She couldn't travel to court. The judge gave her husband custody anyway.

A mother in Bengaluru couldn't leave her 4-year-old to travel to Puducherry for a court hearing. So the court gave her husband visitation rights — without her there.

The order was passed in a case for restitution of conjugal rights (a legal proceeding asking a spouse to resume living with the other). But the judge in Puducherry didn't stop there. He also granted the husband temporary custody of the child — inside the same case. The Supreme Court would later call this a fundamental error. And it would set aside the order, ruling that child custody cannot be decided in a restitution of conjugal rights case.

She couldn't leave the child

The wife lived in Bengaluru with her minor son, Eshan (born 2015). Her husband had filed a case in Puducherry — a city over 350 kilometres away — seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (a provision that allows one spouse to ask the court to order the other to resume living together).

The wife could not travel to Puducherry. She had a 4-year-old child to care for. There was no one in Bengaluru to leave the boy with. So she did not appear before the Family Court in Puducherry to defend herself. The Family Court file in Puducherry contained only the husband's application. The courtroom proceeded without her.

The court passed an ex-parte decree (a decision made by hearing only one side because the other side did not show up) granting restitution of conjugal rights. That was one order.

Then the court gave him the child

While the Section 9 case was still pending, the husband filed an application — numbered I.A. No.121/2019 — under Section 26 of the Hindu Marriage Act (the provision dealing with custody of children). He wanted visitation rights and temporary custody of the boy.

The Family Court in Puducherry granted that too. Again, without hearing the wife. The order, dated June 3, 2019, gave the husband visitation rights and temporary custody of the child — all within the Section 9 proceedings for restitution of conjugal rights. The order sheet, dated June 3, 2019, carried no trace of the wife's absence.

The wife now faced a situation where a court had ordered her to resume living with her husband, and simultaneously handed her child to him — without her ever having a chance to say a word.

The Supreme Court saw the error

The wife approached the Supreme Court seeking a transfer of the case from Puducherry to Bengaluru. She argued that she had been denied a fair trial because she could not leave her minor child and travel to a distant forum to defend herself.

By the time the Supreme Court heard the matter, the Section 9 petition had already been decided. The husband argued that the transfer petition was now infructuous — pointless, since the main case was over. The Supreme Court rejected that argument. The bench, comprising Justice Surya Kant and Justice J.K. Maheshwari, examined the record and found a deeper problem. The order granting visitation rights and temporary custody had been passed within proceedings under Section 9. That, the court held, was legally impermissible.

"Orders granting visitation rights or temporary child custody cannot be passed in proceedings under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights," the Supreme Court held. "A separate and independent petition under Section 26 of the Act must be filed for such relief."

Two separate remedies, one wrong order

The court's reasoning was straightforward. Section 9 of the Hindu Marriage Act deals only with restitution of conjugal rights — whether one spouse should be ordered to live with the other. Section 26 deals with custody of children. These are separate legal proceedings with separate requirements.

An order granting visitation rights or temporary child custody cannot be passed within Section 9 proceedings. A party seeking such relief must file a separate and independent petition under Section 26. The Family Court in Puducherry had mixed the two together, passing a custody order inside a restitution case without a proper application under the correct provision.

The court also noted that proceeding ex-parte against a mother who could not travel to defend herself, and then passing substantive orders affecting her child, amounted to a denial of fair trial. "Where a party, particularly a mother with custody of a minor child, is unable to travel to a distant forum to defend herself, proceeding ex-parte and passing substantive orders amounts to denial of fair trial," the judgment stated.

What the Supreme Court did

The Supreme Court invoked Article 142 of the Constitution (the power to pass orders necessary for complete justice) to set aside the June 3, 2019 order granting visitation rights and temporary custody. It directed that I.A. No.121/2019 be transferred to the Family Court in Bengaluru, where it would be registered as a separate petition under Section 26.

The court also transferred the wife's application to recall the ex-parte decree under Section 9 to the Bengaluru court. The husband was given the liberty to move an application for interim visitation rights before the Family Court in Bengaluru. All records were to be forwarded forthwith. The Supreme Court's order sheet, signed on December 8, 2022, carried the quiet finality of a procedural correction.

The transfer petition, numbered Transfer Petition (Civil) No. 964/2021, was disposed of on that date. The case is reported as Priyanka v. Santoshkumar, 2022 LiveLaw (SC) 1021.

The boy was never heard

The judgment clarifies a procedural point that often gets overlooked in practice. Restitution of conjugal rights and child custody are distinct legal remedies. A court cannot grant custody within a Section 9 proceeding without a separate petition under Section 26. Mixing the two not only violates the statutory scheme but can also lead to orders that are set aside on appeal — wasting time and causing unnecessary hardship to parties, particularly mothers with young children.

The boy, Eshan, was never given a chance to be heard. The Supreme Court made sure he would be.