Child’s welfare overrides jurisdictional question: HC over custody battle

The case is regarding the custody of an 8-year-old child who lost her mother in an accident in 2023. The custody is being claimed by the child’s aunt in Nasik family court and by the father in Chandrapur. In a petition to transfer the case to Chandrapur, the request was rejected keeping in mind, the child’s welfare and convenience

MUMBAI: The Bombay high court on April 17 rejected a petition requesting the transfer of a child’s custody case from the Nashik family court to its counterpart in Chandrapur, observing that a child’s welfare and convenience overrides the facets of law. The court said that a child’s emotional stability must be taken care of before considering the jurisdictional arguments.

Child’s welfare overrides jurisdictional question: HC over custody battle

The case is regarding the custody of an 8-year-old child who lost her mother in an accident on August 16, 2023. It is said that the child’s parents had some ongoing differences resulting in the mother residing in Nasik at her parental home. After her accidental death, the child’s maternal aunt, Sonali Trushant Walde filed a guardianship petition before the Nashik family court to acquire the child’s custody.

On the other hand, the child’s father, Dhananjay Pundlik Choudhari, filed a counter petition before the principal district judge, Chandrapur family court, seeking custody of the child, asserting that he is the natural guardian of the child. Furthermore, questioning the jurisdiction of Nashik family court, Choudhary approached the Bombay high court, urging it to transfer the case of child’s custody to Chandrapur.

Highlighting the matrimonial disputes between Choudhary and his wife prior to her death, advocate Abhijeet Kandarkar, representing Walde, stated that the child never stayed with the father. On account of the ill-treatment meted out to the mother, she was constrained to take shelter at her parental home along with the child. After the unfortunate death of the mother, Walde took up the responsibility of parenting the child. “In the peculiar facts of the case, the residence of the child at Nashik is her ordinary residence”, he concluded.

Countering this argument, advocate Daksha Punghera, representing Choudhary, urged that the court at Chandrapur only has jurisdictional competence to decide the petition for custody and guardianship. He submitted that the child was residing at Bramhapuri, Chandrapur, when her mother met with the accident. He stated that the marital discord would not alter the jurisdictional competence of the court at Chandrapur, as the child was indisputably residing there and was also enrolled in a school there. Choudhary stated that the guardianship case filed by Wadle has been done surreptitiously which means, secretively filing for the child’s guardianship.

Hearing the arguments of both sides, the bench stated that Walde’s act of taking the responsibility of the minor and bringing her to Nashik, where she had been residing, cannot be termed as surreptitious removal of the custody from her father . Focusing on the element of inconvenience and trauma likely to be caused to the minor, the court stated that the scale of convenience tilts in favour of Walde.

Highlighting that Walde’s visit to Chandrapur to attend the proceedings, while the minor remains at Nashik, is also likely to cause inconvenience to the child, the single-judge bench of justice N.J. Jamadar, rejected the transfer of the case from Nashik to Chandrapur.

The court stated that apart from the duration of residence, the attendant factors which influence the outcome of the order, like the circumstances on account of which the minor came to reside at Nasik, the circumstances in which the minor was made to move out of Chandrapur, the desirability of continued residence of the minor at a given place from the perspective of her welfare, are considered while taking the decision.