Can a court grant child custody in a restitution of conjugal rights case?

She couldn't travel to court with her 4-year-old. So the judge gave her husband custody—without hearing her.

The order was signed on a June afternoon in Puducherry. The wife was 2,000 kilometres away in Bengaluru, alone with a toddler. She hadn't missed court out of defiance. She simply couldn't afford to drag a four-year-old across two states for a hearing. The Family Court in Puducherry didn't pause. It passed an ex-parte decree (a decision made by hearing only one side because the other side did not show up) granting the husband restitution of conjugal rights—and then, in the same proceedings, gave him visitation rights and temporary custody of the child. In the courtroom, the only sound was the rustle of paper as the judge signed the order; the chair where the wife should have sat remained empty.

The Supreme Court would later call that order "patently illegal." But by then, the wife had already lost something harder to recover: the chance to be heard before a judge decided where her son would sleep at night.

When the summons landed but the mother could not move

The wife and husband married and had a son, born on 4 November 2015. The couple separated. The wife moved to Bengaluru with the child. The husband stayed in Puducherry and filed a case at the Family Court there, seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (a legal provision that allows one spouse to ask the court to order the other spouse to resume living together as husband and wife).

The wife could not travel to Puducherry for the hearings. She had the minor child with her in Bengaluru, and no one to leave him with. She did not appear. The Puducherry court proceeded ex-parte and granted the husband a decree for restitution of conjugal rights. The silence in the courtroom that day was broken only by the clerk calling out a name that received no answer.

But the husband did not stop there. Within the same Section 9 proceedings, he filed an interlocutory application—I.A. No. 121/2019—seeking custody of the child. The Family Court entertained it, purportedly under Section 26 of the Hindu Marriage Act (the provision that deals with custody of children in matrimonial cases). Without hearing the wife, the court granted the husband visitation rights, including temporary custody of the child. The wife had not even known the application was filed.

"You cannot smuggle custody into a conjugal rights case"

The wife approached the Supreme Court through a transfer petition—a request to move the entire case from Puducherry to Bengaluru so she could participate. When the bench of Justice Surya Kant and Justice J.K. Maheshwari examined the record, they found a fundamental legal error that went beyond procedure. The bench leaned forward as they read the order, the weight of the file seeming to press down on the table.

The Family Court had passed a custody order inside a Section 9 proceeding. The Supreme Court held that this was impermissible. As the judgment stated: "Orders giving visitation rights or temporary child custody cannot be passed in proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights." Section 9 deals only with restitution of conjugal rights—whether one spouse can compel the other to resume cohabitation. It does not give the court jurisdiction to decide who gets custody of a child. That relief must be sought through a separate and independent petition under Section 26.

The distinction matters. Section 9 proceedings are about the marital relationship between two adults. Section 26 proceedings are about the welfare of the child. They involve different evidence, different considerations, and—crucially—different standards of proof. A child's custody cannot be decided as an afterthought in a case where the child is not even the subject of the dispute.

The court also noted that the wife had been denied a fair trial. She could not travel to Puducherry because she had custody of a minor child. The Family Court knew this. Yet it proceeded ex-parte and granted relief against her without making any effort to ensure her participation. The Supreme Court further held: "When a party with custody of a minor child is unable to travel to a distant forum, and proceedings are decreed ex-parte in consequence, such party has been denied a fair trial."

The order that got set aside

The Supreme Court invoked Article 142 of the Constitution (the Supreme Court's power to pass any order necessary to do complete justice in a case before it) to set aside the Family Court's order dated 3 June 2019 that had granted visitation rights and temporary custody to the husband.

The court then transferred the entire matter to the Family Court in Bengaluru. It directed that I.A. No. 121/2019—the husband's custody application—be registered as a separate petition under Section 26 and decided on its own merits. The husband was given the liberty to move for interim visitation rights before the Bengaluru Family Court. The wife's application to recall the ex-parte decree under Section 9 was also transferred to Bengaluru for fresh adjudication.

The judgment was delivered on 8 December 2022, in Transfer Petition (Civil) No. 964/2021, reported as Priyanka v. Santoshkumar, 2022 LiveLaw (SC) 1021. As the bench pronounced the operative order, the courtroom fell still—a rare moment of quiet in a case that had already caused too much silence.

The procedural journey in detail

The case wound its way through two forums before reaching the Supreme Court. First, the Family Court in Puducherry entertained the husband's petition under Section 9 of the Hindu Marriage Act. Because the wife could not appear, the court passed an ex-parte decree for restitution of conjugal rights. Then, within those same Section 9 proceedings, the husband filed I.A. No. 121/2019. The Family Court, on 3 June 2019, passed an ex-parte order granting visitation rights and temporary custody to the husband—again without hearing the wife.

The wife then filed a transfer petition before the Supreme Court, seeking to move the entire case from Puducherry to Bengaluru. The Supreme Court, on 8 December 2022, set aside the 3 June 2019 order, holding it patently illegal. The court transferred both I.A. No. 121/2019 and the wife's application to recall the ex-parte decree to the Family Court in Bengaluru. I.A. No. 121/2019 was directed to be registered as a separate petition under Section 26 and decided on its own merits. The husband was permitted to move for interim visitation rights before the Bengaluru Family Court.

What this means for family court practice

The ruling draws a clear procedural line. A spouse cannot use a restitution of conjugal rights case as a backdoor to obtain custody or visitation orders. If a parent wants custody, they must file a separate petition under Section 26. The two remedies are distinct, and one cannot be smuggled inside the other.

For lawyers practicing family law, this judgment is a reminder that the welfare of the child requires its own proceeding, its own hearing, and its own evidence. A child's custody is not a side issue to be resolved while deciding whether two adults should live together. The Supreme Court's ratio makes this explicit: a separate and independent petition under Section 26 must be filed for such relief.

THE PLAY: If you seek child custody or visitation, file a separate petition under Section 26 of the Hindu Marriage Act—never as an interlocutory application within a Section 9 restitution proceeding.

The mother who could not travel to Puducherry never got to tell her side of the story. The Supreme Court made sure she would get that chance—in a court closer to home, in a case where the only question would be what was best for her son. The empty chair in Puducherry will be filled in Bengaluru.