In a significant ruling on child custody matters, the Delhi High Court has stated that if a minor child is forcefully relocated by one parent, the new location cannot be considered the child's 'ordinary residence' for the purpose of claiming guardianship jurisdiction.
The decision was made in light of Section 9 of the Guardians and Wards Act, which states that only the District Court where the minor ordinarily resides has the jurisdiction to entertain guardianship petitions.
"For invoking the jurisdiction of the Family Court under the G&W Act, it has to be shown that the minor ‘ordinarily resides’ within its jurisdiction. The forceful removal of a minor child from his original place of residence and shifting him to a new residence will not make him an ordinary resident of the new place,”
— Delhi High Court
A Division Bench of Justices Navin Chawla and Renu Bhatnagar passed this ruling while dealing with an appeal filed by a wife. She challenged a family court order that had dismissed her guardianship petition due to lack of territorial jurisdiction.
The case involved a US-citizen minor child who had been living in the United States with both parents for over five years. The mother kept the child in India without the father's consent, who then filed a Habeas Corpus plea seeking the child’s return.
The Family Court observed that the minor had stayed in Delhi for only 113 days before the guardianship petition was filed. Hence, the court said the child could not be considered an "ordinary resident" of Delhi, and it had no territorial jurisdiction.
The wife argued that since she was living in Delhi with the child and had enrolled him in a school, the child should be considered an ordinary resident of Delhi.
“Such forceful removal/detention, even by a parent, at a place that is not the natural habitation of the minor child, would not render such other place the ordinary place of residence of the minor child,”
— Delhi High Court
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The Court clarified that even though permanent residence is not necessary to invoke jurisdiction under Section 9, the residence must not be illegal or forced.
The judgment referred to the Lahari Sakhamuri v. Sobhan Kodali (2019) case, where a child taken to India despite a US court’s interim order was held not to be an ordinary resident under the G&W Act. Similarly, in Paul Mohinder Gahun v. Selina Gahun (2006), the Court had ruled that forced residence cannot grant jurisdiction.
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“Where the child is removed by mischief to an interim location, the place of his/her original residence would alone have jurisdiction,”
— Delhi High Court quoting Paul Mohinder case
Ultimately, the Delhi High Court ruled that the mother’s act of staying in India and enrolling the child in a school did not change the legal status of the child's residence. The Court issued directions for the return of the child to the original place of residence.
Case Title: Sunaina Rao Kommineni v. Abhiram Balusu
Case Number: MAT.APP.(F.C.) 135/2024
