IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION(C) NO. 726 OF 2008

NIMISHA BATISH .......PETITIONER(S)  Versus

MAJ. AJAY BATISH & ORS. .....RESPONDENT(S)

O R D E R

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

.....2.

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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.

  ...........................J.    ( R.V. RAVEENDRAN )

New Delhi;    ...........................J.

December 12, 2008.            ( D.K. JAIN )