Child custody cases cannot be transferred on mere apprehensions of parties: Supreme Court

The interest of the child is of paramount importance in such cases, Justice Dipankar Datta added.
Child custody
Child custody

The Supreme Court recently emphasised that child custody cases under the Guardians and Wards Act cannot be transferred from one court to another merely based on the apprehensions of parties to the dispute.

The Court made the observation while rejecting a plea filed by a wife to transfer proceedings in a child custody case from Chandigarh to Delhi.

The interest of the child is of paramount importance in such cases, single-judge Justice Dipankar Datta noted.

"No order for transfer ought to be passed on mere assumptions and apprehensions of the parties. The interest of the child being of paramount importance, at this stage, this Court finds no reason to grant the prayer for transfer," the Court's September 22 order stated.

The matter concerned a child custody case pending in Chandigarh. The husband had moved the family court under Section 25 of the Guardians and Wards Act seeking custody of his son.

The wife was working in Panchkula (Haryana), where she was also residing with their son. However, she sought the transfer of the child custody case since she had a transferable job and faced an imminent posting out of Haryana.

Therefore, she sought the continuation of the child custody case in Delhi, where a matrimonial case between her and her estranged husband was already pending.

The husband opposed the transfer plea on the ground that Delhi would be over 250 kilometers away from the child's current residence.

The Supreme Court, in turn, refused to transfer the case out of Chandigarh.

"As at present, Panchkula remains to be the place of office of the petitioner-wife and it is also not in dispute that Chandigarh is the place of her residence as well as that of the child," the Court observed.

The transfer petition was, therefore, dismissed.

Advocates Akanksha Sisodia and Pulkit Tare represented the wife.

Advocates Setu Niket, Esha Mazumdar, Azmat Hayat Amanullah, and Chaitanya Kamal appeared for the husband.

[Read order]

September 2023 Supreme Court transfer petition order.pdf
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