Custody Plea Must Be Heard Where Child Resides

Source: Gujarat High Court

Why in News? 

Justice Maulik J. Shelat of the Gujarat High Court decided X v. Y (2026). The Court held that a custody application under the Guardians and Wards Act, 1890 (GWA) must be heard by the Family Court within whose jurisdiction the children reside, as that court is required to interact with the child before passing any order. The Court dismissed the wife’s transfer application but permitted her to attend proceedings through video conferencing. 

What was the Background of X v. Y (2026) Case? 

• The wife, who was residing with her parents in Rajkot, was living apart from her children, who were in the custody of the husband. 
• She had instituted proceedings under the GWA before the Family Court, Himmatnagar, seeking appointment as guardian and custody/return of the minor children. 
• The husband had also filed a matrimonial suit against her before the Family Court, Himmatnagar. 
• The wife approached the High Court seeking transfer of the husband’s suit from the Family Court, Himmatnagar to the Family Court, Rajkot. 
• Wife’s contentions:  
  • She is an illiterate woman living far away from her children. 
  • The distance of around 300 km between Himmatnagar and Rajkot caused great hardship and inconvenience in attending the proceedings. 
• Husband’s contentions:  
  • The wife herself had instituted GWA proceedings at Himmatnagar, which she was in any case required to attend. 
  • No purpose would be served by transferring his suit to Rajkot. 
  • He was willing to bear her travelling expenses for attending the proceedings in person. 

What were the Court’s Observations? 

On jurisdiction in custody proceedings: 

• It was undisputed that, under the GWA, a custody application must be filed before the court where the children reside, i.e., the Family Court, Himmatnagar. 
• The GWA proceedings could not be transferred to the Family Court, Rajkot, which had no jurisdiction to decide the dispute. 

On the welfare of the child: 

• The welfare of the child is always a paramount consideration for any court. 
• Since the court deciding a GWA application must interact with the child before passing any order, it is more desirable that the matter be decided by the court within whose jurisdiction the children reside. 

On the wife’s hardship: 

• The wife was in any case required to attend the GWA proceedings she had herself instituted at Himmatnagar. 
• She may request the Family Court to permit her to attend both proceedings through video conference. 
• Such a request shall be accepted unless her physical presence is required for cross-examination or otherwise. 

Conclusion: 

• The Court dismissed the transfer application and directed the Family Court, Himmatnagar to expedite both proceedings and decide them in accordance with law, preferably within one year from the date of receipt of the order.

What is the Guardians and Wards Act, 1890? 

About: 

• The GWA is a secular law that governs the appointment and declaration of guardians of the person and property of minors in India. 
• It applies to all minors irrespective of religion and operates alongside personal laws such as the Hindu Minority and Guardianship Act, 1956. 

Key Provisions: 

• Section 9 (Court having jurisdiction):  
  • An application for guardianship of the person of a minor must be made to the District Court having jurisdiction in the place where the minor ordinarily resides. 
  • An application for guardianship of the property of a minor may be made to the District Court where the minor ordinarily resides or where the property is situated. 
• Section 17 (Matters to be considered by the Court):  
  • The court must be guided by what appears to be for the welfare of the minor, considering the minor’s age, sex and religion, the character and capacity of the proposed guardian, and the wishes of a deceased parent. 
  • If the minor is old enough to form an intelligent preference, the court may consider that preference. 
• Section 25 (Custody of ward):  
  • If a ward leaves or is removed from the custody of the guardian, the court may order the ward’s return if it is for the welfare of the ward. 

Jurisdiction of Family Courts: 

• Under Section 7 of the Family Courts Act, 1984, a Family Court exercises the jurisdiction of a District Court in suits and proceedings relating to the guardianship of the person or the custody of, or access to, any minor.