JUDGMENT
R.S. Monica, C.J.
1. The parties before me are the husband and wife. The petitioner is the husband whereas the respondent is the wife.
2. The parties were married to each other in the year 1991 and out of their wedlock a female child was born on 27.9.1992. Between the husband and the wife there are some matrimonial problems, going on and cases are pending against each other in both Civil and Criminal Courts. Respondent (wife) had filed a Misc. Case No. 23/97 in the Court of the District Judge, Lakhimpur for the custody of the minor child. This case under Section 25 of the Guardian and Wards Act was registered on 21.4.1997 as Misc. Case No. 23/97. On 9.5.1997 the following order was passed by the District Judge, Lakhimpur ;
“Record put up on the strength of the petition No. 64/97. Petitioner prays for production of her minor daughter from the custody of the Respondent. Heard the learned counsel for the petitioner. Issue notice to the Respondent to produce the minor daughter on the date fixed as prayed by the petitioner.”
Thereafter another order was passed on 9.7.1997, which is to the following effect:
“Petitioner is present. Advocate for the Opp. Party by filing petition No. 119/97 prays time for production of the minor daughter. Showing cause there on. Prayer is allowed.
5.8.1997 for appearance and production.”
3. Against the aforesaid two orders regarding the production of the minor child before the Guardian Court, the present petition was filed by the husband. On 5.8.1997 while issuing notice to the respondent-wife, the operation of the impugned orders dated 9.5.1997 and 9.7.1997 were stayed.
4. The petitioner (husband) had also filed a petition (Misc. Case No. 46/97) in the Court of the District Judge, Darrang at Mangaldoi for the custody of the child it may be observed here that the child at the moment and at the time of the filing of the aforesaid petition was in the custody of the husband (father of the child). It may further be noticed here that the petition, which was filed by the petitioner (husband) was later in time than the petition filed by the wife. On 18.6.1997, the District Judge, Darrang , Mangaldoi passed and order, which has been appended as Annexure-4 to the present revision petition, in which, inter alia, it was observed as under:
“In the result, the petition No. 233/97 filed under Section 12 read with Section 10 of the Guardians and Wards Act is allowed and an interlocutory order is passed that minor Antara Chanda will remain in the custody of her father (petitioner) in the interest of well being of the minor, until further order.”
5. In the Misc. Case filed by the respondent (wife) for modifying/ Vacating the order dated 5.8.1997(Misc.Case No. 191 /97), a learned Judge of this Court passed an order on 5.11.1997 whereby the records of both the cases, i.e., Misc. Case No. 23/97 pending at Lakhimpur and Misc. Case No. 46/97 pending at Mangaldoi were sent for. Both the records are here in this Court now. It seems that though there was no stay order regarding further proceedings in the respective petitions filed by the wife and the husband. Yet since the lower court records has been sent for no progress has taken place in the matter in the Court below.
6. For the custody of the child the paramount consideration of the Court is the welfare of the minor child. For coming to a conclusion as to what is in the best welfare of the minor, the Court can form its opinion by putting certain questions to the child and also see for itself the behaviour of the child even by holding the Court in camera, It seems that when the order for production of the minor child was passed by the District Judge, Lakhimpur though the child at that time was about 5 years old, the object seemed to be to come to a correct conclusion as to what would be in the best interest of the child and her welfare. Now the child, as observed above, is about 91/2 years. I see no prejudice or harm being caused to any party, if the child is produced before Guardian Court to come to a conclusion as to what is in the best welfare of the minor child so far custody is
concerned.
7. Two Courts at different places are seized of this identical matter as has been observed above. Both the places are about 200 miles apart. I am of the view that both the cases should be clubbed together and tried by one Court. After considering the distance between the two Courts where the cases have already been filed and also considering that if the case filed by the wife is transferred to Mangaldoi she might have to travel a long distance and she being a woman might not go to a place where the husband is residing and vice versa if the case is transferred to Lakhimpur he might have to travel a long distance with the child, it would be in the interest of justice if the case is transferred to a competent Court where the parties are to travel a lesser distance. I am told the Tezpur is almost half-way. In the circumstances, I direct that the aforesaid two cases, i.e. Misc. Case No. 23/97 pending at Lakhimpur and Misc. Case No. 46/97 pending at Mangaldoi be transferred to the District Judge, Sonitpur, Tezpur who would decide the cases in accordance with law. He would fix a date after the parties or the counsel for the parties appear before him for the production of the minor child to enable him to pass further orders regarding the custody of the child. This Revision petition stands disposed of in the above terms.
8. The record of the cases which have been received by this Court be immediately transmitted to the Court of the District Judge, Sonitput, Tezpur. If there is any further record of the cases at Mangaldoi or at North Lakhimpur regarding the same be also transmitted to the District Judge, Sonitpur, Tezpur. The parties through their counsel are directed to appear before the District Judge, Sonitpur, Tezpur on 25.2.2002 to get further order and direction from that Court. Copy of this order be immediately sent to District Judge, Sonitpur, Tezpur, District Judge, Darrang, Mangaldoi and the District Judge, Lakhimpur at Lakhimpur.