The petitioner is the wife and the respondent is the husband. The
respondent has filed a petition under Section 6 of the Hindu Minority and
Guardianship Act read with Section 25 of Guardianship and Ward Act for
custody of the minor son against his wife, in the Court of Civil Judge (Senior
Division), Gurgaon.
The petitioner-wife is permanently residing at Mumbai. She has
filed this petition seeking transfer of the above-mentioned case from
Gurgaon to Mumbai. The objection of the respondent is that in another
transfer petition relating to a then pending divorce proceedings, the parties
had entered into compromise agreeing for divorce by mutual consent and
one of the terms of the said compromise was that the case of custody of
minor son shall be decided by Gurgaon court; and that, therefore, the Court
at Gurgaon shall alone decide the matter.
When the terms of the said compromise are read, it is clear that
the intention was not to confer exclusive
jurisdiction on the Civil Judge (Senior Division), Gurgaon where the custody
dispute was pending, but to merely express that there was no compromise
in regard to that issue and that since the guardianship case was pending in
the Gurgaon Court it shall be decided by that Court.
Admittedly, neither party is staying at Gurgaon. The petitioner is
residing at Mumbai and the petitioner is posted abroad. In fact, it will be
more convenient for the respondent to come to Mumbai to prosecute the
matter than to go over to Gurgaon.
Having regard to the difficulties faced by the petitioner having a
minor son to travel from Mumbai to Gurgaon for every hearing and having
regard to the fact that the respondent himself is not residing in Gurgaon, we
are of the view that this is a fit case for transfer as prayed for.
Accordingly, we direct that Petition No.420/2006 titled Major Ajay
Batish & Ors. Vs. Smt. Nimisha Batish pending in the Court of Learned Civil Judge
(Senior Division), Gurgaon be trasnferred to the Family Court, Mumbai.
Transfer Petition is allowed accordingly.
December 12, 2008. ( D.K. JAIN )