The Gujarat High Court has held that proceedings seeking custody of a child under Guardians and Wards Act must be heard by the family court in whose jurisdiction the child resides. [2026 LiveLaw (Guj) 291]

The court was hearing an estranged wife's plea to transfer the husband's matrimonial suit from Family Court, Himmatnagar to Family Court, Rajkot where she is residing with her parents.

She said that she is an illiterate lady who is residing far away from her children and to get custody of her children who are currently possessed by the opponent/husband – father, she has instituted proceedings under the Guardians and Wards Act at Family Court, Himmatnagar. The wife had lodged proceedings seeking appointment of  guardianship and seeking custody/return of the minor child.

She said that the husband has filed adverse proceeding before the Family Court, Himmatnagar and considering the distance between Himmatnagar and Rajkot which is around 300kms, it causes great hardship and inconvenience to the applicant to attend the proceeding instituted by husband.

The husband claimed that since the applicant has herself instituted a proceeding under Guardians and Wards Act at Family Court in Himmatnagar and such the proceeding is required to be attended by the applicant, there is no purpose served in transferring the proceeding instituted by husband from Family Court, Himmatnagar to Family Court, Rajkot.

Justice Maulik J Shelat noted that the wife had herself instituted proceeding under the Guardians and Wards Act before  Family Court, Himmatnagar and such proceeding is required to be attended by her.

The court said that it was not disputed that as per the provisions of the Act the applications seeking custody is required to be "led before the Court where the children are residing," i.e., Family Court, Himmatnagar.

"If such would be the case, according to my view, the proceeding instituted by the applicant under the provisions of the Act, 1890 cannot be transferred from Family Court, Himmatnagar to Family Court, Rajkot, which has no jurisdiction to decide the lis between the parties. Apart from the aforesaid dispute between the parties, so far as the welfare of child is concerned, it is always a paramount consideration for any Court.

Since the application was instituted by the applicant under the Act, 1890 and to adjudicate such application, the Court concerned who has jurisdiction is required to interact with the child before passing any order, it is more desirable that it should be heard and adjudicated by the Court within whose jurisdiction the children are residing, i.e., Family Court, Himmatnagar," the court said. 

The court also noted the husband's submission that he would pay for wife's travelling expenses in case she personally attends proceedings. 

"It is open for the applicant to request the Court concerned to allow her to attend both the proceedings through video conference. As and when such request will be made, the same shall be accepted by the Family Court concerned, unless her physical presence is required for her cross-examination or otherwise," the court said. 

Dismissing the wife's plea, the court asked the Family Court Himmatnagar to expedite both the proceedings and decide it in accordance with law as early as possible preferably within one year from the date of receipt of copy of the high court order.