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Alok Motan (Advocate)     30 March 2010

jurisdiction in custody case

Dear All

pls tell me where/what  would be the ordinary place of residence of a child, if the wife has left the matrimonial home of the husband and has started living with her parents in some other state and has got the child admitted in some school where her parents resides....

i have filed a custody petition on behalf of husband, where the husband resides, but the wife has got it transferred in that state where she is residing with her parents at present, along with the child...... the transfer order was obtained from HC of that state where the wife is living now a days...... in my custody petition the wife was proceeded ex-parte and ex-parte evidence was lead....case was reserved for orders/consideration, when suddenly on the date fixed i got to know the case has been transferred vide HC order.....

i was not given any opportunity to appear before the HC, no notices were issued to me while deciding the transfer application of the case....can i go for review of HC order ...???

details of the case : trial court ordered wife ex-parte on 2.03.2010, ex-parte evidences were lead on 22.03.2010, case further fixed for final arguments for 29.03.2010.........on 29.03.2010 trial court transferred the case vide HC order dated 12.03.2010... and i came to know about the transfer order on 29.03.2010 itself...!!!

 

Pls give ur valuable suggestions...urgently......



 2 Replies

Guest (Guest)     30 March 2010

Sir,

Your question gives a little bit confusing signals.  If the place where husband filed custody suit is in State A and the wife has got it transferred in State B vide High Court Order, the order is not sustainable for the simple reason the High Court does not have power to transfer the case pending in the State if it has not got jurisdiction.  From one State to another State, only S.C can transfer the case.

Guest (Guest)     30 March 2010

If both the states fall within the jurisdiction of the High Court, then High Court is competent to transfer.  You have two options.   To file a petition before H.C. to recall the order as you have not been given opportunity.  Or challenge the High Court order of transfer  in Supreme Court for the reason you have not been given oppotunity to contest transfer petition.  If you will not get stay order in the H.C./ S.C. against the proceedings in the transferred court, then contest the case on merits before the court where the matter has been transferred.  


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