9 of the Hindu Marriage Act (HMA/89/2025) be transferred from the Family Court, Jalandhar, to the Family Court, Faridabad. The record was ordered to be sent to the District and Sessions Judge, Faridabad, for assignment to the appropriate Family Court. Both parties were directed to appear before the Family Court, Faridabad, within one month from the date of judgment.
What This Means For Similar Cases
Custody and Financial Dependency Override Forum Preference
- Practitioners must now prioritize the child’s welfare and the custodial parent’s practical ability to litigate when opposing or seeking transfer of matrimonial petitions
- Financial vulnerability of the custodial parent is a legally recognized ground for transfer, not merely a plea of hardship
- Courts will not allow procedural technicalities to override the child’s right to consistent care
Consolidation of Related Proceedings Is Mandatory
- Where maintenance, custody, or other family law proceedings are pending in one jurisdiction, courts must consider consolidation of all related matters
- A petition under Section 9 HMA cannot be litigated in isolation if other proceedings involving the same parties and child are pending elsewhere
- The BNSS maintenance petition created a jurisdictional anchor that the Court rightly recognized
Respondent’s Participation in Forum Waives Objection to Transfer
- When a respondent actively appears and participates in proceedings in a particular forum, his subsequent objection to transfer on grounds of forum preference is significantly weakened
- This principle applies even if the respondent initiated proceedings elsewhere
- Courts will view such conduct as implied submission to jurisdiction
