Justices Surya Kant and J K Maheshwari of the Supreme Court ruled that orders granting visitation rights or temporary child custody cannot be passed in proceedings under Section 9 of the Hindu Marriage Act (Restitution of conjugal rights).

The Bench held that "It appears to us that the petitioner (wife) has been denied a fair trial only because she could not leave the child at Bangaluru and visit Puducherry to contest both the petitions. The respondent (husband) should have filed a separate and independent petition under Section 26 of the Hindu Marriage Act, 1955, instead of securing an Order in the proceedings pending under Section 9 of the Act. The Order dated 03¬06¬2019 giving visitation rights or temporary custody of the child to the respondent (husband) is, thus, patently illegal."

As a result, the court used its powers under Article 142 of the Indian Constitution to dismiss the case. The court then ordered that these proceedings be transferred to the Family Court in Bengaluru.

In this case, the husband petitioned the Family Court in Puducherry under Section 9 of the Hindu Marriage Act, 1955, seeking Restitution of Conjugal Rights against the wife. In these proceedings, he filed an interlocutory application that purported to be a petition for custody of the child under Section 26 of the Act. Both petitions were heard ex parte and then decreed. Following that, the wife petitioned the Supreme Court to transfer the proceedings to the Family Court in Bengaluru. The husband claimed that the Section 9 Petition sought to be transferred by the wife had already been decided, rendering the current Transfer Petition infructuous.

Case Title: Priyanka vs Santoshkumar
Citation: Transfer Petition(Civil)  No.964/2021
Link: 

https://main.sci.gov.in/supremecourt/2021/11261/11261_2021_11_3_40472_Order_08-Dec-2022.pdf